National Scholar Updates

The authors are associated with the Center for Women's Justice, in Jerusalem, www.cwj.org.il. The Center represented convert "X" in her struggles with the Israeli rabbinic courts, and won the case on her behalf. This report of the proceedings is a stark reminder of injustices within the rabbinic court system in Israel, and the need for the public to work together to change the system dramatically.

Table of Contents

Overview.. 3

Timeline. 3

About CWJ4

CWJ's position. 4

Background. 5

The Conversion. 5

The Conversion Annulment 15 Years Later. 6

The Appeal to the High Rabbinic Court7

The interrogation of Michal in the High Rabbinic Court July 2007. 7

The Shock. 9

Michal’s Petition to the High Court of Justice. 9

The Interrogation in the Tel Aviv District Court (Michal's Affidavit), June 2009- March 2010 10

Hearing on September 7, 2009 – Michal and A are Examined. 11

The Hearing on October 20, 2009 – Michal and Mr. P are Examined. 13

Interrogations on March 15, 2010 – Michal and Avi are Examined. 15

Exhaustion and humiliation as a result of the interrogation. 17

What’s Next: From Michal to You. 19

Questions for Discussion. 22

Some Rabbinic Sources. 23

References and Links. 24

Overview
This is the story of "X" (hereinafter: "Michal#_edn1" name="_ednref1" title="">"), a Jewish convert in Israel whose status as a Jew became the subject of unwarranted and seemingly unending interrogations by Israeli rabbinic courts 17 years after her conversion. The booklet tells the story of how Michal converted to Judaism, had her conversion revoked, and then had it reinstated. The story reveals the interrogations that Michal endured at the hands of the rabbinic courts. The affidavit that Michal submitted to the High Court of Justice is set forth almost in its entirety.

Timeline
January 2007. Michal and her husband filed a joint petition to the Ashdod Rabbinic Court asking to arrange for an amicable divorce. During the divorce proceeding, the rabbi in charge asked Michal a number of questions regarding her religious practices. Instead of a divorce decree, Michal received a decision revoking her conversion, and placing her Jewishness in question.

April 2007. Michal appealed this decision to the High Rabbinic Court. As part of the appeal, the High Rabbinic Court headed by Rabbi Avraham Sherman, subjected Michal to intense interrogation regarding her conversion and her life-style subsequent to the conversion.

February 2008. The High Rabbinic Court affirmed the Ashdod decision revoking Michal's conversion.

June 2008.CWJ asked High Court of Justice to vacate the decisions of the Ashdod Rabbinic Court and the High Rabbinic Court and to declare that those Courts had acted outside of their jurisdiction and had infringed on the due process of our client.

May 2009. The High Court of Justice recommended that Michal be sent back to the Tel Aviv Rabbinic Court to review the holdings of the Ashdod and High Rabbinic Courts. The Tel Aviv Rabbinic Court subjected Michal to another round of interrogations that were no less trying than the ones she endured at the hands of the Ashdod and High Rabbinic Courts.

September 2010. The Tel Aviv Rabbinic Court held that Michal's original conversion was valid and that she and her children are Jews. In response, CWJ has asked the High Court to rule on the question of whether a rabbinic court In Israel has the authority to overturn conversions. CWJ, as well as Michal, anxiously await the answer to this critical question.

About CWJ
CWJ, a public interest law organization established in 2004, is dedicated to defending and protect the rights of women in Israel to equality, dignity and justice in Jewish law. The Public Interest Litigation Project of CWJ addresses problems of Israeli women living under religious laws, including the issues of the agunah (woman denied divorce), mamzer (child born to adulterous women), and converts (usually women).

CWJ promotes solutions to the challenge of the status of Jewish women by filing strategic lawsuits in Israeli secular courts, based on the understanding that change will not come from dealing with individual cases within rabbinic courts, but only when civil courts take responsibility to advance systemic change on behalf of women. These strategic lawsuits include damage suits in family courts, cases of rabbinic violations of “natural justice” in the High Court of Justice”, and select cases in the rabbinic court.

CWJ accompanied Michal throughout the entire process and represented her both in the High Court of Justice and in the District and High Rabbinic Courts. CWJ will continue to fight for the dignity and rights of converts in Israel and aims to bring this crucial issue to the public attention.

CWJ's position
It is CWJ's position that rabbinic courts do not have the authority to reverse conversions and that they should be forbidden from ever interrogating converts regarding their religious conduct.

There are thousands of converts currently living in Israel. Since the 2008 decision of the High Rabbinic Court, all of these conversions are at risk. If the current practice of interrogating converts regarding their religious practices is not banned, Rabbinic Courts can interrogate converts with regard to their religious practices at various instances – when they want to divorce, when they want to marry, and when their children want to marry. Converts should not have to live under the threat of close examination of their deeds or the threat of having their Jewish status and identity retroactively revoked.

Allowing this practice greatly impacts on the willingness of any person to undergo the conversion process in Israel, a fact that ironically undermines the very goals of the rabbinic courts to prevent intermarriages in the State of Israel.

Background
The Conversion
Michal was born in Europe and met “A.” [hereafter “Avi”], an Israeli man twenty years ago, while she was travelling abroad in Asia. Michal fell in love with Avi, came to Israel, and decided to stay. Michal began the lengthy process of conversion, which took about two years. Michal’s family objected to her desire to convert and for this reason cut off all contact with her. After a long period of Jewish studies, Michal passed all the relevant examinations for conversion, and the Special Rabbinic Court for Conversion headed by Rabbi Hayim Druckman accepted her for conversion. After her conversion, Michal married Avi in a Jewish wedding ceremony in accordance with Jewish law.

Michal realized her dream and built a Jewish home together with Avi in Israel. Like Ruth the Moabite, Michal considered Judaism her religion, the people of Israel her people, and the Land of Israel her home. Michal had the wholehearted support of Avi’s family and her own family of origin eventually accepted her back as their daughter because they understood that she was determined to be a Jew and to live in Israel. Michal and Aviestablished a lovely family and have three children.

Comment: “Matters of conversion” do not fall within the jurisdiction accorded to the rabbinic courts by statute under the Rabbinic Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953. Nor does any other statute give the rabbinic courts express jurisdiction over conversion. This is not accidental. The legislature refrained – consciously – from subjecting matters of conversion to the jurisdiction of the rabbinic courts.
In the 1990’s, after the immigration to Israel of around 300,000 immigrants from the FSU and Ethiopia, there was a great demand and national need for conversion. In 1995, in a decision of the Prime Minister’s Office, Special Rabbinic Courts for Conversion were established in order to regulate the subject of conversion. The Special Rabbinic Courts for Conversion are not part of the regular rabbinic courts and their jurisdiction does not stem from any particular legislation.

The Conversion Annulment 15 Years Later
After 15 years of marriage, Michal and Avisadly decided to divorce, a decision about which they were in complete agreement. The two went to the Regional Rabbinic Court in Ashdod with a divorce agreement signed and authorized before the civil court and asked the rabbinic court to conduct the ceremony necessary to carry out the divorce. While getting ready to conduct the divorce ceremony, the rabbinic judge, Rabbi Avraham Atiya, interrupted the proceedings and casually asked Michal two completely unrelated questions: “Do you use the electricity on Shabbat?” and “Do you go to the mikveh?” Michal had no idea that her spontaneous answers to these two irrelevant questions would form the basis of a decision to nullify her conversion and register her and her children in the blacklist of those "ineligible for marriage" to Jews in the State of Israel.

Comment: The State of Israel has a blacklist of “those ineligible to marry” Jews in Israel. This list includes, among others, those who are defined as mamzerim (bastards), women who are temporarily prohibited from marrying because of claims that the get should be vacated (bitul get), and converts whose conversions are deemed to be in doubt by the rabbinic court.

Michal had no idea what was going on. Indeed, in the hearing room, the rabbinic judge did not say one word to Michal asserting that he was contemplating the validity of her conversation. Michal went through the divorce ritual like any other Jewish woman, and was sent home without anyone informing her of the judge’s intentions motives. Only after repeated futile attempts by Michal to obtain her certificate of divorce did she realize that something was amiss.

Several months after the divorce, Michal received a nine-page judgment ruling that her conversion was invalid and that she and her children were to be put on the blacklist of people who are ineligible to marry Jews in Israel. Over the next months, Michal received three addendums to the initial judgment that together comprise a 46-page document.

Comment: In the 46 official pages of the rabbinic court judgment, there is only one sentence – 12 words – that explains the decision to annul Michal’s conversion. The rest of the document relates very generally to the conversions performed by Rabbi Druckman, Rabbi Avior, the military rabbinic courts, and Rabbi Yisrael Rosen, and expresses the overarching view of the rabbinic court judge regarding who has authority to perform conversions in Israel.

The Appeal to the High Rabbinic Court
Represented by Rivkah Lubitch, a rabbinic court pleader who heads the Center for Women’s Justice Haifa office, Michal appealed the Ashdod Rabbinic Court ruling that held that she was not Jewish. CWJ argued that the Court had exceeded its jurisdiction by asking questions that were irrelevant to the amicable divorce, and that in any event halakha did not allow for the repeal of a conversion on any grounds. Among other things, CWJ argued that the Torah warns against the mistreatment of converts no less than 36 times, and that, according to the Talmud, even a convert who returns to "idol worship" remains unequivocally a Jew.#_edn2" name="_ednref2" title="">

Instead of ruling on our legal arguments, the High Rabbinic Court judges decided to interrogate Michal and Aviregarding their Jewish lifestyle.

The interrogation of Michal in the High Rabbinic Court July 2007
Michal was asked to leave the courtroom at the beginning while Aviwas interrogated at length about a whole series of issues: how he met Michal; what they studied to prepare for their conversion; what their relationship with the adoptive family#_edn3" name="_ednref3" title=""> assigned to help Michal through the conversion process was like before and after the conversion; their observance of the commandments (mitzvoth) after the conversion; and their sexual relations during the period that they were studying for conversion. Aviwas also questioned about his religious studies during the period prior to the conversion and how he changed after the conversion. He was also asked about the Special Conversion Court: How many times had the court required him to appear before the court, what questions did they ask, and how was the ritual immersion in the mikveh conducted.

When Avi’s interview was over, he was asked to leave the courtroom and Michal was called in for her own interrogation. The court questioned her about her parents’ religion, her connection to Judaism, how she met Avi, her decision to immigrate to Israel, the extent to which Aviobeyed the mitzvoth, changes that Avimay have undergone as a result of the conversion; and their relationship with the adoptive family. Michal told the judges that during the period that they were studying for the conversion, the couple obeyed mitzvoth (they refrained from mixing meat and milk, and lived in separate rooms at Avi’s parents' home). Michal was also asked many questions about her studies under the auspices of the Special Conversion Court, about the relationship of that Court with Rabbi Druckman and about the questions that the Court asked her prior to the conversion ceremony itself. Michal was asked about the mikveh and explained how embarrassed she had been to stand in a room with three rabbis in a robe that clung tightly to her body. She was asked about her relationship with her parents and she explained that her parents had cut off contact with her until the birth of their first baby. She also explained how, subsequent to the conversion, she had sent the children to religious kindergartens, kept kosher, lit Shabbat candles, and celebrated the Jewish holidays. Michal also described her close relationship with her adoptive family.

In a 49-page judgment issued In February 2008, the High Rabbinic Court, headed by Rabbi Avraham Sherman, affirmed the 2007 decision of Rabbi Atiya of the Ashdod Rabbinic Court, and ruled that indeed there is "doubt" (safeq) regarding the Jewishness of Michal and her children and their fitness to marry, and therefore they should be registered in the list of those prohibited to marry until further examination of their Jewishness and fitness in the Regional Rabbinic Court. Fourteen additional pages of reasons written by Rabbinic Judge Hagai Izirer were published at a much later stage.

Comment: The High Rabbinic Court ruled that all of the conversions performed by Rabbi Druckman and Rabbi Avior since 1999 are invalid, and that marriage registrars have the authority to refuse to register a convert for marriage if he or she does not have a religious appearance. These rulings caused a public outcry in both secular and religious Zionist communities because they undermine the validity of the thousands of conversions in Israel and reflect the rabbinic court’s disdain for the Special Rabbinic Courts for Conversion, in general, and Rabbi Druckman, in particular.

The Shock
Michal and her family were in shock. Michal never imagined that her conversion could be annulled out of the blue. She never imagined that her children, who were raised as Jews in every respect, could be labeled non-Jews with one swift movement. They were Jews; they celebrated Shabbat and Jewish holidays, went to religious schools from pre-school, and conducted circumcision and pidyon ben (redemption of the first born son) and bar mitzvah ceremonies. Avi’s mother, a Holocaust survivor, was appalled at the thought that her grandchildren had suddenly become non-Jews. The family was stripped of its most basic identity as a Jewish family. In order to protect the children from the emotional whirlwind they were caught up in, Michal and Avidecided not to tell them about the ruling, although they clearly understood that when the time would come for them to marry, and they would be forced to learn that the State of Israel does not recognize them as Jews suitable to marry other Jews, they would need professional psychological advice. Michal drew strength from the public support that she received. Michal’s story even made headlines in her country of birth, where people were also angry. Many religious Zionist rabbis spoke out against the injustice done to Michal and her family as well as to Rabbi Druckman and his tribunal. The religious family who had “adopted” Michal during the conversion process and accompanied her throughout that process steadfastly supported her again. Moreover, the rabbis who perform conversions in the Special Rabbinic Court for Conversion argued strongly that there was no such thing as “annulment of a conversion” and that as far as they were concerned, Michal is Jewish in every way.

Comment: Despite of the outpouring of support from the religious-Zionist public, Michal understood that the rabbinic statements that “from our perspective she is a Jew in every way” does not hold much weight, and that changing the ruling was the only way to remover her name and her children’s names from the list of those "ineligible to marry" in the State of Israel.

Michal’s Petition to the High Court of Justice
In June 2008, CWJ filed a petition tothe High Court of Justice on behalf of Michal requesting to invalidate the ruling that repealed her conversion. Michal was represented by CWJ attorneys Susan Weiss and Yifat Frankenberg and Dr. Aviad HaCohen, a CWJ board member. They argued that the rabbinic courts had deviated from "natural justice" when they adjudicated matters that were not before them and that they acted beyond their authority when they made a determination in matters of conversion that were not within the purview of their jurisdiction. Many organizations joined the petition, including: Na’amat, WIZO, Ne’emanei Torah V’Avodah, Mavoi Satum, Emunah, Kolech, The Rackman Center for the Advancement of Women’s Status, Granit, Shvut Am and the Ohr Torah Stone Institutions.

In the first hearing in May 2009, the Legal Advisor to the rabbinic courts suggested that the problem could be resolved within the framework of the Regional Rabbinic Court which could repeal the annulment of Michal’s conversion. The Legal Advisor hinted that it would be possible to find a panel of judges in the rabbinic court that would determine that T’s conversion was valid. The justices sitting in the High Court of Justice also thought it preferable to go back and “take care of the matter in the rabbinic court.” The High Court set a date for a further hearing regarding the petition in one year's time, and ruled that until then, all parties should make efforts to arrive at a solution to the problem within the framework of the rabbinic court. For this reason, Michal and Avireturned to the rabbinic court for three more days of interrogation.

The Interrogation in the Tel Aviv District Court (Michal's Affidavit), June 2009- March 2010
Before the second hearing before the High Court of Justice, Michal submitted a letter to the court written in the form of an affidavit. In this affidavit, Michal summarized what had happened to her during the three hearings of the rabbinic court.

We have called Michal’s affidavit “The Interrogation”. It is included here verbatim, just as it was submitted to the High Court of Justice. All identifying details have been omitted.

