[Avodah] partnership minyanim

[Chana Luntz]

RMS writes:

>As someone with a day (and night..) job, I haven't had time for a full
response. I have started the following, and appreciate comments.

>As someone who has known Rabbi Freundel for many years, and is appreciative
of his contributions to the community, I am troubled by his analysis. While
>there are legitimate halachic issues to be raised, I think most of his
sources are actually irrelevant to the argument -- and would not be taken
>seriously in other contexts. Rav Freundel is too good of a scholar for
this.

I have no acquaintance with Rabbi Freundel, and my first introduction to him
has been the various articles that he has published on Hirhurrim in the last
couple of weeks.  However I agree with RMS here that there are some
extremely odd (not to say worrying) aspects of the Torah being presented.  I
too, do not have the time to even begin to discuss all the matters raised by
these articles that I think need further response and comment, but taking up
a little RMS's gauntlet, I will discuss two more below, the first that RMS
raised and the second that he hasn't.

For the first, the Meiri.  RMS quotes from the latest missive of Rav
Freundel:

>For at least the 7th or 8th time in my article and in these posts the Meiri
says a) that a male child may get an aliyah b) but may not lead services AT
>ALL.

I have posted some comments on this on Meiri on Thursday and Friday - but
the nature of these small boxes on line in which one has the opportunity to
post comments do not lend themselves to anything approaching a detailed
halachic analysis (or even much proofreading), and certainly does not allow
one to adequately unpack a Meiri.

I therefore am amalgamating these comments into one and posting a fuller
version here.  If one wants to follow fully what I am saying, I would
suggest having the text of the Meiri in front of one.  R' Gil on Hirhurim
posted a link to http://hebrewbooks.org/pdfpager.aspx?req=30808&st=&pgnum=59
but it is a horrible edition, with the typeface barely legible, and there
are much nicer printings out there (or if subscribed try Bar Ilan).

The Meiri that Rabbi Freundel quotes is included in the section of the
Meiri's commentary on daf 24a of mesechet Megilla, which is on perek haomed
(which depending on what you are looking at, is either the third or fourth
perek of Mesechet Megilla) in his comments on "Mishna Chamishit".  The
Mishna he is commenting on says that a katan may read from the Torah and
translate (do targum) but he may not pores al Shema and he may not "over
lifnei hatevah".  

This language of the Mishna is quoted by the Meiri pretty much verbatim, all
he appears to add to it is firstly a discussion about the rationale for why
a katan can read from the Torah and then a discussion about the bringing of
two hairs and the point of maturity.

Thus I can well understand RMS's confusion about why Rav Freundel believes
this Meiri adds anything to any discussion about leading psukei d'zimra and
kabbalat shabbat.

But after some of the toing and froing and particularly this last article by
Rabbi Freundel, I gather that he is reading this Meiri as saying, not as RMS
automatically understood it, and as I automatically understood it (and as I
think anybody who has studied masechet megila would automatically understand
it) when he uses the term "over lifnei hateva" to mean chazarat hashatz but
to mean, as Rabbi Freundel specifies above, *all* services including pzukei
d'zimra.

Now it is rather hard to even understand how Rav Freundel came to this
reading.  The best I can do is that he is working backwards from the Torah
reading, and the reason given. Because the Meiri understands the reason that
the katan can read Torah being because there is only a real mitzvah on the
people to listen, and there is no "mitzvah gamura" like other mitzvoth.  I
then assume that he has jumped to the conclusion that since that reason is
only true for reading torah, and since psukei d'zimra have nothing to do
with a mitzvah to listen, therefore if it doesn't fall within the reading
Torah category, it must fall within the over lifnei hateva category. 

In any event, the point I made in the comments on hirrhurim was that the
Meiri himself defined the terms pores al shema and over lifnei hatevah in
his comments on the third mishna, ie two mishnayos previously and that Rabbi
Freundel's reading is completely untenable given that fact.

I have had various quibbles about what I said, and since in the comments
section it is difficult to do a full and proper analysis of that previous
Meiri (I suppose I naively thought that if I merely point this out, it will
be obvious to everybody, but it seems not so), and it is true that the
previous Meiri is complicated, so let us unpack it properly here.

