Min haMuvhar

Remembering Justice Benjamin Nathan Cardozo
 

by Rabbi Marc D. Angel

Benjamin Nathan Cardozo (1870-1938) was one of the greatest American jurists. During his distinguished career, he served as Chief Judge of the New York State Court of Appeals from 1926 until his appointment to the United States Supreme Court in 1932. He was known for his calm wisdom, personal dignity, and his commitment to social justice. His speeches and writings were characterized by clear thinking and graceful style.

            Cardozo was born into a Sephardic Jewish family that had roots in America since Colonial days. Among his ancestors were those who fought in the American Revolution. His family was associated with Congregation Shearith Israel, the Spanish and Portuguese Synagogue of New York, founded in 1654; he retained his loyalty to Shearith Israel throughout his life, and was buried in the congregation’s cemetery upon his death.

            As a young attorney, recently graduated from the Law School of Columbia University, Cardozo had several interactions at Shearith Israel that reflected his generally traditional worldview. In 1895, as the congregation was planning to build a new synagogue building on Central Park West, a number of leading members were calling for reforms in the synagogue’s customs. For centuries, Shearith Israel had followed the ancient traditions of Western Sephardim, including the separation of men and women during prayer services. The reformers called for various changes, including a seating arrangement in the synagogue that allowed men and women to sit together. The congregation’s religious leader, Dr. Henry Pereira Mendes, strongly opposed the reforms. Tensions within the congregation came to a head at a meeting of congregants on June 5, 1895. A number of reformers put forth their motion to institute changes; Dr. Mendes and another synagogue leader spoke in opposition to their motion. Then the 25 year old Cardozo made “a long address, impressive in ability and eloquence,” in which he argued for the continuity of synagogue tradition. He pointed out that the congregation’s constitution provided for separate seating of men and women, following in the traditional patterns of Spanish and Portuguese congregations. It would be unlawful to violate the constitution. Aside from the legal point, Cardozo stressed the importance of maintaining synagogue traditions that had been established and maintained by generations of congregants. Regardless of one’s personal opinions or level of religious observance, the synagogue is a sacred space that should maintain its integrity.  Following Cardozo’s speech, a vote was taken: the motion to alter the synagogue customs was defeated by a vote of 73 to 7!
 

            In 1898, Cardozo gave a talk at Shearith Israel on Benjamin Disraeli, late Prime Minister of the British Commonwealth. Disraeli was born into the Spanish and Portuguese Jewish community of London, but his father had his children baptized before Benjamin’s Bar Mitzvah. So he was a Jew by birth and by public perception; but was a Christian by formal religious profession. In spite of facing ongoing anti-Semitism, Disraeli rose to the top of the British government, a highly regarded confidant of Queen Victoria.

            The young Cardozo drew a thoughtful portrait of Disraeli’s personal and political life. He could not help but recognize the phenomenal rise to power of a man who was constantly subjected to anti-Semitism in spite of his having been baptized. Although Disraeli presented himself as a Christian, he never flinched from pride in his Jewish background. He described Christianity as a fulfillment of Judaism. Cardozo noted that Disraeli’s position was problematic:  “So we find it to the last—the same union of loyalty to the race and disloyalty to the faith, the same impossible effort to reconcile the irreconcilable and to treat the religious tenets of his manhood as a development of the religion in whose shelter he had been born” (Disraeli, the Jew, Essays by Benjamin Cardozo and Emma Lazarus, ed. Michael Selzer, Selzer and Selzer, Great Barrington, Mass, 1993, p.49). Cardozo noted that Disraeli—in spite of his tremendous successes—was ultimately a conflicted and lonely soul:  “The nation marveled at his wit; it laughed at his sallies; it applauded his intrepid spirit; but all the time, it must have felt within its heart that he was a stranger within its gates.”

            To his credit, Disraeli never apologized for or denied his Jewishness. Quite the contrary. He flaunted his Jewishness and presented the Jews and Judaism in positive lights. Cardozo offered an appreciation of Disraeli’s role vis a vis the Jewish people: “As we look back upon him now, we see, I think, that he affected us for good. He taught us to think worthily of ourselves—that indispensable condition, as men have often said, which must be satisfied before it can be hoped that we shall be thought worthily of by others.  He was himself, before all the world, a living illustration of the powers that are in us, of our resources, of our intellect, of our vigor; of our enthusiasm, of our diplomacy; of our finesse. … He might have stood for many other and perhaps greater things; he might have aided us in many other ways; but these he did stand for an in these he did aid us; and if the aid might have been greater, it none the less was great. It is something to have contributed a little to rousing the self-consciousness of a race, in waking it to a sense of its own dignity, and in waking others to a sense of its latent powers. In these days of Zionism, in these days of Herzl and Nordau, let us remember that we are working upon soil which Disraeli and men like him have helped posterity to till. By his own personality, as well as by his words and deeds, he seemed to weave into the woof of English public life some portion of the Hebraic spirit; to Hebraize the mid of the Protestant and the Puritan; and even to revive in his own day some glimmer of those ancient glories which it was one of the functions of his life to illustrate to the world. For that service at least, let us honor him tonight” ((pp. 65-66).

            In a series of lectures at Yale University in 1921, Cardozo reflected on the nature of the judicial process. “There is in each of us a stream of tendency, whether you choose to call it philosophy or note, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs….We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own” (The Nature of the Judicial Process, Yale University Press, New Haven, 1921, p. 12).

            Cardozo’s own “stream of tendency” included a deep respect for tradition…but a keen awareness of the forces for change. While he understood that judges must not set aside existing rules at pleasure, he also criticized “the demon of formalism.” Judges must balance their decisions, taking into consideration the welfare of society. Cardozo drew on a Talmudic teaching that describes God as offering Himself a prayer: “Be it my will that my justice be ruled by my mercy.” He suggested that judges keep this prayer in mind during their own deliberations (pp. 66-67).