During the hearing in the High Court of Justice that took place on May 18, 2009, Advocate Shimon Yaakobi, Legal Advisor to the Rabbinic Courts, suggested to the Honorable Justices of the High Court of Justice that the problem of the annulment of my conversion could be resolved in the framework of the regional rabbinic court. The Honorable Justice Dorit Beinisch recommended that my attorneys make an effort to resolve the proceeding before the rabbinic court.
On June 7, 2009, Rivkah Lubitch, a rabbinic court pleader from the Center for Women’s Justice who represents me (hereinafter: “the rabbinic court pleader”), filed a petition for me in the rabbinic court entitled: "Request for the Correction of Personal Status"#_edn4" name="_ednref4" title=""> …. All this was in accordance with the telephone instructions of the Legal Advisor to the Rabbinic Courts, Advocate Shimon Yaakobi. The motion filed by the rabbinic court pleader on May 25, 2009, is attached to this affidavit.#_edn5" name="_ednref5" title="">
Hearing on September 7, 2009 – Michal and A are Examined
On September 7, 2009, I arrived at the hearing set for 11:30 together with Avi [my ex-husband] and the rabbinic court pleader.
We waited for more than two hours in the hall of the rabbinic courts. Rabbi B. was available to receive us in his office, but we had to wait until two more rabbinic judges were available. Every time a rabbinic judge came to Rabbi B.’s office he left to go somewhere else before the third rabbinic judge arrived. The clerk apologized for the delay several times. In the end, although we had been summoned for 11:30, we waited until after the mincha [afternoon] prayer service [around 1:00].
Despite the long wait, the hearing began well. The three rabbinic judges cross-examined me at length. I was asked about my background, how I met Avi, my life prior to the conversion, my religious observance after the conversion, education of our children, kashrut, Shabbat, my immersion in the mikveh [ritual bath] for the purpose of the conversion, and more.
I told the rabbinic judges, among other things, that we observed Shabbat after my conversion; that we did not travel on Shabbat, that I lit Shabbat candles and that we went to synagogue. I told them that even now I build a sukkah on Sukkot and that our son was called up to the Torah on his bar mitzvah, which took place in the midst of the proceeding that involved the annulment of my conversion. I told them that during a lengthy period of time after the children were born I drove them to nursery school in …, which is a religious settlement, so that they would receive a religious education. I also told them that we have maintained a strong relationship with the adoptive family – the P.s - a religious family and that “the adoptive father” (hereinafter: “Mr. P.”) put up a mezuzah for me in the new business I opened.
I also told the rabbinic judges that it was hard for me to be immersed in the water in the mikveh [for my conversion] in a transparent robe in the presence of three rabbinic judges.
Afterwards, I was asked to leave the office and Aviwas brought into the office and examined. He was asked about how we met, about our living arrangements before the conversion, about the conversion process I went through, about his parents (their background and their religious level) about the changes in our life in the wake of the conversion, about our relationship with the adoptive family, and more.
The rabbinic court was happy to hear that we were still in close contact with the adoptive family that accompanied us during the period of study that had preceded the conversion, and decided to summon Mr. P. Rabbi B. said that there was no need to trouble both members of the “adoptive” couple to appear. It would be enough if the husband came.
Orally, Rabbi B. said that there was no need to trouble me to come to the hearing in which Mr. P. would appear. It was clear beyond any doubt that Avihad already finished his role in the testimony. It was agreed upon orally with Rabbi B. that the rabbinic court pleader and Mr. P. would come by themselves.
From all of these discussions and the atmosphere in the court, we had no doubt that the matter would soon be satisfactorily resolved.
The rabbinic court pleader was asked to send a proper motion with suggested dates that were convenient for her and for Mr. P. The rabbinic court asked the rabbinic court pleader to suggest dates on Tuesdays or Wednesdays, with a preference for Tuesdays.
The rabbinic court pleader submitted a motion on September 10, 2009, with a number of dates that were convenient for her and for Mr. P. up to the court recess.
In a telephone conversation that the pleader later received from the rabbinic court, it turned out that the dates that the rabbinic court pleader had suggested were not convenient for the rabbinic court. The rabbinic court pleader was asked to suggest other dates that fell [after the court recess], and on Tuesdays only.
On September 14, 2009, the rabbinic court pleader sent alternative dates.
The rabbinic court pleader was summoned, through a call to her cellular phone, to a hearing in the rabbinic court with Mr. P., set for October 20, 2009.
On October 19, 2009, a day before the hearing, the rabbinic court pleader notified me that I also had to appear at the hearing. According to her, in spite of the fact that Rabbi B. had told me orally that I did not have to come, Rabbi B. called her cellphone and said “there might be other rabbinic judges … maybe one of the rabbinic judges will want to ask her something after all …” and therefore it would be very worthwhile for me to come.
Even though I already had plans for that day (I was busy opening a new business), I canceled everything and came to the hearing on October 20, 2009 with the rabbinic court pleader and Mr. P.
The Hearing on October 20, 2009 – Michal and Mr. P are Examined
I came to the hearing on October 20, 2009 with Mr. P and the rabbinic court pleader. Like the previous time, we waited a long time for the hearing to begin.
To my surprise, when we went into Rabbi B.’s office, it turned out that the two rabbinic judges that were sitting with Rabbi B. were different from those who had sat with him at the previous session.
It was clear that not only did the new rabbinic judges not know me, they also were not familiar with the file, and had not studied the pleadings at all before the hearing (one of the rabbinic judges even told us this). I was again asked preliminary questions by the rabbinic judges about my conversion, the mikveh, my religious observance, Shabbat, Sukkot, education of the children, kashrut, etc.
Although I was angry at first that the examination was repetitious and I demonstrated some opposition, the rabbis explained to me that they have to hear everything from the beginning. Even the rabbinic court pleader complained about the repetition of the examination and suggested that the rabbinic judges refer to the previous transcript, but they noted that they needed to hear the testimony directly from me. The rabbinic court pleader calmed me down, and I answered all of the questions in an appropriate manner.
I told the rabbinic judges about my conversion curriculum and how we learned about holidays and religious observance, that I had a close relationship with my adoptive family and about my relationship with the wife of the rabbi who taught me for the conversion. I also told them that it had been difficult for me to go to the mikveh but that I had done so even after the conversion at least once – before the wedding.
To the rabbinic judges’ question “How do you define yourself today?” I answered that I don’t want to box myself into any one sector. I see myself as a Jewish woman. I again told them that to this day I light candles before Shabbat and that I [do not cook on the Shabbat] only cook before Shabbat, I don’t eat chametz on Passover and that I celebrate the holidays. Regarding kashrut, I said that we are vegetarians and therefore it’s not difficult for us to keep kosher. I again told the rabbinic judges that for a long time we drove our children to nursery schools in … at some distance from our home, so that they would receive a religious education.
I made it clear to the rabbinic judges that I left a religion and joined the Jewish people in order to be a Jew. This is my religion and I have no other religion. I did this against my parents’ wishes. I quarreled with my family in order to become a Jew. Only after my child was born did my parents accept the change that I had made and the relationship between us was renewed.
After this, Mr. P, was summoned into the rabbinic judges’ office and I was asked to leave the office. According to the rabbinic court pleader, Mr. P. was interrogated at length about his relationship with me both before and after the conversion, about my religious observance, about how he felt when my conversion was called into question, about my religious identity and about Avi’s religious identity. He said that we always observed Shabbat when we were guests in his home, and that the children received a religious education. He told them about the strong relationship between us and that he never saw me in immodest clothing.
Despite the fact that, as stated, I wasn’t happy about being examined a second time, the hearing was conducted in a positive manner and it was clear to everyone at the end that there would be no more deliberations and that we were just needed to wait for a written decision.
At the end of the hearing, the rabbinic court pleader asked the clerk to send her the transcript and decision from the hearing that had been held that day (October 10, 2009), as well as those of the previous hearing (from September 7, 2009). When the rabbinic court pleader received the transcripts in the mail, she was surprised to discover that the [names of the] two other rabbinic judges who had sat with Rabbi B. in the first hearing were expunged from the transcript as if they hadn’t been there at all. In effect, from the transcript from September 7, 2009, it appears as if Rabbi B. sat in the hearing by himself.#_edn6" name="_ednref6" title="">
At this stage we waited anxiously every day to receive the decision from the rabbinic court regarding my Jewishness and that of my children.
In the December 24, 2009 decision of the rabbinic court, which relates to the fact that my pleader stated that she had no further witnesses to bring, it was stated thus: “The woman [and her counsel] are making a fundamental mistake in terms of their understanding of the need for a hearing before this court. The Rabbinic Court cannot support a ruling that she is a proper convert just because she has a certificate of conversion recognized by the Chief Rabbinate.… Therefore, we must thoroughly investigate the matter, and since she has notified us that she has no further witnesses, it remains for us only to hear the testimony of her [former] husband … We are setting a date for …. The Petitioner must appear with Avi.
Since hearings in the matter [of my conversion] were being conducted in a manner less formal than ordinary hearings, we did not receive a standard summons in the mail for the first two hearings. We did not complain about this because we understood that my case was getting special treatment. #_edn7" name="_ednref7" title="">
Interrogationson March 15, 2010 – Michal and Aviare Examined
I came to the hearing on March 15, 2010, with Aviand with the rabbinic court pleader. As on previous occasions, we waited a long time, nervously, until we went in [to the courtroom].
This time as well, the rabbinic judges sitting with Rabbi B. had changed. One of the rabbinic judges was familiar from the first hearing (even though his name does not appear in the transcript), and the second rabbinic judge was completely new to the case.
The rabbinic court first had Avienter and I stayed outside. Aviwas examined at length, despite the fact that he had already been examined at the first hearing on September 7, 2009. Aviwas asked about his and my religious observance, the education of our children in religious institutions in the early years, our relationship with the adoptive family, etc.
After the rabbinic judges finished asking Aviquestions, he volunteered to tell them that we had held a pidyon ben for our eldest son. The rabbinic judges immediately started to examine Aviregarding details of the ceremony. They asked him on what day exactly we held the ceremony. The rabbinic judges asked Aviif the ceremony was before the brit milah, or after it. Afterwards they asked if the pidyon ben had been on the same day as the brit. Avi, who knows that a pidyon ben takes place on the thirtieth day, was upset by the rabbinic judges' questions and felt that he had failed the examination.
Afterwards, Aviwas asked to leave the office and I was asked to go in. I was examined again, for the third time in the regional rabbinic court, about my Jewishness. I was asked about observance of kashrut, about serving food and drinks on Shabbat, about how long after the conversion we continued to be religiously observant, etc.
This time the rabbinic judges focused on the question of how I ate hot food and how I drank coffee on Shabbat during the period of time after the conversion. They examined me about whether or not there was a hot plate to warm food on Shabbat, and if we had an appliance for hot water for Shabbat.
Despite the fact that it was clear that this was to have been the last hearing, at the end of the hearing the rabbinic judges remarked that it would be worthwhile to bring still another witness if we had one. When the rabbinic court pleader complained about the fact that the hearings were being dragged out and it was not clear how many witnesses we would have to bring, one of the rabbinic judges said: “It’s best if you bring as many witnesses as possible.”
Shortly after leaving the rabbinic court, the rabbinic court pleader told me that the rabbinic judges were looking for me and had asked her to phone me and to bring me back for a continuation of the examination. According to the rabbinic court pleader, the rabbinic judges wanted to clarify: “At what stage of the immersion for conversion (17 years ago) had the robe clung to Michal’s body and had she felt that it was immodest?” This, according to the rabbinic court pleader, was despite the fact that they didn’t believe that something immodest had occurred. The rabbinic court pleader explained to me that since I had told the rabbinic court that the immersion in the mikveh with a robe in the presence of the rabbinic judges had been very difficult for me and that I had felt immodest at this stage, and, as a result, I didn’t carefully observe the laws of family purity, the rabbis were now trying to clarify if this was a defect in my “acceptance of the commandments” at the time of the conversion. They therefore had to clarify precisely at which stage of the acceptance of the commandments the robe had clung to me. The rabbinic court pleader, who had not managed to reach me on the phone, explained to the rabbinic judges that I had not made any clear decision at this stage of the conversion not to go to the mikveh and not to observe the laws of family purity. As evidence of this she noted that I had indeed immersed before my wedding and that a declaration of this fact appears in one of the transcripts. When the rabbinic judges expressed doubt as to this, the rabbinic court pleader showed them that I had been explicitly asked this question in one of the previous hearings and that I said that I had immersed in the mikveh before my wedding.

Exhaustion and humiliation as a result of the interrogation
The interrogation of the rabbinic court not only exhausted Aviand me, but also demeaned me.
I hereby declare: More than 17 years ago I made a decision that the people of Israel are my people, the Land of Israel is my land, and Judaism is my religion. I studied at length for my conversion, I completely changed my life, I paid a heavy price for this in the severance of relations with my family, I underwent immersion in a mikveh for the purpose of conversion through a recognized and proper rabbinic court in Israel, and I married Aviaccording to Jewish law. We have raised our children as proud Jews and Israelis.
I never imagined that I would be at the point where I would be asked such intimate questions regarding my life while the threat of eradicating my basic identity as a Jew looms in the background.
The tremendous injury is not only to me, a righteous convert [who has converted of her free will and desire], but also to my former husband, his parents and my children. Avi’s mother is a Holocaust survivor and I can’t even describe the distress she feels from all of this. Unfortunately, even though we decided to protect our children and to keep secret the fact that my conversion and their Judaism were being held up to scrutiny and question, it became known to them and now they are also upset, and feel degraded and shamed. We will have to take care of the children with the help of professionals.

What’s Next: From Michal to You
In September 2010, the Tel Aviv Rabbinic Court held that Michal and her children are Jewish. With this declaration, the story may be over for Michal and her children, but the question still remains whether the Rabbinic Courts had any jurisdiction to hear this question in the first instance, and whether Jewish law allows for this type of interrogation at all.

CWJ has petitioned the High Court of Justice to rule on the question of jurisdiction. We call on our religious leaders to take a clear position on the question of whether the converts can be interrogated about their religious observances years after their conversion. It is CWJ's position that this practice is against halakha and should be prohibited.

All told, Michal was interrogated by Israeli Rabbinic Courts five times in the process of having her conversion revoked and then reinstated. The last three interrogations were before the regional rabbinic court that reheard the case as per the request of the High Court of Justice, a panel considered to be “moderate and accommodating,” and under the supervisory eyes of the High Court of Justice that followed Michal's story closely. It was only due to the proactive involvement of CWJ that Michal was able to become a Jew again, her children removed from the rabbinic “blacklist” and allowed to marry Jews in the State of Israel.

Michal’s story highlights the troubling reality of conversion in Israel. Conversion is not currently regulated by law, and current practices are subject to whim and personal politics of rabbinical court judges. The interrogation was allowed to take place because nobody in the State of Israel said otherwise. The dignity and rights of converts are left hanging, not protected by the law or by society.

There is no conversion law in Israel. On July 27, 1997 the Prime Ministers office set up a special committee – the Neeman Commission – to make recommendations about how conversions would take place within the borders of the State of Israel. In 2002, the committee recommended that the Chief Rabbinate take responsibility for setting up Special Conversion Courts to process conversions in the State of Israel. Rabbi Hayim Druckman was appointed to head these conversion courts. The committee expressly stated that the purpose of setting up these Special Conversion Courts was to facilitate conversions and to find a common denominator among the different streams of Judaism that would unite the citizens of Israel on the question "Who is a Jew?", inspire cooperation, and prevent divisiveness. The committee expressly stated that these batei din would not have jurisdiction in the same way that the rabbinic courts had jurisdiction to adjudicate matters in accordance with the Law of Rabbinic Judges – 1955.#_edn8" name="_ednref8" title="">

As the Special Conversion Courts have expanded and grown, the Rabbinic Courts that oversee Jewish marriages and divorces in the state have begun to question the way that the Conversion Courts operate. The more established rabbinic courts of law did not approve of the standards being set by the Special Conversion Courts and began showing an interest in taking control over them. They felt that the Conversion Courts should hold converts to a higher standard. And that is exactly what they decided to do when Michal and Avi appeared before them.

In 2006, the Chief Rabbinate used its broad discretionary powers as the Head of the Jewish Millet (religious community) to issue "Rules Regarding Petitions for Conversion" which included a section (16) that would allow for the revocation of conversions under "special circumstances." These rules were not passed by the Knesset.

CWJ promotes the following policies:

No halakhic basis to repeal conversions. Irrespective of the jurisdictional issues, CWJ is of the opinion that there is no halakhic basis for repealing conversions. (See sources below.)
No jurisdiction to repeal conversions. It is CWJ's contention that Rabbinic Courts have no jurisdiction under Israeli law to question converts about their religious behaviors as part of an uncontested divorce. The High Court's deferral to the Regional Rabbinic Courts to rehear the status of Michal's conversion ironically facilitated the very act that we claim they do not have jurisdiction to undertake, namely, the interrogation of individuals regarding acts of faith subsequent to their conversion. Thus, the High Court, in it’s referral of the case back to the Regional Rabbinic Court has in actuality allowed for the expansion of the Rabbinic Courts' jurisdiction and the creeping annexation of its control over conversions.
No, to government interference with private religious beliefs. By allowing for the interrogation of converts regarding their religious practices, the state is allowing its courts to infringe on and interfere with the private religious practices and beliefs of its citizens. What’s more, the courts are applying insular ideologies as criteria for this interrogation, ideologies which are not necessarily accepted by the majority of the Jewish people
Yes, to privatization.The state must privatize the beit din systemby removing it from the state supported governmental apparatuses. It has become increasingly clear to us at CWJ that religion and the state cannot be intertwined in ways that allow for the gross infringement on the liberties and freedoms of individuals. By interrogating converts as to their religious practices, Courts are infringing on the liberties of convert's beliefs and action, and holding them to criteria that Jews who are not converts would not be held. We postulate that Rabbinic Courts should be conducted as private non-governmental entities to be used voluntarily by those who wish to be under their supervision. State sponsored civil courts must be established which have sole jurisdiction over questions of personal status (marriage and divorce)
Wake-up call.The interrogation of the convert Michal by state-funded judges should signal a wake-up call to the citizens of Israel. Let us not allow interrogation of convert Michal to become the lot of all converts, or all Jews, or all citizens.