The earlier Meiri is a comment on the Mishna that can be found on daf 23b of
Mesechet Megilla, in which you will notice that the same pairing of language
is brought, that of being pores al shema followed by over lifnei hatevah.
Now the Meiri begins his comment on this Mishna, Mishna Shlishit, by noting
that the subject matter of this mishna are those matters that cannot be done
without ten - ie which require a minyan.  He then begins by explaining the
phrase pores al shema.  The first explanation he gives is in fact that given
by Rashi and Tosphos (although he does not quote them by name) saying that
this is something that happens when ten come to a synagogue and find that
the congregation has already davened, and they themselves have already
davened as individuals, and they therefore want to catch up only on the a
various things that can only be said in a minyan.  There is a dispute
brought down in the Tosphos there on the daf as to how many of these
individuals need not to have heard the various minyan only matters ranging
from seven to one which the Meiri summarises. He then explains in detail
which bits they say when they do this particular kind of pores al shema
according to this opinion ie kaddish and barachu and the first bracha of
krias shema until Yotzei Or (which has in it kedusha) then skip ahavas olam
and krias shema and skip from there to the 18  blessings (which can be said
as a voluntary offering) and then kedusha.  He then explains (as the various
meforshim who explain this way have before him) that the language of pores
comes from to divide, because one is dividing the davening into bits that
are said and bits that are skipped over (since they were said previously by
the individual, and do not require a minyan) and that this leaves the term
"over lifnei hatevah" to be what happens in the normal course - to use the
Meiri's language, a tephila shlema or a complete tephila, rather than one
that is divided by all this skipping because people missed saying their
davening in a minyan.

The Meiri then notes that there are those who disagree with the meaning of
pores al shema as defined above because it assumes that the kedusha in yotze
or can only be said in a minyan, and yet we hold based on mesechet brachot
that in fact this kedusha can be said individually (as no doubt all of us
have done at some time).  [I would note that there are other meforshim who
tackle this question in order to justify this definition, but the Meiri
himself leaves it at that].

Rather he goes on to give an alternative definition of pores al shema due to
these objections which is that pores is from the language of blessing, and
just means the blessings over the Shema in their usual order (no skipping or
dividing involved) and that the term over lifnei hatevah means the 18 (ie as
RMS assumed it, chazarat hashatz) and explains that there was at one time a
minhag (R' Gil prefers they were accustomed to, which is also fine) have the
shaliach tzibbur stand far from the ark, and after they finished the
blessings on the Shema he would move close to the ark in order to show that
the blessings on the Shema and the Shmonei Esrei are two separate matters
that independently need a minyan - and that this is where the language of
"over lfinei hatevah" comes from.  He then backs this up by quoting the
Yerushalmi (which I would highly recommend looking at inside, it really does
set it out so nicely - the version I have has it on the fourth perek halacha
4, on page 24a-b) that questions why it is necessary to bring both pores al
shema and over lifnei hatevah, given that once it has taught that you need a
minyan for pores al Shema, why do you need to teach that you need a minyan
for over lifnei hatevah with the answer being to show that if you lose your
minyan in the middle (eg the minyan man walks out) where you can continue to
since there is an opinion that even if one loses the minyan during the
blessings of the shema, one can continue all the way through chazarat
hashatz, since it is part of one unit, but that in fact the answer is
different, that if you lose your minyan man during the blessings of the
Shema, you can continue that portion only, but cannot do chazarat hashatz,
and only if you lose your minyan man during shmonei esreh you can continue
to the end of shmonei esrei (and indeed the Yerushalmi goes on to explain
the whole mishna this way, ie duchening etc).

I also noted parenthetically that the Rema in Orech Chaim siman 55 si'if 3
rules like the opinion that if you lose your minyan after they begin Yotze
Or, then the shaliach tzibbur cannot do the repetition, ie like the
Yerushalmi (and implicitly not like those who explain pores al shema as
involving skipping).