            In a keenly self-revelatory comment, Cardozo reminisced on what he had learned from his experiences as a judge. “I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile….As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable” (p. 166).

            In a subsequent series of lectures at Yale, Cardozo noted that “law must be stable, and yet it cannot stand still….The victory is not for the partisans of an inflexible logic nor yet for the levelers of all rule and all precedent, but the victory is for those who shall know how to fuse these two tendencies together in adaptation to an end as yet imperfectly discerned” (The Growth of the Law,Yale University Press, New Haven, 1924, p. 143).

            Cardozo appreciated the need for balancing various tendencies—the faithfulness to precedents and the drive for change. It is not a simple matter to judge fairly and correctly. “In our worship of certainty, we must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the only good; that we can buy it at too high a price; that there is a danger in perpetual quiescence as well as in perpetual motion; and that a compromise must be found in a principle of growth” (pp. 16-17).

            Cardozo’s vast erudition was accompanied with a profound sense of social responsibility, his own personal dignity, and a calm wisdom. He was serenely confident and competent; and at the same time, he was genuinely humble and self-reflective.

            He was a proud Jew. He was moderately observant of religious rituals, although not strictly so. He expressed his views on religion on various occasions. In 1927, he spoke at a dinner in honor of the 75th birthday of his rabbi at Shearith Israel, Dr. H. P. Mendes. In praising Dr. Mendes, he underscored the values of doing justice, loving mercy and walking humbly with the Lord. That same year, Cardozo spoke at a dinner in honor of his friend, Rabbi Stephen Wise. He again stressed the role of religion as an agent of social justice. “Religion is worthless if it is not translated into conduct. Creeds are snares and hypocrisies if they are not adapted to the needs of life….Has there been some social wrong, some oppression of the people, some grinding of the poor? That is a matter for religion. Has there been cruelty to Jews abroad or to colored men at home?....That is a matter for religion. Has the sacred name of liberty, which should stand for equal opportunity for all, been made a pretext and a cover for special privileges for a few? That is a matter for religion. (quoted in Andrew L. Kaufman, Cardozo, Harvard University Press, Cambridge, 1998, p. 190).

            But religion was more than social justice. At its best, religion must be marked by a selfless idealism and commitment to transcendent ideas. In 1931, Cardozo gave the commencement address at the Jewish Institute of Religion, and referred to Tycho Brahe, the 16th century Danish astronomer, who devoted long years to mark and register the stars, when people mocked him for this seemingly useless endeavor.  “The submergence of self in the pursuit of an ideal, the readiness to spend oneself without measure, prodigally, almost ecstatically, for something intuitively apprehended as great and noble, spend oneself one knows not why—some of us like to believe that is what religion means” (Kaufman, p. 190).

                             *     *     *

            When I began serving Congregation Shearith Israel in 1969, and for many years thereafter, the rabbis’ gowning room was the old office of the late Rabbi Dr. David de Sola Pool. Several photographs hung on the walls, including one of Justice Benjamin Nathan Cardozo which he presented to the Congregation in 1932 upon being appointed to the United States Supreme Court. He inscribed it: “To the historic Congregation Shearith Israel in the City of New York, with the affectionate greetings of its member.”   

            Thus, every morning and evening before synagogue services, I was greeted by the handsome visage of Justice Cardozo. Although he died before I was even born, so that I did not know him personally, I somehow felt a friendship and kinship with him. He was, for me, an entry way into the past of my congregation and community. His photograph conveyed the confidence and the judgment, challenging us to be faithful to the past and yet open to the needs of the present…and future.      

References:

Cardozo, Benjamin N., The Growth of the Law, Yale University Press, New Haven, 1924.

__________________, The Nature of the Judicial Process, Yale University Press, New Haven, 1921.

Kaufman, Andrew L., Cardozo, Harvard University Press, Cambridge, 1998.

Selzer, Michael, Disraeli, the Jew, Selzer and Selzer, Great Barrington, 1993.

(On September 12, 2004, a special service was held at Congregation Shearith Israel in New York (founded in 1654)  to mark the Congregation's 350th anniversary. Since Shearith Israel is the first Jewish Congregation in North America, this occasion also marked the 350th anniversary of American Jewry. Rabbi Marc D. Angel delivered a sermon at the 350th anniversary service, reflecting on American Jewish history through the prism of the experience of Congregation Shearith Israel. This is an abridged version of that sermon.)

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights,that among these are Life, Liberty, and the pursuit of Happiness.” These words from the American Declaration of Independence reflect the deepest ideals and aspirations of the American people. America is not merely a country, vast and powerful; America is an idea, a vision of life as it could be.

When these words were first proclaimed on July 4, 1776, Congregation Shearith Israel was almost 122 years old. It was a venerable community, with an impressive history--a bastion of Jewish faith and tradition,and an integral part of the American experience.

When the British invaded New York in 1776, a large group of congregants, including our Hazan Rev. Gershom Mendes Seixas,left the city rather than live under British rule. Many joined the Revolutionary army and fought for American independence. Our story in America is not built on historical abstractions, but on generations of Jews who have played their roles in the unfolding of this nation. It is a very personal history, ingrained in our collective memory.

On this 350th anniversary of the American Jewish community,we reflect on the courage and heroic efforts of our forebears who have maintained Judaism as a vibrant and living force in our lives. We express gratitude to America for having given us—and all citizens—the freedom to practice our faith. This very freedom has energized and strengthened America.

Within Congregation Shearith Israel, we have been blessed with men and women who have helped articulate Jewish ideals and American ideals. Their voices have blended in with the voices of fellow Americans of various religions and races,to help shape the dream and reality of America.