Questions for Discussion
Where in this procedure do you think that the judges overstepped their bounds?
What do you think Michal and her children feel towards the State of Israel today?
What would you feel about Judaism if you were in the position of a convert being interrogated?
How do you think the Jewish responsibility to be kind to the convert should be enacted in practice?
Do you think judges should have the right to ask converts about their religious observance?
Do you think religious judges should be allowed to revoke conversions?
What kind of legislation should the State of Israel promote on the issue of conversion?
What apparatus should be in place in Israel to regulate the actions and authority of the rabbinical courts?

Some Rabbinic Sources

(1) Conversion can never be revoked, even among proselytes who are heretics.

“A man who immersed and emerged is an Israelite for all things. What halakhot is this relevant for? If he reverted and betrothed a daughter of Israel, we call him ‘Israel heretic’ and his betrothal is a valid betrothal.” (Babylonian Talmud, Yevamot 47a).

"A proselyte who was not examined [as to his motives] or who was not informed of the mitzvoth and their punishments, and he was circumcised and immersed in the presence of three laymen-is a proselyte. Even if it is known that he converted for some ulterior motive, once he has been circumcised and immersed he has left the status of being a non-Jew and we suspect him until his righteousness is clarified. Even if he recanted and worshipped idols, he is [considered] a Jewish apostate; if he betroths a Jewish woman according to halakha, they are betrothed; and an article he lost must be returned to him as to any other Jew. Having immersed, he is a Jew." (Maimonides, Mishneh Torah, Holiness, Laws of Forbidden Sexual Relations, Chapter 13, Law 17).

(2) Converts should never be asked about their past.

“One does not remind a convert of his past status and actions, and one does not take a convert’s dignity lightly. (Mechilta Mishpatim 18; Baba Metzia 59, 4; Rambam Deot 6;4. Sefer Hahinuch, 431, among others).”

(3) Converts should not be taunted.:

“What is the meaning of the verse, Thou shalt neither wrong a stranger, nor oppress him; for you were strangers in the land of Egypt? It has been taught: R. Nathan said: Do not taunt your neighbor with the blemish you yourself have. And thus the proverb runs: If there is a case of hanging in a man's family record, say not to him, ’Hang this fish up for me.'” (Babylonian Talmud, Baba Metzia 59b)

References and Links
Rabbi Marc D. Angel, “Conversion to Judaism: Halakha, Hashkafa, and Historic Challenge”. Jewish Ideas. Posted January 5, 2009. http://www.jewishideas.org/min-hamuvhar/conversion-judaism-halakha-hash…

Rabbi Marc D. Angel, Choosing to Be Jewish: The Orthodox Road to Conversion, (Ktav Publishing House, Jersey City, 2005).

Conversion to Judaism Resource Center: www.convert.org, www.convertingtojudaism.com.

Charles DeLafuente, “The Call to the Torah, Now Heeded Online,” New York Times, July 1, 2004

“Geirus Policies and Standards that will Govern The Network of Regional Batei Din for Conversion under the auspices of The Rabbinical Council of America and The Beth Din of America and in accordance with the Agreement Arrived at with The Chief Rabbinate of Israel” April 30th 2007 http://www.rabbis.org/documents/Comprehensive%20and%20Final%20Geirus%20…

Simcha Kling, Embracing Judaism, (Rabbinical Assembly, 1999).

Maurice Lamm, Becoming a Jew, (Jonathan David, 1991).

Norman Lamm, “Seventy Faces: Divided we stand, but its time to try an idea that might help us stand taller”, Moment Vol. II, No. 6, June 1986 – Sivan 5746.

Neeman Committee Recommendations (2002). http://www.knesset.gov.il/docs/heb/neeman.htm Walzer, Michael. (1997). On Toleration. New Haven, CT: Yale University Press.

“News: The rabbinical court has the authority to revoke conversions”, Kikar Shabbat. http://www.kikarhashabat.co.il/23631.html 23/12/09.

Lena Romanoff with Lisa Hostein. Your People, My People: Finding Acceptance and Fulfillment as a Jew by Choice (Jewish Publication Society, 1990).

Avi Sagi and Zvi Zohar, Transforming Identity, Continuum Press, (London and New York, 2007). (Original Hebrew, Giyyur ve-Zehut Yehudit, Shalom Hartman Institute and Mosad Bialik, Jerusalem, 1997).

Saul Singer, “Interesting Times: Judaism is not a race”, Jerusalem Post, October 25, 2007.

For more information, or to find out how you can get involved, contact:

The Center for Women’s Justice

43 Emek Refaim St.

Jerusalem 93141

972-2-5664390 (tel.)

972-2-5663317 (fax)

www.cwj.org.il

[email protected]

#_ednref1" name="_edn1" title=""> Names of the parties involved have been disguised to protect their privacy. We chose the initial “X” to represent the convert because it symbolizes the obliteration of her entire identity by the rabbinic court.

#_ednref2" name="_edn2" title="">
#_ednref3" name="_edn3" title=""> Every potential convert is assigned a family with whom they visit on Shabbat and holidays and that helps with the conversion process and teaches them Judaism in practice.

#_ednref4" name="_edn4" title=""> Note that there is no respondent to this motion. It is not an adversarial proceeding in the ordinary sense.

#_ednref5" name="_edn5" title=""> Items 2-7 refer to technicalities in the court proceedings

#_ednref6" name="_edn6" title=""> Items 34-40 refer to technicalities in the proceedings.

#_ednref7" name="_edn7" title=""> Items 43-48 refer to technicalities in the proceedings.

#_ednref8" name="_edn8" title=""> http://www.knesset.gov.il/docs/heb/neeman.htm

December, 2015

To our members and friends, I hope you are well.

It has been gratifying reaching so many people through classes and online offerings through our Institute. We thank all who are supporters and members and who have been participating in the wide variety of learning opportunities as we spread our vision across the country and beyond.

Here are some upcoming highlights for December-January:

Sunday December 6, 10:00-11:00 am: I will give a lecture, “Amos, Prophet of Social Justice,” at Congregation Hochma U'mussar 718 Avenue S, Brooklyn. Free and open to the public.

Shabbat December 18-19: I will be the scholar-in-residence at Congregation Sherith Israel in Nashville, Tennessee (3600 West End Ave). Free and open to the public.

Shabbat January 15-16: I will be the scholar-in-residence at the Kemp Mill Synagogue, Silver Spring, Maryland (11910 Kemp Mill Rd). Free and open to the public.

Saturday night, January 23, 8:30-9:30 pm: The Institute for Jewish Ideas and Ideals and Congregation Kehilath Jeshurun (125 East 85th Street in Manhattan) are co-sponsoring a three-part series, History at Home: Saturday Night Fights: Great Jewish Debates. I will give the second lecture, “Controversies over the Historicity of Biblical Passages in Traditional Commentary.” Free and open to the public.

Year-Long Course: Navigating Through Nach: A Survey of the Prophets Beginning on Wednesday evening, January 27, I will resume our journey through the nineteen books of the Bible from Joshua through Chronicles. The best of traditional and contemporary scholarship will be employed as we study the central themes of each book. The course is taught at a high scholarly level but is accessible to people of all levels of Jewish learning. We have had over sixty people attending in the fall session. In the winter session we will cover the Books of Kings, Isaiah, and Jeremiah. All are welcome to join, and each lecture stands on its own so you can join at any time. If you want to catch up on previous lectures, you can find the fall session classes and source sheets on our website, jewishideas.org, under Online Learning.

Wednesday evenings 7:00-8:00pm Winter session dates: January 27, February 3, 10, 17, 24, March 2, 9, 16 Location: Congregation Kehilath Jeshurun, 125 East 85th Street (between Park and Lexington Avenues in Manhattan).

I also speak at Kehilath Jeshurun (125 East 85th Street) nearly every Shabbat and on holidays at their Sephardic Minyan, and give additional classes at KJ as well. All are welcome to join our vibrant, growing community, as we develop the ideas and ideals of our Institute in a communal framework.

I also am teaching advanced undergraduate Bible courses full-time in the Isaac Breuer College of Yeshiva University. This coming semester we will be learning the Books of Numbers, I Samuel, and Psalms.

My forthcoming book, a commentary on Haggai-Zechariah-Malachi is in the editing process, to be published by Maggid Press in Israel as part of their growing series of commentaries on the Bible.

Finally, please check out our Online Learning section on our website, jewishideas.org, for the latest recordings of my classes. I thank all of our members and friends for their ongoing support and participation as we spread our vision to thousands of people throughout the country and beyond. I look forward to learning together with you and growing the reach of our Institute with your help and involvement.

Have a wonderful Hanukkah,

Rabbi Hayyim Angel, National Scholar

October, 2015

To our members and friends, Shanah tovah, I hope you have been enjoying a meaningful holiday season. As the end of this beautiful season approaches, our Institute educational programming is about to kick off full-throttle.

Here are some of the upcoming learning opportunities. Year-Long Course: Navigating Through Nach: A Survey of the Prophets Although Tanakh lies at the heart of the vision of Judaism and has influenced billions of people worldwide, many often lack access to these eternal works. Beginning on Wednesday evening, October 14, I will begin a two-year journey through the nineteen books of the Bible from Joshua through Chronicles. The best of traditional and contemporary scholarship will be employed as we study the central themes of each book. This year we will survey the books of the prophets (Nevi'im). The course will be taught at a high scholarly level but is accessible to people of all levels of Jewish learning. Co-sponsored by KJ and the Institute for Jewish Ideas and Ideals

Wednesday evenings from 7-8pm Location: Congregation Kehilath Jeshurun, 125 East 85th Street (between Park and Lexington Avenues in Manhattan). Fall session (Joshua, Judges, Samuel): October 14, 21, 28, November 4, 11, 18, December 2, 9. Free and open to the public, please email me at [email protected] if you plan on attending.

On Wednesday, October 14, 1:00-2:00pm, I will give a lecture at the Allegra Franco School of Educational Leadership on the Tower of Babel in classical and contemporary scholarship. Location: Congregation Beth Torah, 1061 Ocean Parkway, Brooklyn. Free and open to the public.

On Shabbat, October 23-24, I will be the scholar-in-residence at Congregation Anshei Sfard Beth El Emeth, 120 East Yates Road North, Memphis, Tennessee. All are welcome.

On Sunday, November 8, 10:30am, the Institute for Jewish Ideas and Ideals and Congregation Kehilath Jeshurun are co-sponsoring a book reception for Naomi Ragen’s latest book, The Devil in Jerusalem: A Novel. Free and open to the public, books will be available for purchase.

On Shabbat, November 13-14: I will be the scholar-in-residence at Young Israel of Hollywood-Ft. Lauderdale, 3291 Stirling Road, Ft. Lauderdale, Florida. All are welcome. The Institute for Jewish Ideas and Ideals and Congregation Kehilath Jeshurun are co-sponsoring a three-part series, History at Home: Saturday Night Fights: Great Jewish Debates. I will give the first lecture on Saturday night, November 21, at 8:30 pm: “Dogma, Heresy, and Classical Debates: How We May Create Jewish Unity in an Age of Confusion.”

I speak at Kehilath Jeshurun (125 East 85th Street) nearly every Shabbat and on holidays at their Sephardic Minyan, and give additional classes at KJ as well. All are welcome to join our vibrant, growing community, as we develop the ideas and ideals of our Institute in a communal framework.

As part of my ongoing teachers’ training programs, I will be teaching a three-part series on “How to Teach Tanakh in Synagogues” for the Graduate Program of Advanced Talmudic Studies (GPATS) at Stern College for Women of Yeshiva University. These classes, to be held October 28, November 4, and November 11, are open only to the participants in their program.

I also am teaching advanced undergraduate Bible courses full-time in the Isaac Breuer College of Yeshiva University. This semester we are learning the Books of Exodus, Judges, and Isaiah. My forthcoming book, a commentary on Haggai-Zechariah-Malachi is in the editing process, to be published by Maggid Press in Israel as part of their growing series of commentaries on the Bible.

Finally, please check out our Online Learning section on our website, jewishideas.org, for the latest recordings of my classes online. I thank all of our members and friends for their ongoing support and participation as we spread our vision to thousands of people throughout the country and beyond. I look forward to learning together with you and growing the reach of our Institute with your help and involvement.

Shanah Tovah, Rabbi Hayyim Angel National Scholar

September, 2015

To our members and friends, I hope you are all well.

As the New Year approaches, we have a robust new season of Institute programs in store. This report will give an overview, and upcoming reports will announce more specifics as the dates get closer.

A major exciting development over this past summer is that we have created a partnership with Congregation Kehilath Jeshurun on the East of Side of Manhattan (125 East 85th Street) in my role as their Rabbinic Scholar. Through this shared vision and relationship, we have created a New York home for our Institute’s programming. Last year we held two symposia at Kehilath Jeshurun, and this year we already have several special programs and a lecture series lined up, with more to follow.

In conjunction with the Institute, I will be giving a weekly survey of the Bible at KJ on Wednesday evenings (7:00-8:00 pm) beginning after the holidays on October 14 (subsequent announcements will contain all the dates). Free and open to the public. This course, as with all my work in Bible, integrates the best of traditional and contemporary scholarship.

My father and I will also co-teach a three-part series, History at Home: Saturday Night Fights: Great Jewish Debates (each lecture begins at 8:30 pm at Kehilath Jeshurun): November 21: Dogma, Heresy, and Classical Debates: How We May Create Jewish Unity in an Age of Confusion - Rabbi Hayyim Angel January 23: Controversies over the Historicity of Biblical Passages in Traditional Commentary - Rabbi Hayyim Angel March 5: Rambam vs. Spinoza: Approaches to Religion and Reason - Rabbi Marc Angel

I also speak at Kehilath Jeshurun nearly every Shabbat and on holidays at their Sephardic Minyan (and give additional classes at KJ as well). All are welcome to join our vibrant, growing community, as we develop the ideas and ideals of our Institute in a communal framework.

In the area of teacher training, I taught a course in teaching Bible in synagogues to Honors Rabbinical Students at Yeshiva University last spring. I will be giving a similar course to the Graduate Program for Women in Advanced Talmudic Study at Stern College for Women of Yeshiva University this coming fall.

Thus far I have three scholar-in-residence weekends on the calendar, with several others in discussion: October 23-24: Anshei Sfard Beth El Emeth (Memphis, Tennessee) November 13-14: Young Israel of Hollywood-Fort Lauderdale, Florida January 15-16: The Kemp Mill Synagogue (Silver Spring, Maryland)

It is a singular privilege to help develop and promote the ideas of our Institute and teach thousands of people annually. It likewise has been an important development to include teacher training and symposia where we connect with other rabbis, educators, and scholars to promote our vision more robustly. By doing so we have increasingly become the address for discussing the major issues confronting the Jewish community from a traditionally faithful perspective.

We also celebrate the legitimate diversity of opinion within our classical sources as we engage our community in religious conversations. I thank all of our members and supporters for making this vision a growing reality.

Shanah tovah, Rabbi Hayyim Angel National Scholar, [email protected]

The purpose of this essay is twofold. First, it will highlight an example of a lenient halakhic practice in America that had gained widespread acceptance among the Orthodox Jewish community throughout the first half of 20th century, and the subsequent opposition to this practice by leading Orthodox authorities in the 1950s who successfully challenged its legality, to the point where today it is generally considered beyond the bounds of accepted halakha. Second, it will focus on a critical juncture in American Orthodox Jewish history when a noticeable shift occurred in the paradigm of halakhic authority, from initially residing primarily within the domain of the community rabbi into the hands of the country’s leading gedolei hador and rashei yeshiva. The effects of this shift have laid the groundwork for a current trend in America that increasingly favors the authority of gedolim and rashei yeshiva over the local Orthodox rabbi.

A backdrop to our analysis is an examination of the circumstances surrounding the controversy that erupted over the kashrut of the Seattle mikveh in the 1950s. This little known story, long ago forgotten by but a very few, represents a vivid moment in the history of the American Jewish experience when the forces of these two aforementioned sources of authority collided with one another. The in-depth, technical halakhic questions involved in using municipal city water to fill a mikveh are beyond the scope of this essay.
The article will provide a historical overview, as well as a general summary of the relevant halakhic issues.

Historical Background

In the late 1800s and early 1900s, a massive wave of migration brought hundreds of thousands of European Jewish immigrants and refugees to American shores. These new arrivals quickly spread out to localities throughout the continent and established Jewish communities in American and Canadian cities that hitherto had no sizeable Jewish presence. In 1877, a survey published in the Jewish Encyclopedia identified 24 American cities with Jewish populations of 1,000 or more. By 1905, that number grew to 70. In 1918, the Bureau of Jewish Statistics and Research revealed that this number had skyrocketed to include 161 cities. With the creation of these new centers of Jewish life came the need to establish cultural and religious communal service institutions, among which included the building of mikva’ot, or ritual baths . The burden of navigating the complex halakhic factors that determined the validity of these newly built mikva’ot rested upon the pioneering rabbis of these communities.