After this long and detailed discussion about the meaning of the two terms
pores al shema and over lifnei hatevah but two mishnayos previously, I found
it rather astounding that there were suggestions in the comments section on
Hirrhurim that the Meiri was happily using different definitions (ie that
proposed by Rav Freundel of all services, including psukei d'zimra) on the
fifth mishna, without any discussion of such a radical new amendment when
what was encompassed by over lifnei hatevah was clearly set out.

The second aspect I want to comment on here is something that jumped out at
me when I read the original article as very strange, namely the discussion
on women's obligation in prayer generally. Here I am going to focus on what
Rav Freundel said regarding women's obligation in Shmonei Esrei
specifically, since adding in the question of psukei d'zimra gets too
complicated.

Rav Freundel stated in his original article on page 26:

>Approaching this in the broadest way possible, there are some who see three
positions among Rishonim on this question. 

...

>Arukh ha-Shulkhan sees in Rashi the opinion that women must pray all three
prayers every day.99 He goes so far as to say that it is difficult to
>understand why women are generally not careful to pray all three tefillot
each day in accord with this opinion. The fact that this is true—i.e. that
the >vast majority of observant women do not daven Maariv —means that de
facto this position is not the accepted Halakhah.100 

This is a fascinating position taken almost casually.  If the vast majority
of observant women (or men for that matter) do not do something, does that
mean, regardless how strong the source material, that it is not accepted
Halacha?  Hair covering for women springs to mind, but I am sure we can
think of a  fair few more.  Ma'ariv comes up below.

...

>The second opinion is that of Nahmanides. Ramban argues for twice a day
recitation of the formal prayer by women at Shaharit and at Minhah. The
problem >is that Nahmanides is not the author of this position despite some
like Mishnah Berurah who credit him with it. 102 I cannot find this position
anywhere >in Ramban’s writings.

Footnote 102 states:

>106:4. Mishnah Berurah calls this the main (Ikar) opinion. There is
confusion here between the wuestion of whether the requirement to pray is
biblical >or rabbinic and the question of how many times a day a woman must
pray. Those two issues are not the same,but they appear to have gotten
conflated >somehow

The reason that these two issues are generally bound up with one another is
this.  The gemora in Brochos 20b says that women are exempt from krias shema
and tephillin and obligated in tephilla and mezuzah.

Now according to the Meiri (yes, him again) on Brachot 20b there are two
different girsos of the gemora in Brochos as to the reason given for women's
obligation in tephila. The first is that of the Rambam and the Rif (again,
not that he mentions them by name), that the reason women are included in
tephila is because it is *not* a mitzvah aseh shehazman grama - a positive
mitzvah dependent upon time, the non time bound nature of it being a torah
command, with the times and details that we are familiar with being added by
the rabbis.  The second reason (which is our girsa, and is quoted by Rashi
and Tosphos there) is of rachmei ninhu - ie that women too need mercy -
meaning that the Chachamim (who instituted the obligation of prayer)
required women to daven (ie by implication despite the fact that it is a
time bound mitzvah).

Now everybody agrees that the Chachamim added the times and details and form
of the davening of the Shmonei Esrei. So if you hold by the position that
tephila is d'rabbanan, then that is all there is, all our davening is what
the Chachamim set out, and according to the gemora in Brochos 20b they
included women.  Thus whatever they instituted for men they instituted for
women, and that leads to a three times a day davening according to the Aruch
HaShulchan and eg the Shagas Areyeh, or perhaps (if one takes seriously the
idea of ma'ariv as having originally been reshus - ie not an obligation
imposed by the Chachamim, and of women not ever having taken on such an
obligation, unlike men, as the Mishna Brura 106:4 suggests) then only
shachris and mincha davening.

Now Rav Freundel appears to be trying to suggest that there might be a
position which says that tephila is purely d'rabbanan, and yet while women
are obligated in it (since the gemora in Brochos 20b states this explicitly)
somehow the rabbis made up a different way of davening for men and women,
without telling us what the differences are at any point.  However let us
think this through.  If we can say this about this, surely we can say this
about any rabbinic mitzvah under the sun.  Eg that the rabbis instituted the
mitzvah of the four cups, and they included women, but maybe they didn't
include women in the details, and the details and the times are completely
different for women - or pick whatever other rabbinic mitzvah you like in
which women are included.