The American Declaration of Independence pronounced that all men are created equal. In his famous letter to the Jewish community of Newport, in August 1790, President George Washington hailed the United States for allowing its citizens freedom—not as a favor bestowed by one group on another—but in recognition of the inherent natural rights of all human beings. This country, wrote President Washington, “gives to bigotry no sanction, to persecution no assistance.”

And yet, if equality and human dignity are at the core of American ideals, the fulfillment of these ideals have required—and still require—sacrifice and devotion. Reality has not always kept up with the ideals. In 1855, Shearith Israel member Uriah Phillips Levy—who rose to the rank of Commodore in the U.S. Navy—was dropped from the Navy’s active duty list. He was convinced that anti-Semitism was at the root of this demotion. He appealed the ruling and demanded justice.He asked: are people “now to learn to their sorrow and dismay that we too have sunk into the mire of religious intolerance and bigotry?... What is my case today, if you yield to this injustice, may tomorrow be that of the Roman Catholic or the Unitarian, the Presbyterian or the Methodist, the Episcopalian or the Baptist. There is but one safeguard: that is to be found in an honest,whole-hearted, inflexible support of the wise, the just, the impartial guarantee of the Constitution.” Levy won his case. He helped the United States remain true to its principles.

Shearith Israel member Moses Judah (1735-1822) believed that all men were created equal—including black men. In 1799, he was elected to the New York Society for Promoting the Manumission of Slaves. During his tenure on the standing committee between 1806 and 1809, about fifty slaves were freed.Through his efforts, many other slaves achieved freedom. He exerted himself to fight injustice, to expand the American ideals of freedom and equality regardless of race or religion.

Another of our members, Maud Nathan, believed that all men were created equal—but so were all women created equal. She was a fiery, internationally renowned suffragette, who worked tirelessly to advance a vision of America that indeed recognized the equality of all its citizens—men and women. As President of the Consumers’ League of New York from 1897-1917, Maud Nathan was a pioneer in social activism, working for the improvement of working conditions of employees in New York’s department stores. Equality and human dignity were the rights of all Americans,rich and poor, men and women.

The Declaration of Independence proclaimed that human beings have unalienable rights, among them are life, liberty and the pursuit of happiness.These words express the hope and optimism of America. They are a repudiation of the tyranny and oppression that prevailed—and still prevail—in so many lands. America is a land of opportunity, where people can live in freedom. The pursuit of happiness really signifies the pursuit of self-fulfillment, of a meaningful way of life. America’s challenge was—and still is—to create a harmonious society that allows us to fulfill our potentials.

President George Washington declared a day of national Thanksgiving for November 26, 1789. Shearith Israel held a service, at which Hazan Gershom Mendes Seixas called on this congregation “to unite, with cheerfulness and uprightness…to promote that which has a tendency to the public good.” Hazzan Seixas believed that Jews, in being faithful to Jewish tradition, would be constructive and active participants in American society.

Life, liberty and the pursuit of happiness were not reserved only for those born in America; they are the rights of all human beings everywhere. This notion underlies the idealism of the American dream, calling for a sense of responsibility for all suffering people, whether at home or abroad. American Jews have been particularly sensitive and responsive to this ideal.

On March 8,1847, Hazan Jacques Judah Lyons addressed a gathering at Shearith Israel for the purpose of raising funds for Irish famine relief. The potato crop in Ireland had failed in 1846, resulting in widespread famine. Hazan Lyons well realized that the Jewish community needed charitable dollars for its own internal needs; and yet he insisted that Jews reach out and help the people of Ireland. He said that there was one indestructible and all-powerful link between us and the Irish sufferers: “That link, my brethren,is HUMANITY! Its appeal to the heart surmounts every obstacle. Clime, color, sect are barriers which impede not its progress thither.” In assisting with Irish famine relief, the Jewish community reflected its commitment to the well-being of all suffering human beings.American Jewry grew into—and has continued to be—a great philanthropic community perhaps unmatched in history. Never have so few given so much to so many. In this, we have been true to our Jewish tradition, and true to the spirit of America.

Who articulated the hope and promise of America more eloquently than Emma Lazarus? “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me. I lift my lamp beside the golden door.” How appropriate it is that her poem is affixed to the great symbol of American freedom, the Statue of Liberty.

Alice Menken, (for many years President of our Sisterhood) did remarkable work to help immigrants, to assist young women who ran into trouble with the law, to promote reform of the American prison system. She wrote: “We must seek a balanced philosophy of life. We must live to make the world worth living in, with new ideals, less suffering, and more joy.”

Americans see ourselves as one nation, indivisible, under God, with liberty and justice for all. Yet, liberty and justice are not automatically attained. They have required—and still require—wisdom, vigilance, and active participation. America prides itself on being a nation of laws, with no one above the law. The American legal tradition has been enriched by the insights and the work of many American Jews.

In one of his essays, Justice Benjamin Nathan Cardozo—a devoted member of Shearith Israel--referred to a Talmudic passage which has been incorporated into our prayer book. It asks that the Almighty let His mercy prevail over strict justice. Justice Cardozo reminded us that the American system relies not only on justice—but on mercy. Mercy entails not merely an understanding of laws, but an understanding of the human predicament, of human nature, of the circumstances prevailing inhuman society. Another of our members,Federal Judge William Herlands, echoed this sentiment when he stated that Justice without Mercy—is just ice!

Our late rabbis Henry Pereira Mendes, David de Sola Pool and Louis C.Gerstein, were singularly devoted to social welfare, to religious education, to the land of Israel. They distinguished themselves for their devotion to Zionism, and played their parts in the remarkable unfolding of the State of Israel. They, along with so many American Jews, have keenly understood how much unites Israel and the United States—two beacons of democracy and idealism in a very troubled world.

During the past 350 years, the American Jewish community has accomplished much and contributed valiantly to all aspects of American life. We have cherished our participation in American life. We have been free to practice our faith and teach our Torah. We have worked with Americans of other faiths and traditions to mold a better,stronger, more idealistic nation.