Among the issues that were often debated was the question of whether or not a mikveh could be filled with water from a municipal water system. Using tap water, if deemed permissible, would be the easiest and most cost effective method to fill a mikveh. Chief among the concerns regarding the use of city water is the requirement that mikveh water cannot be she’uvin, or contained in a vessel, and that it’s conveyance cannot be carried out via tefisat yad adam, or direct human involvement.

While the original source of a municipal water system, be it a river, natural spring or a reservoir, may not pose a problem in and of itself, it is the conveyance through the various receptacles contained in the system that creates the challenges for its use in filling a mikveh. Specifically, the various pipes, pumps, holding tanks, and meters of a water system all pose concerns that may potentially invalidate a mikveh. We should note that many of today’s widely accepted mikva’ot do contain she’uvin water that is validated either through the method of hashakah (connection), where a rain water pool is connected through a hole in a wall with an adjacent she’uvin pool, or through a process called hamshacha (allowing the she’uvin water to flow along the ground). However, these two methods are only effective provided that she’uvin water did not comprise the majority of the total water in a mikveh at the time the mikveh is initially filled. But the question addressed in these early years was whether or not municipal city water was considered she’uvin to begin with, such that the aforementioned hashaka/ hamshacha methods were rendered unnecessary.

In the late 19th century, Rabbi Yehiel Michel Epstein (1829-1908), author of Arukh Hashulhan, declared unequivocally that water supplied from a system of pipes that channel water from a river to houses throughout a city can be used for a mikveh, provided that either the tube that feeds into the mikveh is affixed to the ground, or that the final three handbredths of that tube where it pours into the cistern is made out of a material that is not succeptible to tumah, such as wood. In 1912, the first comprehensive treatment of the subject as it applied to a 20th century municipal water system was written by Rabbi Israel Hayim Daiches, of Leeds, UK. His book Mikveh Yisrael - An Halachic Discourse regarding the Fitness for Use of Ritual Baths Supplied by Modern Water-Works , contains a 31 page analysis explaining why a mikveh can be filled exclusively with water from the tap.

In America, the practice of using municipal city water to fill a mikveh evidently became very pervasive. Thus, for example, in 1957, Rabbi Isaac Esrig (Etrog) wrote that the majority of mikva’ot in the US were filled in this manner, where the rabbis who supervised the construction of such mikva’ot relied on legitimate opinions that allowed it. Indeed, early American halakhists had written about the prevalence and permissibility of this practice. Among these included some leading American rabbis of the early 20th Century: Rabbi Zvi Hirsch Grodzinski of Omaha, NE, Rabbi David Miller of Oakland, CA, and Rabbi Yehuda Yudel Rosenberg, of Montreal .

Early Seattle Mikveh

Soon after his appointment in 1905 as rabbi of Congregation Bikur Cholim, Seattle’s first orthodox synagogue, Rabbi Gedalyah Halpern oversaw the construction of the community’s mikveh and permitted the use of municipal city water to fill its cistern. In 1909, a prominent rabbi from St. Louis, R’ Zecharia Yosef Rosenfeld, took issue with the permissibility of using city water for a mikveh and sent a letter to R’ Halpern stating that, in his opinion, it was disqualified. Instead, he suggested that R’ Halpern utilize a method proposed by Rabbi David Friedman of Karlin (1828-1917) of transporting snow into the cistern and allowing it to melt into water . R’ Halpern sent back a rebuttal to R’ Rosenfeld defending his ruling and stating that, in any case, the relative lack of snow in Seattle precluded his ability to use Rabbi Friedman’s method even if he had wished to do so. Thereupon R’ Halpern asked Rabbi Hayim Jacob Widrewitz of New York for his opinion. Rabbi Widrewitz had served as rabbi in Moscow before immigrating to America in 1892, where he was unofficially deemed “Chief Rabbi of America”, and was considered among the more prominent halakhic authorities in America at that time. His expertise in the laws of mikva’ot was evident in that he oversaw the reconstruction of the mikveh in the Russian village of Lubavitch in 1883-1884. He wrote back a letter supporting R’ Halpern’s opinion, as did another eminent posek from New York, Rabbi Aaron Gordon. The entire exchange of letters was reprinted later in R’ Halpern’s Sefer Mei Gava.

Rabbi Nissan Telushkin and Sefer Taharat Hamayim

Of all available sources that discuss the matter, perhaps no other authority before or since more thoroughly analyzed the issue of utilizing city water for a mikveh, both from a halakhic and a technical perspective, than Rabbi Nissan Telushkin of East New York (1881-1970). His book on the laws of mikva’ot, Sefer Taharat Hamayim, demonstrated his proficiency of these laws, and it seems that the great Torah giants of his generation, including Rabbi Moshe Feinstein, consulted him when the kashrut of mikva’ot were called into question. His writeup on the subject first appeared as an article in the January 1937 issue of the Torah journal Hamsiloh (Hamesilah), of which he was the editor. Using the New York City water system as a basis for his analysis, he consulted with hydraulic engineers from the NYC Dept. of Water Supply to gain a good understanding of the mechanics involved in the transportation of water through the system and the potential halakhic problems they might pose in the construction of a mikveh.

In his treatment, Rabbi Telushkin first described in detail the workings of the NYC water supply system. He then identified four potential areas of concern with the use of city water:

1) The pipes: The concerns with the pipes are broken down into four subdivisions: a) the water might be conveyed through material that is succeptable to tum’ah, b) the pipes might be curved in certain locations, rendering them into a bet kibbul (receptacle), c) the valves affixed to the pipes might render the pipes into a keli (vessel) and thus succeptible to tum’ah, d) since the valves are made to be opened and closed, there might be a problem of tefisat yad adam, namely that the conveyance of the water is carried out through human intervention.

2) The pumps: Two different types of pumps exist in the NYC water system: a) centrifugal, b) suction lift. The concern with both is the human intervention involved.

3) Underground pressurized holding tanks: Rabbi Telushkin identified three such tanks in the NYC water system, that served the neighborhoods of Forest Hills, Riverdale and the Highland Park section of East New York. He conceded that mikva’ot should not be filled with water fed from such tanks and even listed the streets that marked the borders between where city water was fed from these tanks and those from water from upstate reservoirs.

4) Water meters used to measure water flow and the potential that they may be considered kelim (vessels) that are succeptable to tu’mah.

Using a vast array of halakhic sources, Rabbi Telushkin systematically explained why none of these potential concerns, with the exception of the underground tanks, pose a problem when filling a mikveh. He concluded that, in practice, a mikveh can be constructed in such a manner; but he included some caveats and recommendations for those who wished to do so.

We thus far have pointed to the writings and approbations (see accompanying endnotes to the above sources) of at least a dozen of the most highly regarded halakhic authorities in America prior to WWII, who all signed on to the permissibility of using tap water for a mikveh. In addition, we have seen evidence that indeed most mikva’ot in America were originally constructed in this manner. But all that was about to change with the arrival of a new wave of Torah scholars to America, after World War II. Among these latter immigrants, no person was more responsible for abolishing the utilization of city water to fill a mikveh than Rabbi Chanania Yomtov Lipa Deutsch.

The Helmetzer Rebbe

Rabbi C.Y.L. Deutsch, commonly known as the Helmetzer Rebbe, was affiliated with the Satmar Hassidic sect and had been serving as rabbi of Helmetz, Hungary in the years following WWII. An erudite scholar, he had a particular expertise in the laws of mikva’ot. Upon arriving in the US in 1949, he established a congregation and bet midrash in Cleveland, OH and shortly thereafter went on a veritable campaign by touring Jewish communities around the country and identifying community mikva’ot that he deemed were not in accordance with halakha.

He sought to convince those communities to make improvements that would bring their mikva’ot in line with higher standards of kashrut. By 1954, he had repaired or helped build more than 40 mikva’ot. By 1956 it was reported that he had helped repair or construct 59 mikva’ot. By the end of his life in 1990, that number grew to nearly 200 mikva’ot throughout Europe, North and South America, Australia, and South Africa.

One of the issues he railed against was the practice of using municipal city water to fill mikva’ot. Eventually he went on to write his 20 volume magnum opus called Taharat Yom Tov. In volumes 6 and 7 of this work, which he published in 1954 and 1955, respectively, he devoted many pages to argue for the disqualification of city water mikva’ot and compiled a robust list of letters from leading Torah sages who agreed with him. This list included letters from the Satmar Rebbe - R’ Yoel Teitlebaum, Rabbi Eliezer Silver, president of the Agudat Harabonim, Rabbi Eliyahu Meir Bloch, rosh yeshiva of Telshe Yeshiva in Cleveland, as well as a half dozen others.

Any mikveh that was deemed to require reconstruction, and in many cases outright replacement, undoubtedly created financial burdens on the Jewish community in which the mikveh was located, where its members would then have to find a way to raise money for these improvements. Nevertheless, in most instances, the rabbinate of the cities in which R’ Deutsch identified mikva’ot that he considered problematic embraced this challenge and were willing to make the necessary repairs to deem them worthy of his approval. The reasoning for this attitude, in my opinion, was twofold. Either the rabbinate of a particular community lacked the knowledge, wherewithal or will to openly oppose an expert in the laws of mikva’ot such as R’ Deutsch, or they sincerely believed that in any area of kashrut affecting the entire community, one must strive for the strictest position. Since these community services are designed to cater to members that include an array of levels of observance, one must strive to accommodate even the most stringent opinions. With the exception of the handful of cities with large Jewish populations, the community mikveh was the only one available (often for hundreds of miles around), and thus represented the sole option for the residents of a given town. Over the span of his career, R’ Deutsch travelled to hundreds of Jewish communities to inspect and recommend upgrades to their mikva’ot.

Rabbi Baruch Shapiro and the Seattle Mikveh

As previously mentioned, Seattle had been one of those cities where the rabbinate, headed by Rabbi Baruch Shapiro , permitted city water for their mikveh. The community mikveh at the time was located in a private house on East 18th Avenue between Alder and Spruce Streets. In early 1957, R’ Deutsch was invited by individuals in the Seattle community to inspect their mikveh. When R’ Deutsch discovered that it was filled with tap water, he promptly appealed to R’ Shapiro to fix the mikveh. However, in spite of this, R’ Shapiro refused to accede to any changes to the mikveh. For his part, R’ Deutsch produced a collection of approbations from leading halakhic authorities of the time who stated their objections to city water mikva’ot including those of the Satmar Rebbe, and Rabbi Eliezer Silver. But Rabbi Shapiro still refused.

At this point, Rabbi Deutsch turned to his colleague and friend, Rabbi Meir Amsel of Brooklyn, editor and publisher of the widely read monthly Torah journal Hama’or. Early on, Rabbi Amsel was an ardent supporter of the Helmetzer Rebbe and he frequently included some details of the Helmezer’s travels and efforts in fixing mikva’ot in the pages of his journal. Perhaps a threat to publicize the matter might persuade Rabbi Shapiro to give in. Rabbi Amsel enthusiastically obliged and placed the issue as the lead item in the June 1957 edition of Hama’or. Without revealing any names or localities, Rabbi Amsel penned an article entitled, “Regarding the Disqualification of Mikva’ot Constructed with Water Pipes (Wasserleitung)”. The article begins:

In recent times, Orthodox Jews here began to devote themselves to building ritual baths throughout the United States, and here and there they settled and established mikva’ot that were majestic and beautiful. One cannot deny that there were times when circumstances required that they could not build mikva’ot based upon accepted halakha and traditions. And so they built what they could, in many instances, according to novel leniencies of rabbis who were not experts in these matters. In particular, a great misfortune has occurred in that many congregations were lenient in building their mikva’ot using municipal water pipes…

Let us pay tribute to Rabbi Chanania Yomtov Lipa Deutsch, the Helmetzer Rebbe of Cleveland, who has devoted his time and his life to this important cause, with the support of the great Torah sages here. He is one of a kind throughout the US, and he has no peer in his holy work of fixing and building mikva’ot throughout America and Canada, even in the very remote [communities]. He has already compiled a list of almost sixty mikva’ot that were built or fixed as a result of his efforts. In particular, the aforementioned rabbi concentrated his efforts on fixing mikva’ot from water pipes, a fundamental disqualification. He has already collected responsa from our greatest sages who have unanimously offered the opinion that these types of mikva’ot are disqualified and that it is forbidden to immerse in them…

Then, in a veiled reference to Rabbi Shapiro, he writes:

To our great chagrin there still exist some rabbis who are stubborn, whose nature prevents them from admitting the clear truth of the matter. They care not about peace and truth – to fix their flawed mikva’ot, despite the fact that the great Rabbi Aaron Kotler has already proved in his letter that we published in Hama’or that the prohibition of slander does not apply in these types of efforts to rectify. And all those who quickly do so have removed from themselves the great liability of causing the public to sin…

Rabbi Amsel proceeded to republish the letters of contemporary Torah sages that originally appeared in R’ Deutsch’s Taharat Yom Tov, who all ruled against the use of municipal water for a mikveh. At the end of the article he writes:

We are confident that those who read these fiery words... of our contemporary sages, will be moved to abandon their stubbornness and work immediately toward fixing their mikva’ot according to the law...

But far from capitulating, Rabbi Shapiro remained adamant. On August 8, 1957, he sent a letter to Rabbi Amsel explaining why he was well within halakha to maintain his mikveh as-is without any modifications.

In the October 1957 edition of Hama’or, Rabbi Amsel ran an angry article under the heading, “An Open Letter Initially Intended to be Confidential – Regarding the Disqualified Mikveh in Seattle”, which was filled with heated words and sarcastic insults toward his opponent. In submitting his letter to Hama’or, Rabbi Shapiro had hoped that he would have been given the fair opportunity to have his message published in full. Instead, Rabbi Amsel published only a small excerpt, and attached a long tirade offering his own version of facts. Rabbi Amsel writes:

In recent years, many God-fearing yeshiva students have joined the community in Seattle and are sickened on account of their disqualified mikveh. So they arranged to bring out Rabbi C.Y.T.L. Deutsch, the Helmetzer Rebbe of Cleveland, about whom all the great rabbis and hassidic leaders agree is currently the foremost expert in building mikva’ot and in family purity laws. In particular, Rabbi G[ersion] Appel expressed his desire to fix the mikveh, since it is located in his synagogue, and he wished to see the mikveh brought in line with all the halakhic improvements and stringencies. However, the grand rabbi there, who is the elder sage of his group, made up his mind to not allow any improvements to the mikveh, since in his mind there is no one more scholarly and God-fearing than he, and what was done has been done, and no one has the right to question his character and decisions. Based on what we have been told, Rabbi Appel turned to the president of the Agudath Harabbanim, the famed Rabbi Eliezer Silver, and asked him whether the mikveh should be fixed. Rabbi Silver adamantly and emphatically ordered that the mikveh be fixed immediately. However, out fear of Rabbi Shapiro, nothing has been done till now.

Rabbi Amsel then published in full his reply to Rabbi Shapiro’s letter, from which we get a glimpse of the outline of the arguments Rabbi Shapiro set forth as follows:

1) There are many great authorities who allow a mikveh to be built in such a fashion, and as such the leniency has solid grounding in halakha.
2) There are other stringencies held by authorities to which few if any mikva’ot currently conform. If we were to account for all these stringencies, then one would be forced to disqualify most mikva’ot.
3) Over the years, there have been hundreds of thousands of God-fearing Jews who have used these types of mikva’ot, so to claim that they are disqualified constitutes slander against these people.
4) Likewise, many rabbis approved of these mikva’ot, and so to claim that they are disqualified constitutes slander against them.
5) Using the more lenient standards for building a mikveh will lead to a greater level of observance of family purity laws.

Rabbi Amsel’s letter, dated August 19, 1957, included a point-by-point rebuttal to Rabbi Shapiro’s letter, and the article ended by reiterating that the matter would never have entered the public arena were it not for the fact that Rabbi Shapiro had forced his hand, and that he still expressed hope that Rabbi Shapiro would change his mind.

In the following issue of Hama’or , an irate Rabbi Gersion Appel, rabbi of Bikur Cholim, the congregation under whose auspices the care and upkeep of the mikveh fell, submitted a letter, dated Dec. 3, 1957 to clear up some misinformation presented in the previous issue. First, he wanted to make clear that he was not the one who invited the Helmetzer Rebbe to inspect the Seattle mikveh. Also, the mikveh was not located in R. Appel’s synagogue, as misstated by R’ Amsel. Though he did agree that making improvements to the mikveh might be a good thing, the Seattle rabbinate had a competent leader in Rabbi Shapiro who gave his stamp of approval upon the mikveh for more than 30 years, and there was no justification to saying that it is disqualified. Moreover, many of Europe’s great rashei yeshiva passed through Seattle by way of the Far East during and after WWII, often staying over for weeks at a time, and none of them said anything against the mikveh. Rabbi Appel bemoaned the fact that R’ Amsel had decided to go public with the matter, and that any such improvements to the mikveh that are warranted should have been handled outside of the public arena. He ended by pointing out the damage that R’ Amsel had caused to the overall reputation of the Seattle Jewish community, and hoped that R’ Amsel might clarify the matter for his readership.