And not only this - but nobody except Rabbi Freundel seems to have tumbled
to this scenario and lack of linkage.

However, I think the correct understanding and assumption throughout our
sources is that if the rabbis instituted something, and included women, then
they included women in the same way they included men.   If they excluded
women (whether by application of the rule exempting them from mitzvos aseh
shehazman grama or not) then they excluded them, but they didn't include
them and yet make up completely different rules for them than the rules they
made up for the men, especially without mentioning it in place.

This means that the times and form of davening [by this is meant generally
by these commentators shmonei esrei] for men and women *if* you hold by idea
that tephila is d'rabbanan is identical - with the possible exception of
ma'ariv, and only because ma'ariv is something that even for men may not
originally have been obligatory.

> In addition, if one looks in the same section of the Shulhan Arukh where
Mishnah Berurah makes this statement it is clear that he >is quoting R.
Akiva >Eiger. 103 Eiger says that Nahmanides takes this position in section
89 of a work called ResponsaBesamim Rosh. At one time this book >was
attributed to >a variety of important scholars including Ramban, but now it
is known to have been written byIsaac Molina in the 16
>Th century. It is also a work of questionable halakhic authority because of
many of the stances that it takes on a variety of issues.
>It certainly would not have the standing to successfully debate positions
taken by Rashi or Maimonides, who we are about to cite.

Now once one accepts the idea that there is a direct linkage between holding
that tephila is d'rabbanan and holding women as being obligated in it in the
same way men are, then all this falls away.  Because we have very clear
sources in the Ramban that he holds that tephila is d'rabbanan - his
arguments to this effect are set out at length in his Hasagot haRamban
l’sefer hamitzvot l’Rambam mitzvah aseh 5 and the Kesef Mishna quotes him at
length on Hilchot Tephila Mishna 1 halacha 1.  There is no need to go
hunting around to cross references to Rabbi Akivah Eiger's and the Besamim
Rosh.

...
>That leaves us with Maimonides and the third opinion that women may say
whatever they want, but that they are required to do so only once each day.
>104 

Extraordinarily this is cited as a complete given. However this
interpretation of Maimonides is in fact that of the Magen Avraham who says -
and this needs to be quoted in full:

Magen Avraham siman 106 si’if 2

מצות עשה - כ"כ הרמב"ם דס"ל דתפלה מ"ע דאורייתא היא דכתיב ולעבדו בכל לבבכם
וכו' אך מדאורייתא די בפעם אחד ביום ובכל נוסח שירצה ולכן נהגו רוב נשים שאין
מתפללות בתמידות משום דאומרי' מיד בבוקר סמוך לנטילה איזה בקשה ומדאורייתא די
בזה ואפשר שגם חכמים לא חייבום יותר והרמב"ן סובר תפלה דרבנן וכן דעת רוב
הפוסקים

A positive mitzvah:  So writes the Rambam as he holds that prayer is a
positive mitzvah from the Torah as it is written “and to serve with all your
hearts etc” but from the Torah it was enough once a day in any wording that
he wanted, and thus the custom of most women that they do not pray regularly
because they say immediately in the morning close to washing [the hands]
some request and from the Torah it is enough [merely to do] this, and it is
possible that also the Chachamim did not obligated them more, but the Ramban
holds that prayer is from the rabbis and so is the opinion of the majority
of poskim.

Now stop for a minute and think how extraordinary this is.

Everybody agrees that women are obligated in the mitzvah of matzah d'orisa,
but that a lot of the details of how we eat it and when we eat it are
rabbinic.  Does this mean that women are free to ignore the rabbinical
details of the eating of matzah and just do the minimum d'orisa obligation
because "it is possible that the Chachamim did not obligate them more"?  How
about every other Torah mitzvah women are obligated in.  Are rabbinic
delineations of how to carry out Torah mitzvos only for men?