America today is not just a powerful and vast country. It is also an idea, a compelling idea that has a message for all people in all lands. As American Jews, we are committed to the ideals of freedom and equality, human dignity and security, to life, liberty and the pursuit of happiness, the pursuit of harmony among ourselves and throughout the world. We have come far as a nation, but very much remains to be done. May God give us the strength and resolve to carry on, to work proudly as Jews to bring the American dream to many more generations of humanity.

The Torah provides a framework for sexual morality. Its legal prescriptions specify forbidden relationships; its narratives describe behavior and dress that reflect attitudes relating to sexuality and modesty.

The Torah’s view of sexual relationships might best be seen as fulfilling the overarching command that we be a holy people (vaYikra 19:2). Indeed, Rashi, in his commentary on this verse, identifies holiness with separation from forbidden sexual relationships.
However, the Torah does not enumerate rules relating to modesty in thought, dress, and speech. For example, it does not state how much of a person’s body needs to be covered, and gives no measurements for sleeve lengths or skirt sizes. Nor does it present specific rules relating to “hirhurim”—erotic thoughts; nor to “mehitsot” separating men and women at public gatherings; nor to the general—non-sexual—interrelationships of men and women. Rather, these rules are inferred from the mandate to be holy—to separate ourselves from sin, including sin of a sexual nature.

The Philosophy of Tseniut

The Talmud and later rabbinic literature provide additional material relating to sexual conduct in general, and tseniut (modesty) in particular. An aim of tseniut is to diminish the possibility of improper sexual temptations that could lead to sinful behavior. The human sexual drive is quite powerful, and the tseniut laws are intended to keep that drive under control.

Tseniut, though, is not simply a system of prevention from sin. Rather, it encompasses a positive philosophy relating to the nature of human beings. While acknowledging the power of human sexuality, tseniut teaches that human beings are more than mere sexual beings.

In his famous book, I and Thou, the philosopher Martin Buber pointed out that ideal human relationships involve mutual knowledge and respect, where people treat themselves and others as valuable persons—not as things. Tseniut, in fact, seeks to foster the highest form of I-Thou relationship. By insisting on modest dress and behavior, the laws of tseniut promote a framework for human relationships that transcends the physical/sexual aspects.

Non-tseniut behavior signals a person’s desire to be seen as an object of sexual attraction. People who dress in a sexually provocative way are interested in being noticed, in exciting the sexual interest of others. When people dress provocatively, what they are communicating is: notice me, I crave your attention, please don’t ignore me. Underlying this non-vocalized plea is the feeling that one will not be noticed unless he/she is prepared to become an object of attention or unless he/she conforms to the prevailing fashions, even if those fashions violate one’s sense of decency and propriety.1

It is normal and natural for people to want to appear pleasing to others. That is why they spend so much time and money on clothing and grooming. If one dresses nicely, neatly, and modestly, one may take pride and satisfaction in his/her appearance. If, though, one specifically dresses or behaves in a manner that is aimed at arousing sexual attention, then he/she has crossed into the non-tseniut mode. One has chosen to be an object a thing,rather than a Thou.

Why would people willingly dress or act in a manner as to make themselves into objects? The answer is that they want to be noticed, admired, longed for. They think that by presenting themselves as objects, they will more likely achieve these goals. They demand less of themselves and of others; no commitment or serious dialogue is invited or expected.

Human beings all have feelings of insecurity; we need to be needed, appreciated, and loved. Although these tendencies are often exacerbated in teenagers, they continue to exist throughout adult life. Exhibitionism is a short-cut to gaining the attention—and hopefully the affection—of others. Yet, underneath the veneer of showiness is a layer of essential insecurity, loneliness, and dissatisfaction with self. Exhibitionism may gain the attention of others, but it does not gain their respect and love.

Dr. Norman Lamm has written: “One who lacks the sense of inner dignity and worth will expose himself [or herself], as if to say, ‘Look at me. Am I not beautiful? Am I not smart? Do you not like me?’ The lack of inner dignity leads to exhibitionism, the opposite of modesty, whereas a sense of inner dignity will normally result in the practice of modesty.”2

Tseniut, then, should be understood as a framework for maintaining our human dignity. It teaches us to treat ourselves and others as valuable human beings, not as objects. Non-tseniut behavior and dress serve to diminish our full humanity, reducing us to the level of objects of sexuality. Tseniut is a manifestation of holiness. Exhibitionism is a manifestation of crudeness and feelings of insecurity.

The Technicalities of Tseniut

It is important for us to understand the underlying assumptions of the ancient and medieval halakhic sources. The early rabbinic opinions on the topic of tseniut emerged from a context where women—Jewish and non-Jewish—were deemed to be subservient to men. The operative principle was that the honor of a princess, i.e. a dignified woman, is for her to remain in private. Women were to stay home to the extent possible. When they appeared in public, they were to be dressed in such a way as not to attract the attention of men. Women generally were not given the same educational opportunities as men, nor were they encouraged or generally allowed to participate in public life or to have authority over men. Women’s role was to care for the household, have children, and maintain piety and modesty.