In response, Rabbi Amsel claimed that it was not he but Rabbi Shapiro who had first attempted to go public with the issue by forwarding his letter to other Jewish publications (all of which refused to print his letter). Furthermore, he never intended to sully the reputation of an entire community, but was rather motivated by a sincere attempt to correct what in his mind was halakhically wrong. He did not understand why Rabbi Shapiro, though well intentioned, remained so stubborn and defiant, in light of all the great authorities who came out against him and he closed by expressing hope that R’ Shapiro might yet change his mind.

The February 1958 edition of Hama’or included a letter from Rabbi Shapiro, which this time Rabbi Amsel decided to publish in full. Rabbi Shapiro reiterated some of the arguments he presented in his first letter, and provided a brief history of the mikveh situation in Seattle. He had arrived in the city after Rabbi Halpern had already built the community mikveh using city water with the blessings of Rabbis Widrewitz and Gordon. Years later, when the mikveh was in need of repair, he spent much time delving into the laws of mikva’ot together with the members of his chevre shas study group, and they all concluded unanimously that, given the specific situation in Seattle, it was permitted to use tap water. They had in fact considered building a rain water mikveh, but discovered that the rain water in Seattle when collected emitted a foul odor, and it would be objectionable to the women to immerse themselves in such water.

Rabbi Shapiro then made a point that, in my opinion, defined the basis of his general outlook toward deciding halakha, and was the central doctrine that set him apart from his opponents:

I have delved into the depths - the depths of halakha. I have weighed it with scales , and I have agreed with the words of those who permit it. Indeed, those who forbid it are shield-bearers (i.e. great debaters) and certainly God-fearing. However those who permit it are ones about whom it is said, “Great is one who benefits from his toil” (Berakhot 8a) - this is one who toils and dwells in the depths of halakha, and emerges that the thing is permitted, and partakes of it. He is “greater than one who fears Heaven” - this is one who is afraid that perhaps there is a possibility that it is prohibited, and refrains from partaking of it. “Who is a wise scholar? He who sees something that is seemingly not kosher, something that others would deem as not kosher. But because of his deep analysis, he concludes that it is kosher. This is a wise scholar.” Come and see how great is “ko’ah de’hetera” (the power of leniency). The Maharsha (Rabbi Samuel Eidels, 1555-1631) on Hulin 44b interprets the following pasuk in this manner: “Fortunate are those who fear God” - this applies to one who is presented with something of questionable kosher status, and is stringent. However, “For you shall eat the toil of your hands” - this applies (only) to one who exerts himself and emerges with the conclusion that it is permitted. This is a person who merits two worlds.

Then, after having taken offense by what he perceived to be Rabbi Amsel’s lack of respect for him and a complete unawareness of who he was, Rabbi Shapiro sheepishly provided excerpts of congratulatory letters from leading rabbis around the country who had heaped praise upon him, after he had been appointed rabbi of the Herzl Congregation in 1923. These included letters from Rabbi Elchanan Zvi Guterman, Chief Rabbi of Scranton, PA , Rabbi Yehuda Leib Levin of Detroit, MI , Rabbi Dr. Bernard Revel, and Rabbi Eliezer Silver, president of the Agudat Harabonim .

Rabbi Amsel responded by stating that he held nothing but high regard for Rabbi Shapiro, which made it all the more troubling why he remained obstinate. The bottom line was that the overwhelming weight of opinions on the matter disqualified city water for mikva’ot. He then offered a point by point refutation of the arguments presented by Rabbi Shapiro.

After the exchange, Rabbi Shapiro, exasperated and bitter over the negative publicity directed against him, finally acceded to renovating the mikveh. In a letter to the Helmetzer Rebbe signed by “The Avrechim (yeshiva students) of Seattle and environs”, dated March 18, it was announced that the Seattle rabbinate agreed to upgrade the mikveh according to the specifications laid out by him. A wealthy patron of the community had stepped up and offered to cover the requisite expense and two recent yeshiva graduates who were in the construction business accepted the task of making the necessary renovations. Then in 1963, a new rain water mikveh was built next to the Bikur Cholim synagogue and the Helmetzer made a follow-up trip to Seattle to inspect and give his stamp of approval for it. However, the community’s use of this new mikveh was short lived, since by 1970, Bikur Cholim was the last remaining Orthodox synagogue to migrate away from the Seattle’s Central District to the Seward Park neighborhood, where the current mikveh continues to serve the needs of its community.

Discussion

The Seattle mikveh controversy was a symptom of the changing times of the American rabbinate in the mid-20th century. It was around this time that dozens of Jewish communities abandoned their use of city water for their mikva’ot. However, it was in Seattle where two forces, the waning authority of the local rabbi and the emerging authority of the nation’s gedolim, came to a head.

From the inception of an organized Orthodox union in the US, it was generally accepted that the autonomous authority of the congregational rabbi would be respected. When the convention of the very first Union of Orthodox Jewish Congregations in the US was held on June 8, 1898, with Rev. Dr. H. Pereira Mendes—spiritual leader of the Spanish and Porguese Synagogue of New York City-- as president, among the principles adopted by its members was “to strengthen congregational life, but not to interfere in congregational autonomy” (emphasis added).

In the beginning of the 20th century, the model for most of the rabbis that served these early American Orthodox communities was that of a learned man in all areas of halakha, a jack of all trades who set kashrut standards, wrote gittin, was the town mohel, built mikva’ot, etc. He was more than likely European-born and European-trained. Moreover, the hierarchical structure for halakhic authority in the US was very loose or non-existent in those early years. Universally or even widely recognized final arbiters in halakha (leaders of the stature of a Rabbi Moshe Feinstein, for example) were not found on the American Orthodox scene. The rashei yeshiva and mentors of these early rabbis often resided thousands of miles away in Europe and were thus not always easily accessible to field questions of their former students. In times when they were able to do so, they were not always tuned in to the specific circumstances of the case at hand, nor of the state of affairs of the community in question, factors that might possibly affect the outcome of a decision. As a result, the final halakhic authority, whether by right or by default, rested upon the local rabbi.

Over the years, as more and more home-grown American students assumed positions in the rabbinate, these rabbis tended to compartmentalize their talents. Rabbis who were equipped to evaluate all areas of halakha became less and less common. For the more complicated halakhic matters that were beyond the scope of their expertise, they deferred their halakhic decisions to their rashei yeshivot and highly acclaimed gedolei Yisrael, who resided outside of their community. Modes of communication were improved and the length of time in which rabbinic authorities could consult with one another was vastly shortened. Thus, this new group of Torah leaders slowly began to supplant the local rabbi as the final authority in halakha. This more centralized model of authority provided an advantage as well as a disadvantage in evaluating questions posed in local communities. On the one hand the gadol might bring to the fore a higher level of erudition and analysis to the specific matter at hand. But on the other hand, only the local rabbi was privy to all the minutiae and subtle particulars of the case and was personally acquainted with the parties affected by the outcome of the decision. Therefore no one was more uniquely suited than he to decide the matter, from his vantage point.

In my opinion, this last point is one that should have played a major role in determining the validity of the Seattle mikveh. The outcome of the issue was very dependent on a detailed understanding of the specific water system in question. Were there any pumps or holding tanks that might pose a problem? Did the conveyance of water in the system involve direct human intervention? It is clear from the available literature that those authorities who came out against the Seattle mikveh (and all other such mikva’ot) in the 1950s did so, not because they paid close attention to the specifics of its municipal water system, but because they wished to unilaterally do away with the practice for all communities in all situations. Though it is now very difficult to turn back the clock and analyze the specific features of the Seattle water system as it existed in the 1950s, we do know that it was a) a gravity based system that b) was fed, at least from the watershed to the reservoirs, by a series of woodstave pipes, both factors that would mitigate some of the concerns raised about a city water system.

Furthermore, Rabbi Shapiro was a leader who by no means favored a liberal attitude toward observance of Jewish law. To the contrary, he belonged to the traditional camp of Orthodox Jewry and was a champion of strict adherence to halakha. In 1929, when his synagogue voted to remove its mechitza, he promptly resigned and formed a new congregation that was called “Machzikay Hadath” (Upholders of the Faith) with the members who remained loyal to him. Nevertheless, his guiding principle in rendering halakhic decisions was “ko’ah de’hetera” – a penchant toward leniency that was grounded upon a solid footing in traditional halakhic sources.

In the end, the opponents of city water mikva’ot have succeeded in completely doing away with a practice that, was once ubiquitous upon the American landscape.

I had the honor of spending the weekend of March 16-18, 2012 with the community of Amsterdam’s famous Portuguese Synagogue, Talmud Torah. I was invited to install their new Haham, Dayyan Pinchas Toledano. The Portuguese Synagogue in Amsterdam is the “mother” Congregation of my own Congregation Shearith Israel, the Spanish and Portuguese Synagogue of New York City, founded in 1654. Our two Congregations share over 350 years of historical association and both maintain the Western Sephardic minhag. The installation of Haham Toledano underscored the historic connection of our Congregations, as well as the long-standing personal respect and friendship which Haham Toledano and I have shared over the years.

The Portuguese Synagogue of Amsterdam, dedicated in 1675, is one of the glories of the Jewish people. It is a grand building, remarkably beautiful and impressive. It has seating for nearly 3000 people. In recent years, it has been restored to its pristine beauty.

When one enters the Portuguese Synagogue of Amsterdam, one enters Jewish history. The Sephardic community of Amsterdam was established by ex-conversos who fled the fires and persecutions of the Spanish and Portuguese Inquisitions in order to return to Judaism. When they built the Esnoga, they were making a statement: we have survived the flames of the Inquisition, we are thriving, we are committed to the future of Judaism, our grand synagogue building is a testimony to our strength and our love of Torah, we have overcome adversity and we look to the future with optimism and confidence.

The Sephardic community of Amsterdam boasted world-class Hahamim, thinkers, writers, poets. It produced notable traders and merchant princes; during the 17th century, its adventurous members travelled to the New World to establish communities in South America, the Caribbean, and in North America. Over the years, the Portuguese Synagogue of Amsterdam continued to house a vital, dynamic and creative Jewish community.

During the early1940s, the Jews of the Netherlands became victims of the Nazi onslaught. Jews were rounded up, deported to concentration camps, and murdered in large numbers. I was told that 90% of the members of the Portuguese Synagogue were murdered during the Holocaust. This proud and mighty community—born in the flames of the Inquisition—was disastrously stricken.

But a remnant survived. With pride and tenacity, the community has worked to restore its magnificent synagogue building; to revitalize its spiritual life; to revive the spirit of courage and faith that has characterized the community for the past four centuries. It has appointed an illustrious Haham, Dayyan Toledano, to provide religious guidance and inspiration. Its lay leadership is dedicated, hard-working, tenacious, and hospitable.

When I prayed in the Esnoga, I felt that I heard the voices of the ghosts of past generations—all those good, pious souls who sacrificed so much for Judaism, who worked so hard for the Jewish community and the Jewish People. It was a haunting, ineffably moving experience for me.

When I left Amsterdam to return to New York, my thoughts lingered on the glories and tragedies of the Portuguese Synagogue. I felt a surge of spiritual uplift from the beautiful Shabbat I had spent in the Esnoga, and the magnificent ceremony of installation of Haham Toledano on Sunday, attended by four hundred of the city’s Jewish community. I felt hope and optimism that the community will gain strength and spiritual vitality in the months and years ahead, and restore glory to Kahal Kadosh Talmud Torah.

Od Avinu Hai. Am Yisrael Hai.

I.

The topic of kol ishah, the halakhic prohibition on men from listening to a woman's singing voice, is obviously a matter of concern for religiously observant Jews. Yet, there are various interpretations as to what exactly constitutes the prohibition. The present essay aims to clarify the prohibition, demonstrating that it is far less restrictive than is commonly believed.

Rabbi Eliezer Waldenberg ruled that it is permissible for a man to hear a recording of a female singer when the singer is not visible to the listener. Rabbi Yosef Eliyahu Henkin held similarly. Rabbis J. David Bleich and Haim David Halevi indicated that the use of electronics for the audio alone does not mitigate the prohibition; the listener must not be able to see the singer at all. Rabbi Ovadia Yosef and Rabbi Haim David Halevi both ruled that electronic recordings mitigate the prohibition only if the listener has never once glimpsed the woman singer, and Rabbi Yosef applied this even after the woman singer is deceased. Going still further, Rabbi Yaakov Breish, Rabbi Shmuel Wosner, and Rabbi Binyamin Silber all ruled that even audio-only electronic recordings of women may not be listened to, with no mitigations or leniencies whatsoever. According to them, listening to a woman sing is simply prohibited. Rabbi Menashe Klein disagreed with Rabbis Breish, Wosner, and Silber, and argued that electronic records are not the woman's "real" voice, and that listening to recordings ought to be permitted. Even he, however, stated that it is "distasteful" to rely in practice on the leniency."[1]

All these recent authorities took it for granted that listening to women sing is categorically forbidden for men, and that only select and specific factors may mitigate this otherwise absolute prohibition. It is understandable, then, that so many Orthodox laymen assume that men listening to women sing is categorically forbidden. It is taken as almost axiomatic that kol ishah is strictly and absolutely forbidden; few if any compromises are brooked, and leniencies are offered reluctantly if at all.

II.

However, the preceding understanding is in need of careful anaylsis. On three separate occasions in the Talmud (Berakhot 24a, Kidushin 70a, and Sota 48a), statements are made about the sexual (`erva -or peritzuta) nature of a woman's voice. The one which will concern us is the primary one, in Berakhot 24a, where we read,

"Shemuel said: The voice of a woman is nakedness ( kol b'isha `erva) as it says (Song of Songs 2:14) 'for your voice is sweet and your countenance comely.'"

This passage occurs during a discussion of reciting Shema in the presence of `erva. One might interpret Shemuel as continuing that discussion, or as beginning a new one about just what is `erva irrespective of Shema. As is apparent from the discussion, a woman's exposed handbreadth (tefah) is forbidden to be seen during Shema, while her little finger (etzba ketana) is forbidden to be gazed upon with sexual intent at all times. Thus, kol ishah must be like either of these two paradigms. There is a range of authorities on either side of this dispute, but the Rambam and Tur-Shulhan Arukh rule that kol ishah is a general prohibition, not linked to Shema. This is thus the practical halakha to be taken for granted in this essay. It is an undeniably clear principle that gazing upon a woman's little finger is prohibited only where there is sexual pleasure, as is shown in Avodah Zara 20a-b. If kol ishah is like a little finger, then the implications are obvious. (Also note that Shemuel says only kol, "voice", with no mention of singing per se.)

It was my friend Dowid Mosha who first pointed out to me that kol ishah's being a general prohibition is actually potentially a leniency, not a stricture. He quoted the Rambam, Hilkhot Issurei Biah 21:2, which says [2],  "And he who looks at even the little finger of a woman to take pleasure in it is like one who looks at her private parts, and even to hear a voice of an erva or to see her hair is forbidden."

As Dowid then explained, "it is apparent that the focus is on the intent and the result. If an individual wishes to be aroused, is likely to be aroused, or is aroused inadvertently, then he or she must take the necessary measures to protect themselves." Rambam equates looking at a woman's etzba ketana, her little finger, with hearing the voice of a woman. And there is no prohibition of gazing at a woman's finger per se; the prohibition is only when one so gazes specifically for the sake of sexual pleasure.

Furthermore, Rambam speaks of scrutinizing (mistakel) her little finger (etzba ketana) with intent to take pleasure in it (v'nitkaven leihanot). He uses the word mistakel, which carries the implication of intense scrutiny, as opposed to the word ro'eh, which would imply simple ordinary sight. According to Rambam, the prohibition surrounding etzba ketana is that a man is forbidden to intensely scrutinize (mistakel) a woman's little finger with the express intention of deriving sexual pleasure thereby (v'nitkaven leihanot). Since Rambam links this discussion of etzba ketana with kol ishah, it seems apparent, as Dowid expressed, that kol ishah is likewise prohibited only when there is sexual pleasure involved.

Similarly, the Tur (Even ha-`Ezer 21), writing about different tzeniut-related prohibitions, relates them all to shema yavo l'harher bah, "lest he come to reflect (or muse) [sexually] on her". Regarding etzba ketana and kol ishah specifically, the Tur quotes the Rambam nearly word-for-word, as does the Shulhan Arukh (Even ha-`Ezer 21:1). It is clear that the Rambam and the Tur-Shulhan Arukh held that kol ishah is like etzba ketana, meaning that to listen to a woman's voice is prohibited in the same way that it is forbidden to scrutinize (mistakel - not to merely see, ro'eh) upon her finger in order to take sexual pleasure (v'nitkaven leihanot). And thus, Rabbi David Bigman rules:

"From the equation of the prohibitions regarding voice and hair to the general prohibition of looking [i.e. mistakel at an etzba ketana], we can infer that their presence does not necessarily imply sexual stimulation - rather, what is problematic is the inappropriate interaction with them by the looker or the listener. ... There is no prohibition whatsoever of innocent singing; rather, only singing intended for sexual stimulation, or flirtatious singing, is forbidden. ... The prohibition applies only to listening in a manner similar to looking at a woman for sexual pleasure."