Now even Rav Ovadiah, who appears to hold something close to this, ie that
women are only obligated to daven once a day, holds that that once a day
needs to be the Shmonei Esreh as laid down by the Chachamim - ie you can't
separate the rabbinic details from the actual obligation - and that only
what one might perhaps argue are *additional* prayer services over and above
the first one are not obligatory on women.  However Rav Ovadiah agrees that
in order to hold so, he is forced to say that the Rambam went back on his
position in the perush hamishnayos, because there he makes it clear that he
holds that women are also obligated fully in the rabbinic aspects of prayer.
To my mind Rav Henkin in Shut Bnei Banim Chelek 2 siman 6 convincingly shows
that the Rambam was not in fact chozer on his opinion in the perush
hamishnayos, and that thus what has to be the logical and most
straightforward understanding of the Rambam, that if women are obligated in
the mitzvah d'orisa, then whatever it was the Chazal instituted to define
how that mitzvah has to be carried out also applies to women.

But now we get into something that appears to have been a source of
discussion in the comments on Hirhurrim that I believe needs clarification,
that of the difference between Sephardi and Ashkenazi psak.  While there are
a few things (like kitnyot) that are based on minhag alone, they are
exceedingly rare.  By far the vast majority of differences are due to there
existing a situation where one group of rishonim go one way on a particular
matter, and another group go another way.  And the Sephardi and Ashkenazi
poskim end up following different groups.  Often this is because Sephardim
give more weight to what might be called the "heavyweights" - the Rambam,
the Rif and the Rosh, whereas the Askenazim will give more weight to later
rishonim, such as the Trumas HaDeshen or the Mordechai, because since they
saw the others, they formed a view on them and should be followed.  Or
alternatively, there is a geographical split - with the Ashkenazi psak
following Rashi, Tosphos, the Rosh, and the Sephardi psak following the
Rambam and the Rif.

Now here we seem to have one of the latter.  The Meiri may (perhaps
correctly) attribute it to a girsa difference, but the Rambam and the Rif
hold that tephila is d'orisa, and only the details and timing are
d'rabbanan, and the Ashkenazi line, Rashi, Tosphos, Ramban (although note
that to that one can add the Ra'avid and the Rashba  based on the teshuva I
brought in my previous post on katanim leading the services, ie Shut
HaRashba Chelek 1 siman 239 - as this assumes a rabbinic origin for
tephila).  So while the Shulchan Aruch in Orech Chaim siman 106 si'if 2
follows the Rambam in holding that tephila is in essence a positive mitzvah
not dependent upon time ie a Torah mitzvah, it is not surprising that
Ashenazi commentators like the Taz immediately respond that it is
d'rabbanan, and that even the Magen Avraham, who tries to learn a limud
zechus on women not davening based on the Rambam, notes that his line of
tradition (rov haposkim) does not allow this.  None of this appears to
bother Rabbi Freundel, who is convinced by his unique chiddush that the
nature of tephila as d'orisa and d'rabbanan can be unwoven to create a very
different relationship between women and tephila than any commenter has ever
postulated.

And this discussion is not part of a theoretical article - let's see if we
can unpick the nature of women's obligation in prayer from the way it has
traditionally been understood, written for a scholarly audience in Hebrew,
but as part of a polemic against partnership minyanim in an article which
can be expected to be read by many people, many of them women, many of them
with limited halachic skills and knowledge.  Now Rav Freundel may not like
partnership minyanim and may have good reasons to oppose them - but it is
quite likely that as a consequence of writing this piece Rabbi Freundel will
dissuade (some, maybe many) women from davening.  And if the more
traditional understanding of women's obligation in Shmonei Esrei is correct,
that would mean that he has directly caused them to be mevatel their chiyuv
(for those that hold d'orisa, with the details being part and parcel of how
to carry out the d'orisa) on a d'orisa level and if d'rabbanan, d'rabbanan.
That is a pretty weighty thing to have on one's shoulders.

>Meir Shinnar

Regards

Chana