Classic rabbinic literature assumes that women are primarily a source of sexual temptation to men, and that women should therefore dress and conduct themselves so as not to arouse men’s passions. Discussions of the laws of tseniut often tend to focus on specific details of what constitutes modest and immodest dress and behavior. Rabbi Yehuda Henkin, in his book Understanding Tzniut, cites talmudic and later rabbinic sources dealing with such issues as what parts of a woman’s body constitute nakedness; how much of a woman’s body needs to be covered; the ervah (nakedness) of a woman’s leg, voice, and hair. He also discusses sociological conditions that may impact on the boundaries of modesty.3

The discussion in Berakhot 24a is reflective of the prevailing talmudic attitude:

Rabbi Yitzhak said: An [uncovered] tefah (hand’s breadth) in a woman is nakedness (ervah)….Did not Rabbi Shesheth say that anyone [i.e. any man] who gazes even at a woman’s little finger is as though he gazes at her private parts?... Rabbi Hisda said a woman’s leg (shok) is ervah… Shemuel said that a woman’s voice is ervah…. Rabbi Shesheth said a woman’s hair is ervah.4

This passage, and others of the same tenor, operate with the following tacit assumption. Because women’s body, hair, and voice are so alluring to men, women are to cover themselves up to the extent possible, and are not to use their voices in a way that might arouse men. Halakhic literature contains various opinions as to how to apply the tseniut rulings—but by and large, the general assumptions outlined above are taken for granted.

Yet, let us delve a bit more carefully into these assumptions.

1. Women today are no longer relegated to the home, but are involved in all aspects of society. Women interact regularly, and in many contexts, with men; women often hold positions of responsibility, including having authority over men. Few today would agree with the notion that the honor of a woman is to remain in the privacy of her home. Few today would agree that women are or must be subservient to men.

2. If we are concerned lest men be erotically aroused by women’s body, hair, and voice, shouldn’t we also be concerned lest women be erotically aroused by men’s body, hair, and voice? Although halakhic sources spell out in detail the various restrictions on the manner of women’s dress and behavior, there is very little relating to men’s dress and behavior. The assumption is that men are far more passionate and uncontrollable than women. Whether or not this assumption is correct, it is surely not correct to assume that women lack strong sexual feelings for men. They are subject to erotic arousal by men’s manner of dress and behavior. Thus, all discussions of tseniut should deal with both sides of the equation, not just with women’s mode of dress and behavior.

3. If the rules of tseniut are to protect men from falling into sexual sin, why are most of the restrictions placed on women? The rules could have been formulated in an entirely different way. Since men are so passionate and women are so arousing, then men should cover their eyes in the presence of women and should avoid public places where women might be seen. If men have the problem, why should women be forced to pay the price for men’s weaknesses? Let the women conduct themselves as they wish, and let men guard themselves from falling prey to temptation!

The Philosophy of Tseniut and Its Technicalities

The philosophy of tseniut teaches self-respect, respect for others, and the importance of not treating oneself or others as objects. The goal of tseniut is to maintain human dignity, and to foster respectful and meaningful human relationships.

The technicalities of tseniut should aim at fulfilling the ideals of the philosophy of tseniut. In popular discussions of the subject, though, there often is a serious disconnect between philosophy and technicalities. Here are a few items that underscore the gap between the concept of tseniut and the technical halakhic rules that are supposed to foster tseniut.

1. “Women’s hair is considered ervah, nakedness.” Normative halakha applies this statement only to married women. Single women need not cover their hair, since men are used to seeing them with uncovered hair and will not be aroused. Is this a valid argument? In olden times when girls were married off at an early age, this assumption may have held true. Seeing girls up to the age of early teens with uncovered hair may have been a normal feature of life, not generating untoward thoughts on the part of men. Yet, today most women do not get married while they are still children. If a woman in her 20s or 30s has her hair uncovered, what difference would it make to men whether she is single or married? Most men would not be able to tell whether such a woman is single or married. Yet, halakha allows the single woman to go bare-headed, while a married woman must cover her hair. If the purpose of head covering is to foster tseniut and to prevent men from looking at women’s “nakedness,” then there is no substantial reason today to differentiate between married and single women. Either all women of marriageable age should cover their hair, or none of them need cover their hair because men are accustomed to seeing women with uncovered hair.5 Indeed, Rabbi Yosef Mesas rules that married women need not cover their hair in our days, since the normal practice of women in our society is to go with hair uncovered.6 He wrote: “Since in our time all the women of the world have voided the previous practice and have returned to the simple practice of uncovering their hair, and there is nothing in this that constitutes brazenness or lack of modesty…therefore the prohibition of covering one’s hair has been lifted.”

2. “Women’s hair is considered ervah.” Yet various posekim allow women to cover their own natural hair with a wig. As long as they have fulfilled the technicality of covering their hair, they are not in violation of halakha. In some circles, it is expected that married women wear wigs; if they do not do so, they are considered to be religiously deficient. Does this make any sense? Women will spend thousands of dollars to buy wigs that often look better than their own hair. They will wear these wigs, which can be quite attractive, and be considered to be within the laws of tseniut. However, if a woman “wears” her own hair, in a modest fashion, such a woman is deemed (by many) to be in violation of halakha. If a woman’s hair is indeed nakedness, how can it possibly be permitted for them to wear wigs—also made of hair? Would anyone suggest that a woman is permitted to wear a skin-colored dress that is printed with the design of her private body parts? Of course not. Such clothing is obviously anti-tseniut. Likewise, if a woman’s hair is nakedness, covering it with a wig is anti-tseniut.

3. “A woman’s voice is ervah.” This is generally applied to her singing voice, not to her usual speaking voice. But there are strong halakhic sources that permit men to hear women singing religious songs, or lullabies to their children, or other songs that have no erotic intent or content.7 When the prohibition of “kol ishah” is applied to all instances of women singing in the presence of men, this is a distortion of the intent of the halakha. The prohibition forbids licentiousness. Moreover, it should be applied not only to men hearing lewd songs sung by women, but also to women hearing lewd songs sung by men. The concept of “kol ish” is just as valid and just as important as “kol ishah.” If men sing in a manner that is sexually provocative to women, this constitutes a breach in tseniut and a breach in holiness.