Rabbi Avraham Shammah lists several grounds for leniency in kol ishah, indicating that "the essential one, in my opinion, is that the prohibition is specifically for one who intends to enjoy a forbidden pleasure."

Rabbi Yehiel Yaakov Weinberg (Seridei Esh 2:8) defended the German-Jewish custom of mixed-sex zemirot, as well mixed sex Jewish youth groups (similar to Benei Akiva and NCSY).[3] He interpreted the Rambam that the prohibited form of "gazing" and listening is only that which entails sexual pleasure. Rabbi Weinberg also relied on the Sedei Hemed (section Kuf, kelal 42), who ruled that a man's listening to a woman sing funeral dirges does not violate kol ishah, as no sexual pleasure is entailed in such songs. The Sedei Hemed was relying on the Divrei Heifetz (113b), who "stated that as long as a woman is not singing sensual love songs, and as long as a man does not intend to derive pleasure from her voice, there is no prohibition, such as if she is singing praises to God for a miracle, or is singing a lullaby to a baby, or is wailing at a funeral." [4] Rabbi Weinberg also cited the Sefer ha-Eshkol (Hilkhot Tefillah sec. 4 or 7), that listening to a woman sing is prohibited only where there is sexual pleasure. Rabbi Weinberg reasoned that if the Sedei Hemed could permit funeral dirges due to their lacking sexual pleasure, then he could permit Shabbat zemirot on the same grounds. It is obvious that we today can likewise permit by the same logic any song which does not lead to sexual thoughts. Thus, this interpretation that kol ishah is like etzba ketana, i.e. permitted where sexual pleasure is absent, is not only apparent from the simple meaning of Rambam's words, but is also endorsed by Rabbi Yehiel Weinberg.

Rabbi Weinberg also relied on the opinion of the Ritva and Rema, "that all is for the sake of heaven" (to be discussed later in this essay). In general, if one knows that he himself is capable of a certain act without incurring sexual thoughts, then this act becomes permitted for him.

III.

Some may react to this interpretation as brilliant casuistry, but nevertheless reject it as being against traditional Jewish practice and belief. It behooves us, then, to see whether this lenient understanding of kol ishah could stand up to non-textual (mimetic) traditional Jewish behavior and practice.

In Rabbi Dr. Marc D. Angel's Foundations of Sephardic Spirituality: The Inner Life of Jews of the Ottoman Empire, we find an amazing piece of testimony. There, on page 125, discussing the singing of Ladino (Judeo-Spanish) romances (ballads), with their often emotional if not downright sensual lyrics, Rabbi Angel says, inter alia:

"Although there were religious pietists who objected to singing love songs, the romances were very popular throughout all strata of Sephardic society. Men and women often sang these songs together. It was not unusual for women to sing solo parts in the presence of men. [Emphasis added.] People participated in the singing and enjoyed the songs in a natural, easygoing way."

Rabbi Angel offers personal testimony in note 6:
"I [Rabbi Angel] was raised in the Sephardic community of Seattle, Washington, and well remember our many family gatherings where romances were sung. Jews of great piety sang right along with those of lesser piety. I do not remember anyone ever objecting to the singing of love songs by men and women. In the early 1980s, Haham Dr. Solomon Gaon, himself a Judeo-Spanish-speaking rabbi, taught classes in Sephardic folklore at my Congregation Shearith Israel in New York City. I well remember him singing love songs, enthusiastically and nostalgically. Both of us participated in a program of Sephardic culture sponsored by the Hebrew College of Boston. A female soloist sang a selection of romances, after which Haham Gaon not only applauded loudly but rose to speak in praise of the singer for her beautiful rendition of the songs. Haham Gaon, who served as chief rabbi of the Spanish and Portuguese Congregations of England and as head of the Sephardic Studies Program of Yeshiva University in New York, was a very prominent Orthodox Sephardic rabbi and a man of impeccable piety."

Rabbi Shammah similarly testifies:
"I did not grow up hareidi, and I was not educated according to hareidi principles. From my childhood [under his parents, traditional immigrants from Syria to Israel] until my adulthood I do not remember closing my ears, nor was I instructed to do so, and I heard the best music, both from the Orient and the West, even when performed by female singers, and even at live performances. Apparently, the principle is based on the fact that there is no intent here for some forbidden pleasure. [People] have testified to me that there were Torah-observant Jews at the performances of the famous Egyptian singer, Umm Kulthum [considered by some to be Egypt's most famous and distinguished twentieth-century singer], and even more than that, they listened to her songs and learned them well, even though some of the songs had inappropriate words. Prayer leaders (among them scholars) used her tunes [in the prayer services], until this day, with the approval of halakhic authorities, who knew quite well the source [of these tunes]."

There is also firm evidence that Cochini Jewry (the Jews of Kerala, the southwest coast of India), known to be dedicated to Torah and traditional religious observance,[5] allowed women to sing in the presence of men (Wikipedia, "Cochin Jews"). According to K. Pradeep:
"Here, unlike other Orthodox communities, the Jews did not follow the Talmudic injunction against women singing in public. For centuries, the Cochin Jewish women have been singing Jewish songs in Malayalam. There was a rich tradition of women's liturgical music sung on public occasions - weddings, circumcisions and holidays. ... The social life of the Jewish community in Kerala had centered on rituals in the synagogue and festive meals at home. The women sang during these celebrations."

Similarly, according to Martine Chemana, in her article "Women Sing, Men Listen", notes:
"... On the religious level, even though their participation in rituals remained marginal, in the space reserved for them they held a complementary role in the singing of liturgical texts. ... Originally, the opportunities for performances were, as said earlier, during family celebrations associated with ceremonies which preceded and marked weddings, which in the past lasted as long as 2 weeks; name-giving for newborns (akin to Hindu custom); berit-milah; bar mitzvah; before or after religious holidays and festivals such as Passover, Purim, Hanukkah, Succoth, Simhat-Tora; related to the construction or inauguration of synagogues.... The Malayalam songs are thus only performed by women, but the men who listen to them also know the songs, as was evidenced during the memorization process. The men who were present remembered the words or the tunes when the women had forgotten them. The Cochini women also take part in liturgical singing in Hebrew in the synagogue - as I was able to hear in the Cochin synagogue during Yom Kippur in September 2001... In Cochin, apart from folk songs, some women also take part in the chanting of liturgy. Women from Yemen also sing during wedding ceremonies."

Barbara C. Johnson's description in "Cochin: Jewish Women's Music" is very much the same:
"Though Malayalam Jewish songs have always belonged to the women, men in their community often heard them performed in Kerala ... At times they sang for all-female events, such as a women's party for the bride, but generally they performed in mixed gatherings, where the men of the community listened respectfully. ... In Kerala, Jewish women sang in Hebrew together with men, joining in full voice to sing piyyutim in the synagogue, at the Shabbat family table and at community-wide gatherings to celebrate holidays and life cycle events. In contrast to many other traditional Jewish communities, it was not their custom to prohibit men from hearing women's voices raised in song."

We have already discussed the German Neo-Orthodox practice of women singing zemirot in the presence of men. However, our previous discussion was around the technical halakhic justification; let us now examine the general sociological and historical details. According to Professor Mordechai Breuer's Modernity Within Tradition (p. 6):

"Rabbi Yehiel Jacob Weinberg (1885-1966) tells the following story on that subject [in Shu"t Seridei Eish]: arriving in Berlin from Lithuania in 1914, he noticed that, in Orthodox families, men and women sang the table hymns [zemirot] together at Sabbath meals, even though, according to religious regulations, men were forbidden to listen to the singing of women. When he expressed his astonishment about that, it was explained to him that leading Orthodox rabbis had sanctioned such conduct on the basis of halakhic considerations. In some families, domestic singing was even led by the women, a practice that, at times, embarrassed a guest who was unaccustomed to it. Such a lack of restraint was permitted - mainly in the family circle - but was often censured when efforts were made to apply it to society at large."

But the footnote to that final sentence reads (ibid., p. 411):
"However, see Jeschurun (1885), 18:11, for a report of a public function at the Orthodox school in Frankfurt am Main [Rabbi Hirsch's community] at which a teenager from the girls' Lyzeum [the girls' section of the Orthodox day school founded by Rabbi Hirsch] sang in the presence of a crowded audience."

Further, in Modernity Within Tradition, we read (p. 150):
"Attendance at the theater, the opera, the concert hall, and even the cabaret was no longer a rarity among Orthodox families after the end of the century. In 1882 the Jüdische Presse already carried a rather long, well-disposed review about Saint-Saëns's opera Samson and Delilah. ... The Israelit praised an observant female opera singer as well as a strictly observant male concert vocalist. Social evenings in Orthodox organizations of various kinds featured stage performances or music. In 1906 the board of the Jewish youth group Livyath Hen [Wreath of Grace] in Mainz sent out invitations to a talk by Rabbi Dr. J. Bondi that was followed by evening entertainment consisting of music, a comedy (played by a lady and three men), a vocal quartet, and singing by five ladies and four men."

Even though neither Rabbi Hirsch nor any other rabbis attended the opera (contrary to the regnant "common knowledge") [6], it appears that plenty of German Neo-Orthodox Jews did. It appears quite safe to say that to one degree or another, German Neo-Orthodoxy sanctioned men listening to women singers.
According to our evidence, then, it was considered natural and acceptable by traditional Jews that men hear women sing, in the Judeo-Spanish lands (Turkey, the Balkans, Greece, etc.), in Egypt, Syria, Germany, and Cochin (India). Thus, aside from textual authority in the traditional halakhic literature, we find that we also have the support of traditional Jewish practice for our lenient interpretation. This may not be the interpretation of the majority of historical Jewish communities and traditions; what is clear, however, is that both a significant textual basis for leniency exists in the primary halakhic sources, and that a number of significant and important Jewish communities relied on this leniency in practice.

IV.

Until now, we have explained the matter from one perspective, by showing that according to the Rambam (whom the Shulhan Arukh accepts as the primary law) kol ishah is prohibited like etzba ketana, i.e. only where there is sexual pleasure involved. But we may investigate the matter from another direction, and come to the same conclusion.

Rabbi David Bigman quotes the Maharshal (Yam Shel Shelomo, Kidushin 4:25 no. 4) as saying:
"... And we do not hold according to Rabbi Eliyahu Mizrahi, who forbids talking to women, even to ask her where her husband is, ... and the ruling that one does not use a woman at all, adult or child, we shall write, God willing, ... that nowadays we rely on the opinion opposed to Shemuel, who said that ‘everything done for Heaven's sake is permitted.'"

This statement by the Maharshal has a storied history, and deserves greater elaboration than is possible here. [7] Briefly put, in the Gemara, there are several stories of rabbis who seem to have committed various infractions of the laws of tzeniut, explaining to others that for individuals of their level of piety, the women were like geese or wooden beams, i.e. not sexually enticing, and that "all is for the sake of heaven" (ha-kol le-shem shamayim). Sefer ha-Hinukh (188) says that no one today may apply these rationalizations for himself, but by contrast, the Tosafist Rabbi Yitzhak of Corbeil in Sefer Mitzvot Katan (30) and Ritva (end of Kidushin) hold that if any individual knows himself to be capable of looking at women without impure thoughts, then he is permitted to so do. In the Ritva's words:
"... and so is the law that everything is according to what a person knows about himself, if it is appropriate for him to maintain a distance [from women] because of his sexual urges, he should do so, ... while if he knows that his sexual urges submit to him and are under his control ... he is permitted to look and to speak with a woman who is forbidden to him and to ask the well-being of another man's wife ..."
Rabbi Hai Gaon expressed similar logic, as Rabbi Henkin shows ("Hirhur and Community Norms"). Most importantly, the Maharshal, relying on the Ritva, says in his Yam Shel Shlomo (Kidushin, 4:25 no. 4), that
"Everything depends on what a person sees, and [if he] controls his impulses and can overcome them he is permitted to speak to and look at an erva and inquire about her welfare. The whole world relies on this [emphasis added] in using the services of, and speaking to, and looking at, women."

What is particularly noteworthy about this Maharshal is that whereas Rav Hai Gaon and the Semak and Ritva spoke of individuals who know themselves, the Maharshal speaks of "the whole world", i.e. an entire community or society being collectively inured to women. The Maharshal is following Tosafot in Kidushin 82a:
"On ‘all is for the sake of heaven' [i.e. the justification these rabbis in the Gemara offered for their apparently immodest acts] we rely nowadays [in] that we make use of the services of women."

Tosafot speaks of "we"; like Maharshal, Tosafot is going beyond the individuals spoken of by the Semak and Ritva, and instead speaking about an entire society. Additionally, the Ramah (Even ha-Ezer 21:5) follows Tosafot [8], and the Levush (the Maharshal's student) and Arukh ha-Shulhan both rely on this "whole world" extension made by the Maharshal and Tosafot. [9] The upshot is that apparently immodest acts are permitted if the individual knows himself (Rav Hai Gaon, Ritva and Semaq) or his society (Maharshal, Tosafot) to be on the level that he will not have impure thoughts. This provides us a basis to permit kol ishah, along with any other particular acts which were once considered sexually immodest, but which we today know we are inured to. Whether listening to women sing, or shaking their hands, or anything else, the permission is hereby granted as long as we know that we are truly able to engage in these acts without impure thoughts.

We still need to explain why the Maharshal did not apply kol ishah to a woman's speaking voice. The phrase kol ishah literally indicates a woman's voice, and not her singing voice per se. As we see from the Maharshal, other rabbis (Rabbi Eliyahu Mizrahi) indeed held that speaking to women in general was prohibited, and the Rambam [10] and Sefer ha-Hasidim (sec. 313) held similarly. [11] Why, then, does the Maharshal interpret kol ishah as being limited to singing? And why did other authorities also limit kol ishah to song?

The significance of this point should not understated. Countless Orthodox authorities take it for granted that kol ishah is limited to singing. But many early authorities did in fact include speech in the prohibited category of kol ishah. Rabbi Saul Berman makes a similar complaint, arguing that the Aharonim forgot what the real reasoning behind kol ishah was, and turned it into a blanket prohibition. Because of this, the Aharonim took one position of some Rishonim for granted, viz. that kol ishah is limited to singing. Why?

One could offer a historical-sociological-psychological argument that Maharshal was limited and influenced by his own practical experience, and this argument has indeed been put forth before. The Rashba (Hidushei ha-Rashba, Berakhot 24) says [12], regarding the handbreadth of a woman being `erva during the recitation of the Shema, that,
"the Raavad of blessed memory explained that it is possible that this refers to a normally covered part of her body ... but her face and hands and feet and the non-singing voice of her speech, and her hair that comes out of her braid that is not covered, one need not worry about these as he is used to them and not disturbed."

In other words, a "handbreadth" (which according to the Talmud is prohibited only during Shema, whereas an etzba ketana is prohibited at all times) means not that just any handbreadth-sized area of the woman's body is erva, but that only an area that is normally concealed is erva.[13]  According to the Ra'avad, then, "the non-singing voice of her speech" is not erva because it is not normally "concealed", because it is ordinarily "exposed", so to speak. Since her speaking voice is ordinarily heard, her speaking voice is like her face or her hands, and only her singing voice is seldom heard, making normally concealed and thus erva. The Ra'ayvah (Berakhot 76) [14] voices what could be said to exemplify a general Ashkenazi approach:
"All the things mentioned above as sexually stimulating are only to be treated as such when they are not customarily exposed, but [for example, with regard to] an unmarried woman whose hair is customarily exposed [15], we need have no concern, for there is no arousal, as with regard to her voice, for one who is accustomed to hearing it.

Based on this, Maharshal dismissed the possibility that kol ishah prohibited mere speech; such speech is customarily uncovered, as it were, and only song is customarily concealed.

But all this provides a basis for leniency as well: if, in the times of the Ra'avad and Maharshal, a woman's singing voice was seldom heard and was thus like the concealed parts of her body, perhaps today, her singing voice is not seldom heard, making it no longer "concealed". Perhaps today, her singing voice, being commonly heard (at least on the radio), is just like her speaking voice, i.e. like an ordinarily-exposed part of her body, like the face or hands, and subject to fewer (if any) prohibitions.

And in fact, Rabbi Joshua Falk (Perisha on the Tur, Even ha-`Ezer 21:2) stated precisely the Maharshal-ian habituation thesis with regard to kol ishah![16]  Rabbi Falk introduces the concept of regilut, "regularity", as relevant to kol ishah. Apparently, any voice to which one is accustomed is no longer prohibited by kol ishah. According to the Ramah (Shulhan Arukh, Orah Haim, 75:3), "a voice to which one is accustomed is not considered erva." [17] Also, the Ramah (ibid. Even ha-`Ezer 21:5) held that "all is for the sake of heaven." [18]

Let us consider another halakha relating to male/female relationships, to see how halakhot "change" based on changed circumstances. Rabbi Shammah notes that according to Mishnah Kidushin 4:13, a male bachelor may not teach children, and women may not teach children at all. The Gemara explains (82a), that these prohibitions stem from fears of sexual impropriety i.e. that the teacher (either an unmarried man, or any woman, married or not) will become engaged in forbidden relations with the childrens' parents. Rambam (Hilkhot Issurei Biah 22:13 and Hilkhot Talmud Torah 2:4) and the Shulhan Arukh (Yoreh Deah 245:20-21 and Even ha-Ezer 22:20) both rule in this way. Rabbi Shammah exclaims that no one even attempts to keep these laws anymore! Furthermore, the Shulhan Arukh issues a stern warning (Even ha-Ezer 21:1) to "keep very far from women", and it prohibits a man to walk behind a woman in the marketplace. Rabbi Shammah points out that those who strictly forbid kol ishah are never as strict regarding mixing in the marketplace. Even the Hareidim go to shopping centers and markets frequented by men and women!

Since we see that religious authorities no longer uphold the prohibition for male bachelors and women to be schoolteachers, or for men walking behind women in the marketplace, then why cannot we apply the same leniency to kol ishah? Rabbi Shammah caustically remarks on the hypocrisy of those who are lenient in some areas but stringent in others. According to Rabbi Shammah:
"... It seems to me, and this should be said as a generalization, that what is being considered is not really a matter of [women's] modesty. Rather, halakha is being used as a religious marker. That is to say, in a situation where it is quite impossible to be stringent, such as distancing oneself from women very, very much, people aren't careful. But it is very easy to be stringent in forbidding hearing a woman's voice, while - in the best case - the added value of an internal sense of religiosity is great. In a less positive light, it is a minute effort for a huge return of being able to externally demonstrate one's religiosity. This phenomenon, that generally is quite widespread, is worthy of penetrating criticism, and the words of the prophets are brimming with such [criticism]."

Rabbi Shammah cites the Ritva and Maharshal which we discussed earlier, viz. regarding how being inured and habituated to women and resistance to having sexual thoughts permits certain otherwise immodest activities. Rabbi Shammah continues, and notes that Rabbi Ovadia Yosef, following the Levush (who in turn followed the Maharshal), also permits many examples of what was once a violation of tzeniut but which is nowadays customary and ordinary. Rabbi Shammah notes that Rabbi Yosef rejected applying this logic to kol ishah. But, as Rabbi Shammah continues, we have nevertheless learned the relevant basic principles, and we may apply them to kol ishah, even if Rabbi Yosef himself did not.

V.

Until now, we have been discussing what we have been calling a "leniency," i.e. the permission for men to listen to women sing based on the fact that kol ishah is prohibited only where sexual pleasure is entailed. However, we must emphasize that this leniency is not absolute; kol ishah is in fact prohibited where sexual pleasure is present. Rabbi Shammah says:
"... the wise person... should know that no two situations are exactly alike and therefore should use good judgment with integrity and honesty, because the essence of these laws is not to observe them literally and formally, but rather their purpose is to improve society."
This is not an absolute heter; but a conditional heter, based on what one knows he or she is capable of.

Similarly, according to Rabbi Bigman:...
"It is permitted to be lenient with regard to listening to the voice of a woman singing when there is a clear sense that the listening is innocent and the singing is innocent. Such an assessment is dependent on five conditions: 1. Context and appropriate atmosphere, 2.The lyrics of the song, 3. The musical style, 4. Dress, 5. Body language. ... do not make concessions of the refined foundations of Torah culture, and do not cooperate with the vulgar, commercialized aspects of the culture surrounding us."

VI.

Since kol ishah is forbidden only if it causes immoral sexual pleasure, shouldn't women be forbidden to hear kol ish if mens' singing gives them improper pleasure? Rabbi Bigman states: [19]
"In an approach that is not accepted as halakha, the Sefer Hahasidim (614) held that there is a parallel prohibition on women to listen to the voices of men. Even though this is not practiced halakha, it is ideal to pay attention to the five conditions I have outlined even in the case of a man singing in the presence of women."

According to Rabbi Bigman, anything sexually immodest is forbidden, regardless of which sex is singing and which is listening. Similarly, in a personal communication I had with Rabbi Marc Angel, it was axiomatic to Rabbi Angel that "by logical extension, male singers who intend to be erotically stimulating to females should also be prohibited from singing in the presence of women." If the halakha speaks only of men listening to women singing, it is likely that this is only because that was the most common situation of sexual immodesty.

When one becomes sympathetic to the feelings of women [20], something else will become apparent. As Rabbi Angel said to me in the course of his advising me on this present essay, "If males are stimulated by hearing women singing zemiroth or anything else, then this is the male's problem, and the male should leave the premises. The burden of responsibility devolves on the listener, not the singer. ... It's the responsibility of listeners to know what they can or can't handle; the burden of responsibility is not on the singers." Similarly, Rabbi Shammah said, "Even more, this formulation does not attempt to 'defend the purity of men' at the cost of hiding the women and covering them."

VII.

According to Rabbi Cherney:
"In our own generation, R. Ovadia Yosef has expressed the opinion that ‘you should not let your heart seize the argument that nowadays, since we are accustomed to the voices of women, we need not be concerned that [the voice arouses lewd thoughts], for we may not say these things out of our own understanding if it is not mentioned by the authorities.' (Responsa Yabia Omer vol. 1 sec. 6.) ... In conclusion, we should view this prohibition of the sages as well as others of its genre as protection against a breakdown of sanctity, a measure incumbent upon us as sincerely observant Jews."

According to Rabbi Howard Jachter:
"Both Rav Ovadia Yosef (ibid. [ Yabia Omer 1:6]) and Rav Yehuda Henkin (Teshuvot Bnei Banim 3:127) reject the claim that this prohibition [of kol ishah] does not apply today since men nowadays are accustomed to hear a woman's voice. These authorities explain that since the Gemara and Shulhan Arukh codify this prohibition, we do not enjoy the right to abolish it. The Gemara and its commentaries do not even hint at a possibility that this prohibition might not apply if men become habituated to hearing a woman's voice. Thus, all recognized Posekim agree that the prohibition of kol ishah applies today."

But we have shown that one may disagree with this conclusion. Rabbi Bigman states:
"There is no prohibition whatsoever of innocent singing; rather, only singing intended for sexual stimulation, or flirtatious singing, is forbidden. Although this distinction is not explicit in the early rabbinic sources, it closely fits the character of the prohibition as described in different contexts in the Talmud and the Rishonim, and it is supported by the language of the Rambam, the Tur, and the Shulhan Arukh."
Although Rabbis Ovadia Yosef and Yehuda Herzl Henkin are correct that the prohibition of kol ishah is binding according to the literature, yet leniencies are implicit in sources such as Rambam and the Tur-Shulhan Arukh. In fact, these leniencies were already drawn upon by rabbinic authorities, whether to permit speaking to a woman (Maharshal, classifying only singing as kol ishah) or to permit funeral dirges and mixed-sex zemirot (Rabbi Yehiel Weinberg, Sedei Hemed, Divrei Heifetz). The problem is exactly that which Rabbi Saul Berman expressed: [21]

"For the Aharonim... kol b'ishah ervah is a declaration that a woman's singing voice, under all circumstances, is to be considered a form of nudity. In light of this proposition, it is understandable that the Aharonim virtually totally discard the limiting principle of accustomedness which the Rishonim used so extensively. [Rabbi Berman cites aforementioned Ra'avyah, Rashba/Ra'avad, Ritvah, Maharshal, and Ramah.] ...The importance of this position [of Rabbi Weinberg] lies in the fact that it constitutes a major departure from the treatment of a woman's singing voice as a form of [absolute inherent] nudity. It reinstates the tradition of the Rishonim, that the ban on a woman's voice is functionally motivated and is related to the likelihood of its resulting in illicit sexual activity."

Works Cited:

Angel, Marc. Foundations of Sephardic Spirituality: The Inner Life of Jews of the Ottoman Empire. Jewish Lights Publishing, 2006.

Berman, Saul. “Kol `Isha”, in Rabbi Joseph H. Lookstein Memorial Volume, ed. Leo Landman. New York: Ktav Publishing, Inc., 1980. <http://www.edah.org/docs/Kol%20Isha.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDJ8ptI&gt;.)
But see also the criticism on Rabbi Berman's article:
1) Henkin, Yehuda Herzl. “Kol Isha Reviewed,” in in Equality Lost, Jerusalem: Urim Publications, 1999/5759. <http://www.lookstein.org/articles/kol_isha.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDXtQ2x&gt;.)
2) Student, Gil. “Kol Isha,” Hirhurim (blog). 5 May 2004. <http://hirhurim.blogspot.com/2004/05/kol-ishah.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDkmeSX&gt;.)
3) Student, Gil. “Kol Isha III,” Hirhurim (blog)., 6 May 2004. <http://hirhurim.blogspot.com/2004/05/kol-ishah-iii.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDn7X32&gt;.)

Bigman, David.
1) Cyberdov: Life in Riverdale, NY (Blog), 9 August 2008. (Hebrew original.) <http://www.dovweinstock.com/blog/kol-beisha-erva-hebrew&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDECU7zp&gt;.)
2) “A New Analysis of 'Kol B'Isha Erva'.” trans. Yedidya Schwartz. (English translation.)
2a) The Institute for Jewish Ideas and Ideals, 4 February 2009; <http://www.jewishideas.org/rabbi-david-bigman/new-analysis-kol-bisha-erva&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEQ7KeW&gt;.)
2b) Torah in Motion, 8 April 2008; <http://www.torahinmotion.org/virtproglib/e-tim/download/Bigman_Kol%20BIsha%20_translation-FINAL.doc&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEZOJgS&gt;.)
2c) Cyberdov: Life in Riverdale, NY (Blog), 4 August 2008. <http://www.dovweinstock.com/blog/kol-beisha-erva-english&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDENpfDi&gt;.)
(The Torah in Motion and Cyberdov editions have fuller footnotes than the Jewish Ideas edition.)

Breuer, Mordechai. Modernity Within Tradition: The Social History of Orthodox Jewry in Imperial Germany, trans. Elizabeth Petuchowski from Jüdische Orthodoxie im Deutschen Reich. Oxford, New York: Columbia University Press, 1992.

Broyde, Michael. “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?” Tradition 42:3, 2009. <http://traditiononline.org/news/_pdfs/0095-0180.pdf&gt; Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEqZZzK&gt;.)

Chemana, Martine. “Women sing, men listen: Malayalam folksongs of the Cochini, the Jewish Community of Kerala, in India and in Israel,” trans. from “Les femmes chantent, les hommes écoutent. Chants en malayalam (pattu-kal) des Kochini, communautés juives du Kerala, en Inde et en Israël,” in Bulletin du Centre de recherche français de Jérusalem, November 2002. English: <http://bcrfj.revues.org/index942.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEyqa90&gt;.) French: <http://bcrfj.revues.org/index752.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFSw8NF&gt;.)

Cherney, Ben. “Kol Isha.” JHCS 10, pp. 57–75. <http://www.jofa.org/pdf/Batch%201/0099.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFMA910&gt;.)

“Cochin Jews.” Wikipedia, The Free Encyclopedia, page version ID 340155258, last revised 26 January 2010 16:37 UTC. <http://en.wikipedia.org/w/index.php?title=Cochin_Jews&oldid=340376341&gt;

Henkin, Yehuda-Herzl. “Hirhur and Community Norms,” in Equality Lost, Jerusalem: Urim Publications, 1999/5759. <http://bermanshul.org/frimer/SpireBW200_1S021.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFozhSx&gt;.)

Henkin, Yehuda-Herzl. “Contemporary Tseni’ut”, Tradition 37:3, 2003.

Jachter, Howard. “The Parameters of Kol Isha.” Rabbi Jachter's Halacha Files (and other Halachic compositions): A Student Publication of the Isaac and Mara Benmergui Torah Academy of Bergen County. <http://www.koltorah.org/ravj/The%20Parameters%20of%20Kol%20Isha.htm&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFwVBR4&gt;.)

Johnson, Barbara C. “Cochin: Jewish Women's Music.” Jewish Women: A Comprehensive Historical Encyclopedia. 1 March 2009. Jewish Women's Archive. <http://jwa.org/encyclopedia/article/cochin-jewish-womens-music&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDG5jhqu&gt;.)

Pradeep, K. “Musical Heritage,” The Hindu (“Online edition of India's National Newspaper”), 15 May 2005. <http://www.thehindu.com/thehindu/mag/2005/05/15/stories/2005051500300400.htm&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGDaI4s&gt;.)

Shammah, Avraham,
1) Article in Kolekh. 16 January, 2007 <http://www.kolech.org.il/show.asp?id=25318&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGc9o7G&gt;.)
2) Author's response to criticisms to the first article. Kolekh. 27 January, 2007. <http://www.kolech.org.il/show.asp?id=25484&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGjN3e9&gt;.)
3) Both of the preceding Hebrew articles are translated together by Debby Koren as “Kol b’Isha with a Current Perspective: A halakhic opinion offered by Rabbi Avraham Shammah.” <http://www.jofa.org/pdf/uploaded/1529-GHKB8620.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGN2Q9L&gt;.)

Shapiro, Marc. “Another Example of 'Minhag America'.” Judaism, 39:2, 1990, pp. 148-154. <http://www.jofa.org/pdf/Batch%201/0060.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGuCCz9&gt;.)

Shapiro, Marc. “Obituary: Professor Mordechai Breuer zt”l.” The Seforim Blog, 11 June 2007. <http://seforim.blogspot.com/2007/06/marc-b-shapiro-obituary-for-prof.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDH2gcZT&gt;.)

Student, Gil. “Sources Regarding Kol Isha.” <http://www.aishdas.org/student/kolisha.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDH7Hi7X&gt;.)

Endnotes:

1.   Precise citations, as well as more thorough discussion, of all these authorities is found in Jachter.  Berman and Cherney also offer detailed discussion of Aharonim.

2. Translation according to Rabbi Bigman.

3. Nearly every recent secondary source on kol ishah discusses Rabbi Weinberg, but the most thorough discussions are in Berman (pp. 63f. on pp. 10f. of the PDF), Cherney (p. 69 on p. 7 of the PDF), Jachter, and Shammah (pp. 5-9).

4. Quoted from Koren's footnote 21 in Rabbi Shammah’s article.

5. See Wikipedia, “Cochin Jews,” s. v. "The Jewish Encyclopedia states,..." In the specific revision of that article cited in this essay (viz. 340155258), that entire paragraph in Wikipedia was written by myself, under the Wikipedia pseudonym “Sevendust62”.

6.Professor Marc Shapiro, “Obituary: Professor Mordechai Breuer zt”l”. 7. For thorough discussion, see especially Henkin, “Hirhur and Community Norms” and idem. “Contemporary Tseni’ut,” sec. “C. The Sugyot in Kiddushin and Sota”, pp. 25ff. Also, Berman (p. 53 on p. 5 of the PDF; n. 89 on p. 62 on p. 10 of the PDF), Cherney (pp. 73f. on pp. 9f. of the PDF), and Shammah (pp. 4f., 11-13.).  

8. Cherney, op. cit.

 9.   Henkin, op. cit. 10. Blau (Jerusalem: 1960), vol. 2, pp. 398-400, no. 224, as cited by Berman (p. 53 on p. 5 of the PDF, p. 56 on p. 7 of the PDF) and Cherney (p. 60 on p. 3 of the PDF), and Bigman (n. 9).

11. Berman (op. cit.) and Cherney (op. cit.).

12.Quoted from Rabbi Bigman.

13.  Cf. Bigman (n. 9) and Shapiro “Another Example of 'Minhag America'” (p. 152 on p. 5 of the PDF) for quotations from the Beit Yosef and Tur (respectively) elaborating on customary concealment and exposure. This principle, of permitting the exposure (and sight) of what is customarily exposed, and prohibiting the exposure of what is customarily concealed, applies throughout the laws of tzniut, as do the principles of hirhur and hana'ah. Cf. n. 15 below on hair-covering.

14. Quoted by Berman (pp. 48f. on p. 3 of the PDF) and Bigman (last two sentences of the lengthy quotation ending with the anchor for n. 28), and paraphrased by the Maharam Alashkar, as quoted in turn by Shammah (p. 11).

15. The approach this entire essay takes on kol isha, could be applied to other areas of tzniut (cf. n. 13 above), including hair-covering, both of married and unmarried women. See Shapiro “Another Example of 'Minhag America'” and Broyde "Hair Covering and Jewish Law." However, the Arukh ha-Shulhan would reject this; see Shapiro (pp. 149-150 on pp. 2-3 of the PDF) and Henkin "Hirhur and Community Norms:" (p. 82 on p. 2 of the PDF). 