4. “An uncovered tefah of a woman is nakedness.” Surely, it will be agreed that it is proper for women to cover the parts of their bodies that are particularly arousing to men. It should be equally agreed that men be required to cover parts of their bodies that are particularly arousing to women. But the real issue is not how long skirts and sleeves must be, nor how buttoned up a man’s shirt should be. Rather, the question is: What constitutes sexually provocative dress that is forbidden by the philosophy and rules of tseniut? A person might be covered from head to toe, and yet the clothing may be too tight, too clingy, too enticing. A person’s clothing might be entirely within the rules of tseniut, yet the person may use seductive gestures, facial expressions, or body movements. In many cases, an uncovered tefah of a woman (or a man) is not sexually arousing at all; rather it may be repulsive, an example of very bad taste. Likewise when people wear clothing that is too tight or too revealing. These are violations of tseniut, not because they are sexually arousing, but because they compromise one’s dignity—even if one does not want to realize this. They reflect a person’s conscious or subconscious desire to be seen as an object, rather than as a dignified person.

Confronting Reality

A number of tseniut rules in classic halakhic literature have come into conflict with changing societal realities. These rules have been modified or dropped by large groups of Torah-observant Jews. Here are a few examples.

1. …Our sages commanded that a man must not teach his daughter Torah, since the intelligence of the majority of women is not geared to be instructed; rather, they reduce the words of Torah to matters of foolishness according to the poverty of their understanding. Our sages said: One who teaches his daughter Torah is as though he taught her foolishness. To what does this refer? To the Oral Torah; but as concerns the Written Torah, he should not teach her; but if he did teach her it is not as though he taught her foolishness. (Rambam, Hilkhot Talmud Torah 1:13)

Despite Rambam’s ruling, in many Orthodox schools today, girls/women do study Talmud. Indeed, Stern College for Women of Yeshiva University has an advanced program of Talmudic Studies for women, instituted with the blessing of Rabbi Joseph B. Soloveitchik. Programs for women who wish to pursue advanced study of Talmud and halakha have blossomed in the United States and Israel. Modern Orthodox institutions reject the assumption that women‘s intelligence is unfit to absorb the wisdom of Talmud. Moreover, even if Hareidi schools do not teach girls/women Talmud, they do teach the Written Torah—in spite of Rambam’s ruling not to do so.

2. It is unseemly for a woman constantly to be going abroad and in the streets, and the husband should prevent his wife from this. He should not let her leave [home] except once or twice per month, according to the need. There is no beauty for a woman except in dwelling in the corner of her home, for so it is written, “All the glory of the king’s daughter is within (Psalm 45:14)” (Rambam, Hilkhot Ishut 13:11).

Very few, if any, Orthodox communities today follow this halakha of the Rambam. Very few, if any, accept the notion that a woman should live most of her life in the confines of her own home.

3. An unmarried man may not teach children because of the mothers who bring their children [and we fear possible immoral thoughts or conduct between teacher and the children’s mothers]… A woman may not teach children because of the fathers who bring their children [and we fear possible immoral thoughts or conduct between teacher and the children’s fathers]. (Shulhan Arukh, Yoreh Deah, 245:20–21).

Few, if any, Orthodox schools follow this halakha. It is quite common for single men to teach in Day Schools and yeshivot. It is also quite prevalent for women to teach in Day Schools and yeshivot. Indeed, Hareidi girls’ schools tend to encourage students to become teachers.

4. A man must distance himself from women very very much…It is forbidden to look at her beauty and even to smell perfume that is on her…It is forbidden to look at colorful clothes of a woman with whom he is acquainted, even when she isn’t wearing [these clothes], lest this lead him to think about her. If a man comes across a woman in the marketplace, it is forbidden for him to walk behind her; rather he should run so as to divert her to his side or behind him… One who looks even at a woman’s little finger with the intention of deriving pleasure from this, it is as though he looked at her private parts. It is forbidden to hear an ervah voice or look at her hair. One who intends to do any one of these things is subject to lashes [makatmardut]…. (Shulhan Arukh, Even haEzer 21:4).

In discussing the ruling that a man must run from a woman if he meets her in the market place, Rabbi Haim David Halevy asserted that this law refers to former times when women generally stayed home and were not often found walking in public. But in our day, many women walk in the public thoroughfares and marketplaces. If a man ran away every time he found a woman in front of him, people would think he was a fool. In his seeming piety, he would actually subject religion to ridicule in the eyes of the public. Rabbi Halevy concluded that a man who found himself walking behind a woman should simply try to keep his eyes from looking at her.8

The above examples demonstrate that there is a disconnect between various technical halakhot relating to tseniut, and the reality of the societal conditions in which we live. As a result, these halakhot—and others like them—have been generally modified or discarded among Torah-observant Jews. Sometimes apologetic explanations have been given and sometimes not.

Tseniut Today

We need to return to the underlying philosophy of tseniut: the expectation that we be holy, that we live dignified lives, that we not present ourselves as sexual objects. How these aims are actually fulfilled very much depends on the societal conditions in which we live. In ancient and medieval times, when women lived highly restricted lives, the rules of tseniut were applied accordingly. In our times, when women function openly and freely in society, the rules of tseniut also must be applied with this reality in mind.
The following are some proposed applications of the rules of tseniut in our modern societies:

1. Neither men nor women should dress, speak, or act in a licentious manner that will arouse the sexual attention of others. It is a violation of tseniut to wear skimpy, overly tight, or other clothing that is designed to highlight one’s sexuality.

2. It is proper for men and women to dress nicely, neatly, and modestly. It is fine to dress fashionably, as long as those fashions do not violate the philosophy of tseniut.

3. In our society, it is normal for upstanding and proper women to wear pants/pants suits; short sleeved dresses/blouses; clothes with colorful designs. Wearing these things is not a violation of tseniut, as long as these items are not fashioned in such a way as to highlight one’s sexuality.

4. Married women need not cover their hair, as long as their hair is maintained in a modest style. The wearing of wigs does not constitute a proper hair-covering for those married women who wish to cover their hair. Rather, such women should wear hats or other head coverings that actually cover their hair.