16. Cherney, p. 61 on p. 3 of the PDF.

17. Cherney, ibid.

18. Cherney, p. 74 on p. 10 of the PDF. 19. Cf. Berman, bottom p. 53 on p. 5 of the PDF, s.v. “A further fascinating...”; and Shammah p. 4, s.v. “It was my intent...”.

20.Much of Rabbi Weinberg's responsum deals with the personal subjective feelings of women - Rabbi Weinberg ruled leniently largely because he knew the women would be insulted and slighted if he ruled strictly; and Rabbi Shammah devotes particular attention to this aspect of Rabbi Weinberg's responsum. See also Chemana and Johnson, who note that the Cochini Jews were not only lenient in kol isha, but that also, they offered an education to women equal to that availed men.

21. Pf. 62f. on p. 10 of the PDF.

Post-Publication Addendum (4 Feb 2010):

In note 15, I remark that the leniency on kol isha can be applied to
other areas of tzniut, such as hair-covering. I found an additional
reference, an article by Rabbi Irving Greenberg making the same
argument, only in the opposite direction. I.e., the article shows
leniency in hair-covering and applies this to kol isha. Rabbi
Greenberg is also concerned with the dignity of women (cf. n. 20).

Dr. Charlie Hall of the Albert Einstein School of Medicine of Yeshiva
University told me that Rabbi Joseph Soloveitchik held that the
prohibition of kol isha applied only in situations that would engender
improper thoughts. Dr. Hall told me that Rabbi Soloveitchik attended
the opera, and considered it to be “advanced culture”, and that far
from being prohibited (for containing kol isha), that its attendance
was actually to be encouraged. He added that Yeshiva University holds
an annual opera fundraiser.

I found that Rabbi Aaron Rakeffet-Rothkoff of Yeshiva University gives

as kol isha only "sexual" or "sultry" singing.

Urim and Tumim
We live in times when the demands on intellectual conformity are increasing to the point where to challenge is to offend and to think in an unusual way is to court charges of heresy. This article is an invented midrash that presents uncertainty in a positive rather than a negative light.

One of the challenges in a modern world is how to make sense or find meaning in what look, on the surface to be primitive phenomena in the Torah. The central artifact, the Tabernacle, as described in detail in Exodus, is full of what look like syncretistic devices. The winged cherubs bring to mind the Assyrian winged animals or kings where wings bestow a supernatural quality to the subjects. The intricate and multi layered priestly garments appear to be based on earlier models. Uniquely, the Name of God upon various elements of the High Priest’s dress is what makes them specifically Jewish. And the Urim and Tumim, on his breastplate that were the ancient mechanism for consulting God, look very much like ancient oracles, auspices, lotteries that relied either on looking into entrails or leaves, casting dice or bones or priests or prophets speaking from trances or combining letters.

If we follow Rashi in his commentary on Exodus 31.18 that there is no necessary chronological order to the Torah and building the Tabernacle was a response to the Golden Calf, then it is possible to think of building a sanctuary as a post-factum decision, a response to a perceived need, rather than an a priori necessity. This might be one explanation of the adaptation of other motifs.

And in a similar vein, the phrase ‘the Torah speaks in human language’ as the Talmud says 30 times, or ‘the Torah spoke symbolically’ implies addressing an audience appropriately for its time and in ways that might be accessible appropriately for different intellects and temperaments. Of course one would need to distinguish between a legal instruction and a narrative that is intended to convey value and ideology.

The Divinity of Torah (or its Genius) lies in that it does indeed lend itself to constant re-interpretation and sophisticated ideas as well as very basic ones. But then the challenge is to know what interpretations are authentic and which are not. Different religions, let alone commentators within the same one, can look at a text and learn very different lessons from it. And although we have the principles of Rebbi Yishmael for deducing biblical laws, no such formula exists for confining interpretations of text and Midrash.

No one had more courage than Maimonides in trying to reconcile loyalty to ancient texts with current philosophical rationalism. So when we look at the sacrificial system or the contents of the Tabernacle, we can take a Maimonidean approach that he himself uses in ‘The Guide to the Perplexed’ and say they were temporary artifacts of a transitional stage from paganism to monotheism. Or we can agree with Philo of Alexandria that they were symbols. Amongst our post Talmudic ‘canonical’ texts, no book uses more symbolism or metaphors than the Zohar

It the use of metaphor and language that I want to explore in relation to the Urim and Tumim which as the Midrash says are named for ‘The Lights’ that illuminate that which is ‘Sealed.’ Commentators are divided as to how they actually worked. Hardly surprising since they disappeared during the First Temple times and were never replaced.

The Urim and the Tumim in public.

In Exodus 28 where the priestly clothes are described it says simply that “Aaron shall bear the names of the people of Israel in the breastplate of judgment upon his heart, when he goes in to the holy place, for a memorial before the Lord continually. And you shall put in the breastplate of judgment, the Urim and the Tumim; and they shall be upon Aaron’s heart, when he goes in before the Lord and Aaron shall bear the judgment of the people of Israel upon his heart before the Lord continually. And you shall make the robe of the ephod all of blue.”

On the face of it the Urim and Tumim seem to be the Twelve Stones mentioned specifically as inserted into the breastplate the ‘Choshen Mishpat’, the ‘breastplate of judgment’ and inscribed with the names of the tribes. They were worn over the Ephod, the outer gown that the priests wore.

Leviticus 8.8 says “And he put the breastplate on him; also he put on the breastplate the Urim and the Tumim.” The Urim and Tumim are placed on top or in the breastplate and indeed the breastplate was designed to have a fold. This is why some commentators think the Urim were some document placed within the breastplate.

Under what circumstances are they consulted? In Numbers 27.18“And the Lord said to Moses, Take Joshua the son of Nun, a man in whom is spirit, and lay your hand upon him; And set him before Elazar the priest, and before all the congregation; and give him a charge in their sight. And you shall put some of your honor upon him, that all the congregation of the people of Israel may be obedient. And he shall stand before Elazar the priest, who shall ask counsel for him according to the judgment of Urim before the Lord; at his word shall they go out, and at his word they shall come in, both he, and all the people of Israel with him, all the congregation.”

Moses does not appear to have had need of the Urim for he was in direct contact with God. But Joshua, the succeeding ‘secular’ leader did, and he consulted the oracle through the Priests.

The Urim are mentioned in passing by Moses on his deathbed as the mark of piety in the priesthood. And Samuel adds the Urim to a list of ways of Divine communication in addition to dreams and prophets.

In 1 Samuel 33.8 Kind David consults the High Priest and asks him to consult the Ephod. But why does the text imply it is the Ephod that needs consulting? Unless focusing specifically on the ephod is simply a way of describing the ‘fully equipped’ High Priest. When David much earlier, escaping Saul, visited the priests’ city of Nov and asked for food and weapons he is referred to the sword hidden behind the Ephod 1 Samuel 21 10. So the Ephod in David’s time seemed to be more than just a tunic.

This is all we have from the Bible apart from Ezra and Nehemiah’ desire to see the Urim reinstated. But in fact they never were. No wonder the later commentaries are so varied. In the Talmud the tradition was that a request would be submitted, such as ‘should we go to war’ ( Yoma 73b) and letters would light up giving the response which only the High Priest could decipher and according to tradition sometimes got wrong. The Talmud also suggests the etymological significance as Urim, lighting the way through the correct advice and Tumim, the completion of the Process. It is the Zohar that characteristically suggests a Male Female duality in the two words and associates them with the creation.

The Urim and Tumim in private.

There is altogether a very different dimension to the Urim and Tumim. Judaism, in common with many other traditions, contains the comparison, contrast and duality between public and private. There have always been the public spaces, Sinai, the Tabernacle, the Temple and the Synagogue. They stand for and emphasize the significance of and responsibility for community and people. Public is of course the opposite of private, the opposite of the personal. Yet at the core of religion is the personal encounter with God, the entirely subjective experience of God, according to mystics and intellectual recognition according to the rationalists. There exists constant tension between the two, the need for privacy and the need for the public and Torah requires us to do both and find time for both.

In Deuteronomy 33.8 Moses in his farewell speech turns to the tribe of Levi and says “ Your Tumim and your Urim are the sign of ( or help you become) a pious person.” This, in common with much of the last statements of Moses is poetry and contains a message that is not a legal one. In analyzing the qualities of the different tribes Moses, like Jacob before him, looks for a crucial characteristic for better or for worse that both defines the tribe and represents either a positive or a negative feature of the people in general.

Levi here of course includes the Priests as well as the Levites but notice too the inversion. Here the Tumim come before the Urim. The character of simplicity, goodness, Tam as used of Yaakov, is the inherited quality but it needs to be qualifies by the light of understanding. This balance between the passion of Pinchas and the sober responsibility of inherited Priesthood is a reiterated theme going back to the Rape of Dinah and Yaakov’s declaration that Shimon and Levi have to be separated ( Genesis 49.5). The Urim and Tumim therefore become symbols of ‘civilization’ of reining in unbridled passion and channeling it into kindness, mercy and consideration which should (in theory of course, it rarely was in reality) the ideal of the priest and the communal leader. On a personal as well as a communal level, the Urim and Tumim were designed to show the right way to live, to resolve conflicts and bring about resolution.

The unspecified nature of the Urim and the fact of their disappearance so early in the history of the Judaism, lent them a certain romantic aura. But if Judaism has survived for so long without them, the interesting question is what they came to signify in the religious tradition. And there is surprisingly little written about them.

The idea that one seeks, looks for resolution can be taken to be a command to conform, obey and suppress. But it can equally be an obligation to search, to discover and if possible to resolve. Is resolution the ideal state? To help clarify this problem I suggest we can make a connection between another well-known and obscure pair, Tohu VaVohu in Genesis 1.

Tohu Vavohu

At first sound Tohu seems to mirror Tumim. But whereas Tumim resonates with completion, Tohu is closer to ‘lost’ or ‘uncertain.’ Yet there is symmetry in the pairs of words. Urim, meaning light or enlightenment leads to the resolution or completion of a question or course of action, Tumim. Tohu also implies confusion, uncertainty that may eventually be resolved through something internal; Vohu can be inverted to read Hu Bo, 'It is in it.' Chaos has the means within it of being turned into constructive matter. This reversal of letters is a common device used in rabbinic literature. For example the letters of Shamayim, ‘Heavens’ are divided to read sham mayim, there is water ( Chagigah ch.12a) or in the Zohar they are juxtaposed to read Miy or Mah Sham, Who or what is there. On the other hand Vohu (Hu VO) implies there is something there. In both cases there uncertainty leads to resolution.

What is more, the main reference to Tohu VaVohu in the Talmud comes in tractate Chagigah which of course is the tractate that devotes most space to mysticism including the famous adventure of the four rabbis in the ‘Orchard.’
“Rab Judah further said that Rab said: Ten things were created the first day, and they are as follows: heaven and earth, Tohu [chaos], Vohu [desolation], light and darkness, wind and water, the measure of day and the measure of night.

Heaven and earth, for it is written: In the beginning God created heaven and earth. Tohu and Vohu, for it is written: And the earth was Tohu and Bohu. Light and darkness: darkness, for it is written: And darkness was upon the face of the deep; light, for it is written: And God said, Let there be light. Wind and water, for it is written: And the wind of God hovered over the face of the waters. The measure of day and the measure of night, for it is written: And there was evening and there was morning, one day.

It is taught: Tohu is a green line that encompasses the whole world, out of which darkness proceeds, for it is said: He made darkness His hiding-place round about Him. Bohu, this means the slimy stones that are sunk in the deep, out of which the waters proceed, for it is said: And he shall stretch over it the line of confusion [Tohu] and the plummet of emptiness.” Chagigah 12a

The essential characteristic of a mystical approach is that objects in the material world are not as they seem. Hence of course Rebi Akivah’s advice in Chagigah 14b to the other three explorers of the Pardess, not to say that the pure marble stones were water. Appearances are deceptive. In other words Tohu VaVohu can be considered a mystical element as much as a physical one.

Chaos is in effect a necessary stage in the process of achieving order and content. In Genesis 37.15 Joseph, looking for his brothers, seeking direction, is lost in the field ‘ToEh basadeh’ when a man, or rather as Rashi suggests, an angel, directs him to his fate. Although it is not etymologically correct to make any association between ‘Toeh’ and ‘Tohu’ because Tohu is spelt with a Tav, Hey, Vav whereas Toeh is a Tav, an Ayin and a Hey, still there is an unmistakable association of sounds that would strike one living in an oral world. As in Exodus 23 with the obligation to return a stray animal, the word Toeh does not really translate lost so much as confused. Joseph is led from a state of confusion to one of resolution even if in the short term it seems to his detriment, as he himself says much later, “What you thought would turn out badly, God intended for good.”I can think of no clearer a statement that God’s way of looking at mankind and His plan for it, is unique and not necessarily in accordance with human thought processes. When we consult a Divine oracle it is precisely to seek a resolution that escapes us humans. The chaos of the world in its early stages, with uncertainty as to how it will develop is mirrored in the state that exists before we consult the Urim and Tumim.

The Tabernacle

The Tabernacle, the Mishkan, is another example of the Hidden and the Revealed. If God is everywhere what is the point of suggesting that He dwells in one specific place, even if that place is constantly on the move? And why is the Tabernacle divided up into three spaces, where everyone can go, where only priests can go and where only the High Priest can go? There are well known themes that several Jewish and non-Jewish commentators have pointed out relating both to the symmetry between the spaces on Noah’s Ark and the Tabernacle and more relevantly the levels on Sinai , Moses at the top, the Priests and the Elders in the Middle and the people at the foot. Mary Douglas ( Leviticus as Literature) also points out the parallel of how the animal parts of sacrifices are placed on the altar.

The importance of the curtains as indicators of Holy Space and the ‘space’ around and in the Holy of Holies signify space open and space closed, space accessible and space inaccessible. What appears to the naked human eye is superficial and not spiritual reality. The priests perform sacrifices as mediators between the people and God but priests are not always right (as in the case of Nadav and Avihu and later Eli’s family). Indeed the history of the Jewish people is proof if needed that humans no matter what their level of holy service or apparent dedication to religious ideals, consistently fail to live up to them on a personal level and equally, make the wrong decisions for the people.

The message that the Mishkan is giving seems to me to be twofold. God is indeed everywhere and nowhere specifically. This no doubt is why later the rabbis chose to use the term MAKOM, a place, everyplace, to describe God once the association with the Land had been interrupted. It is possible also why they preferred to use Ribbono Shel Olam ( Master of the Universe) and Hakadosh Baruch Hu ( the Holy One Blessed is He) precisely because of their universalism and also I should add to compensate for the exile of God and the loss of His Holy Name after the Temple was destroyed and High priests killed.

The Mishkan in the desert was also graced by the presence of the Pillar of Fire and the Pillar of Cloud. It was the visible presence, even if symbolically, of God that Moses required of God after the Golden Calf episode as the condition of his continuing to lead the people. But that presence did not guarantee that the people would respond correctly or appropriately. All the outward manifestations of God fail to achieve the desired goal.

The Mishkan symbolizes the failure of humans to understand the appropriate relationship. The same must be said for the Urim and Tumim. Anything that passes through the human mind is in danger of being distorted.

We humans seem to need and like certainty. It is I believe a natural weakness and the more complex and stressful life becomes the more we require stability and familiarity as well as needing quasi-parental security. But over time a new feature emerged to replace the Mishkan and then the Temple and that was study, derisha. Study required questioning and dialectic. Study required asking ‘Questions’ and sometimes leaving things unresolved, ‘Teyku.’

The antithesis of the human attempt to resolve uncertainty intellectually is ‘luck.’ Luck resolves, explains in ways we cannot understand and absolves us from eve trying. But that is a subject for another occasion.

Conclusion

In every aspect of Jewish thought and experience, under the overarching Unity of God, there is constructive dualism , Rational and Mystical, Priest and Prophet, God of a people and God of the Universe, Holy Land and the Globe, Holy( restricted) space and popular space, National and International, Male and Female, Human and Animal. This is most developed conceptually in the mystical idea of the Sefirot. Dualism provides options but also offers uncertainty.
The Urim and Tumim are the attempt to provide certainty in a world of Tohu VaVohu that can only be resolved by the direct relationship between Humans and God. In the early biblical period the function of the oracle was a necessary transition from the Pagan to the Monotheistic. In the end history, so to speak, decides what is effective and what is not, what remains in practice and what does not. Whereas the halachic process provides the human systemic way of progressing (Lo BaShamayim Hee, Not in Heaven ) to meet new circumstances, so history, Divine Intervention, such as the Exodus or the destruction of Jerusalem and its Temples, offers a different way forward. This explains the disappearance of Tohu VaVohu as much as the disappearance of the Urim and Tumim. Yet the narrative needs to remind us that ‘chaos’ and ‘confusion’ are indeed part of the Divinely ordained world we inhabit and trying to find certainty, predictions and forecasts instead of simply following the behavioral directions, might not be the way God wants us to live. Exploring the universe and the world of ideas is altogether a different matter. As the Mishnah in Chagigah also asserts, it may not be for everyone but it is the most legitimate way of progressing.