5. Men and women may sing in the presence of those of the other gender, as long as the songs are of a religious nature, or of a general cultural nature (e.g. opera, folk songs, lullabies). People should neither sing nor listen to songs that have vulgar language or erotic content that will lead to improper thoughts or behavior.

6. If a person dresses, speaks, and acts in a proper, dignified manner, it is not his/her responsibility if others are sexually aroused by him/her. That is their problem. It is their responsibility to control their thoughts and emotions, and/or to remove themselves from situations that they find to be sexually provocative.

7. Normal interactions between men and women are a feature of our societies. Women may serve in positions of authority over men, just as men may serve in positions of authority over women.9 The key point is this: holiness and tseniut should characterize all contexts where men and women mingle and work together. Co-ed youth groups and schools are permitted, but must be maintained with high standards of tseniut.10

Conclusion

Rabbi Avraham Shammah, who teaches at the Herzog Teachers’ College in Israel, stated: “Women and men should behave in a manner that reflects great respect for one another; they should not consider one another in a crude manner such as sexual objects; they should not dress provocatively, nor should their body language be provocative….”11 This is a fine formulation of the guidelines of tseniut.

It makes little sense to pretend that our living conditions today are identical to those of antiquity and the middle ages. Women’s roles in society have changed radically. The interrelationships of men and women today are far more common and far more frequent than in former times. Fashions have changed dramatically. Definitions of brazenness and immodesty are far different today than they were in olden days. Recognizing these changes is essential to formulating a proper application of tseniut rules.

It must also be recognized, though, that modern-day fashions often reflect very non-tseniut standards. Clothing that is designed to be sexually provocative—low cut in front or back, dresses or skirts above knee-length, clothing that is too tight, men’s pants that are worn below the belt line, and so forth—are clearly in violation of the philosophy and rules of tseniut.

Our goal as thinking halakhic Jews is to be clear on our responsibility to be holy, and to treat ourselves and others as fellow human beings—not as sexual objects. When we live as tseniut human beings, we enhance our own dignity and the dignity we show to others. This is not an inconsiderable accomplishment.

Notes

1. See my book, Losing the Rat Race, Winning at Life, Urim Publications, Jerusalem, 2005, especially chapter 4.
2. Norman Lamm, “Tseniut: A Universal Concept,” in Haham Gaon Memorial Volume, ed. M.D. Angel, Sephardic House and Sepher Hermon Press, New York, 1997, p. 155.
3. Yehuda Henkin, Understanding Tzniut, Urim Publications, Jerusalem, 2008.
4. I am not going into the discussion about improperly seeing or hearing women during one’s recitation of the Shema, nor distinctions between seeing or hearing one’s wife or other women.
5. See Rabbi Henkin’s discussion of hair-covering for women, pp. 29f; and article by Michael Broyde, “Hair Covering and Jewish Law,” Tradition, Fall 2009, 42:3, pp.97-179. It is understood that married women must adhere to a higher standard of tseniut than single women, since married women are subject to the laws of adultery for illicit relations. Nonetheless, both married and unmarried women are bound by the rules of tseniut and obviously are not allowed to comport themselves in a way that will entice improper thoughts or deeds on the part of men who see them.
6. Rabbi Yosef Mesas, Mayyim Hayyim, vol. 2, no. 110.
7. For a discussion of sources relating to kol isha, see Saul Berman, “Kol Isha,” in Rabbi Joseph H. Lookstein Memorial Volume, ed. Leo Landman, Ktav Publishing House, New York, 1980, pp. 45–66; and the responsum of Rabbi David Bigman, “A New Analysis of Kol B’Isha Erva,” in the Responsa section of jewishideas.org. Michael Makovi collected many sources on the topic in his article “A New Hearing for Kol Ishah,” in the Articles section of jewishideas.org
8. H. D. Halevy, Mayyim Hayyim 2:45.
9. See Benzion Uziel, Piskei Uziel, Jerusalem, Mossad HaRav Kook, 5737, no. 44, where Rabbi Uziel argues that women may vote in elections, and may be elected to public office where they have authority over men.
10. See the excellent pamphlet by Rabbi Yuval Cherlow and Ron Hori, Hevra Sheleimah: Hevrah Tsenuah Me’orevet leKhathila,” published by Neemanei Torah vaAvodah and HaKibbutz HaDati, Tel Aviv, 2011.
Rabbi Shammah’s paper was originally published in Hebrew and can be found at http://www.kolech.org.il/show.asp?id=25484. It was published in English in the bulletin of JOFA.

(This essay by Rabbi Marc D. Angel was published in the Jerusalem Post, December 12, 2025.)

With their military victory over the Hellenistic Syrians, the Maccabees entered the Temple in Jerusalem and rededicated it to the worship of God. According to Jewish tradition, they found one jar of pure oil with enough to last for one day. They lit the Menorah and the oil miraculously burnt for eight days, enough time to produce a new batch of pure oil.

When we tell this story year after year, we tend to imagine that the Maccabees found the beautiful gold Menorah of the Temple in its place, and they simply added the pure oil to it.

Yet, this would be truly remarkable. The Syrians had control of the Temple for a long stretch of time and they surely would have plundered all the valuable items within it. It would have been very unlikely for them to have left an impressive gold candelabrum in its place.

A midrash suggests that when the Maccabees entered the Temple, they indeed did not find the Menorah there. It had already been stolen by the enemies of the Jews. So the Maccabees improvised by putting together a make-shift Menorah made of spears. The midrash (Pesikta Rabbati 2:1) surmises that the spears had been left behind by the Syrian soldiers who fled in haste during their defeat.

So the Menorah of the original Hanukkah was made of the spears of our enemies!

This midrash is teaching a profound lesson. The very weapons with which our enemies sought to destroy us—those very weapons were used to spread the light of Judaism! The Maccabees were demonstrating that their victory was not merely successful in a military sense. Rather, it was also—and pre-eminently—a spiritual victory. The enemy’s spears were transformed into branches of the Menorah, bringing light into the Temple, restoring worship of the One true God.

The Haftarah that we read on Shabbat Hanukkah includes the famous words of the prophet Zechariah: “Not by might nor by power, but by My spirit said the Lord of hosts” (Zechariah 4:6).

Not by spears, not by guns, not by missiles, not by terrorism, not by political intimidation: these weapons of our enemies will not prevail. We will transform their weapons into sources of light and peace. We will create a Menorah of righteousness that will inspire the world to a loftier and more spiritual vision.

To quote from the Passover Haggadah, “in each generation they arise to destroy us and the Almighty saves us from their hands.” The Jews seem always to have been the conscience of the nations—and many people do not like a conscience, especially a guilty conscience. They attack us because they are afraid of what we symbolize: a nation dedicated to One God, to an elevated morality, to social justice.

But the ongoing flourishing of Jews and Judaism is our unflinching testimony that the spirit of God will ultimately prevail among humanity. The spears of enmity and warfare will one day be transformed into branches of a Menorah, bringing light and hope to all human beings. May it be soon and in our days!

Haham Solomon Gaon passed away on 19 Tevet 5755 (December 22, 1994). During the course of his lifetime, he impacted on many thousands of people. He served for many years as the Haham of the Spanish and Portuguese community in London; and was the founder and director of the Sephardic Studies Program at Yeshiva University in New York.

As one of Haham Gaon’s first students at Yeshiva University in 1963, I want to share a few thoughts about a man who was not merely a teacher, but a mentor and friend. Had I not studied with Haham Gaon, I almost surely would not have become a rabbi; had he not been a constant guide and friend, I almost surely would not have had a rabbinic career spanning five decades.

Solomon Gaon was born in Travnik, Yugoslavia in 1912 and studied at the yeshiva in Sarajevo. Both his parents died in the Holocaust. He received his rabbinic ordination from Jews' College in London. In 1949 he became Haham (Chief Rabbi) of the Sephardic congregations of the British Commonwealth. With Alan Mocatta, he is credited with revivifying a declining community. Beginning in 1963 he became involved (initially on a part-time basis) with Yeshiva University in New York, and was integral in the founding of its Sephardic Studies Program. While in New York, Haham Gaon was closely identified with Congregation Shearith Israel where he attended services regularly.

Haham Gaon had an uncanny understanding of human nature. He seemed to know what was on your mind without your ever having to tell him. He was one of those rare rabbis and teachers who actually cared about others with a fullness of concern. He held impressive titles and received many honors; but he was among the humblest people I have ever known. Whatever he achieved was not directed at self-glory, but was for the glory of God. He spoke to all people with respect and kindness. He was as non-judgmental a rabbi as I have ever met. His motivating emotion was love; his compassion and empathy seemed to know no bounds.

Haham Gaon seemed to have boundless energy. He traveled extensively; he visited many Sephardic communities around the world. He spoke at many conferences and scholarly gatherings. As busy as he was, he always seemed to have time for family, friends, and students. He and Mrs. Gaon were gracious hosts; they enjoyed being with people, sharing happy times.

Haham Gaon had a lively sense of humor. He also had gravitas. He knew how to carry himself with great dignity while still not becoming aloof.

Haham Gaon, like the classic rabbis of Sephardic tradition, placed great emphasis on prayer. He seemed to have a remarkable spiritual intimacy with the Almighty. When Haham Gaon prayed, all of us in his presence felt an extra spiritual energy in the room.

In an article I wrote on Sephardic models of rabbinic leadership, I referred to Haham Gaon: “As a young rabbi, I learned much from my teacher Haham Solomon Gaon, with whom I studied at Yeshiva University, and to whom I turned for guidance for many years thereafter. I once complained to Haham Gaon that I was called upon by various organizations and committees to attend their events and meetings. I felt I should be exempt from these communal responsibilities, so that I could devote more time to my studies. I thought the Haham would support my request. Instead, he gently rebuked me. He said: the people who devote their time and effort on behalf of the community need to know that the rabbi is with them. They need to see the rabbi, to hear the rabbi’s suggestions, to know that the rabbi appreciates and participates in their work. Yes, you need time to study; but you also need to devote time to working with members of the community. Haham Gaon was a Haver ha-Ir, a friend of the community.”

I went on to write that the classic Sephardic rabbinic model personified by Haham Gaon has been on the decline. “For a variety of sociological and psychological reasons, there has been a sea change in Orthodox rabbinic leadership in general—and an even more profound change in Sephardic rabbinic leadership. The upsurge in the influence of extreme Hareidi religious authorities has dragged much of Orthodoxy to the right.”

Haham Gaon represented a balanced religiosity, deeply faithful to tradition while deeply sensitive to the needs and feelings of modern men and women. Haham Gaon was a model of dignity, compassion, and total commitment to the People of Israel and the State of Israel. He did not attempt to validate his religiosity by adopting “Hareidi” style rabbinic garb; on the contrary, as a proud Sephardic rabbi, he refused to compromise his own traditions in order to curry favor among others. He respected Ashkenazic rabbis who were faithful to their traditions, and he expected them to be respectful of his traditions.

As we mark the anniversary of the passing of Haham Gaon, we may well also be marking the end of an era of Sephardic rabbinic leadership. The broadness of vision, tolerance, spirituality and humanism of the Sephardic rabbinic tradition is on the brink of extinction. At the very moment when the Jewish world needs exactly this kind of spiritual leadership, we miss Haham more than ever.

Haham Gaon was an optimist. He believed that the tradition he embodied would be a source of strength to the Jewish People in the generations to come. Those of us who were his students and friends must also be optimists. We must be worthy heirs to the spiritual legacy he has left us.