[Avodah] partnership minyanim

[Chana Luntz]

RMB writes:
>The BY is a stronger defense of the minhag than the SA. It would seem from
>the BY that given a choice, he wouldn't end the minhag. Whereas the SA's
>speaking of "limud zekhus" implies to me a disapproval with the minhag,
>and just a way to judge those who follow it more favorably.

Yes, agreed.

But what is far more important is not the minhag in question, but the
reasons the BY gives to justify the minhag.

Basically they are twofold:

a) based on a teshuva of the Rashba and the Ra'avid - there is no problem
having a katan be motzei a gadol in tephila, because the katan's obligation
is d'rabbanan, and so is the gadol's - so the only issue is kovod hatzibbur,
and if the community waives kovod hatzibbur, then it is OK.

b) based on his own reasoning, Arvit is reshut and that is why it is OK, but
where there is a question of being motzei somebody else by a tephilat chova,
such as by shachrit, musaf and mincha (and even perhaps, as per the Maharal
the Darchei Moshe brings and the Dagul Mervava, Arvit of Friday night), then
there is a problem.

So let's analyse these two in turn:

Re a) - it might help if I brought the language of the Rashba directly -
here it is (after the point where he discusses, and rejects, being metzaref
a katan to a minyan):

שו"ת הרשב"א חלק א סימן רלט
...  אבל להוציא כיון דברכות ותפלות דרבנן וקטן שהגיע לחנוך דרבנן סברי מימר
אתי דרבנן ומפיק דרבנן דהא איכא עשר דחזו לקדושה. קא משמע לן משום כבוד צבור לא
עביד גנאי הוא לצבור שהקטן מוציאן. ובירושלמי מוקי לה אפילו בקטן שהביא שתי
שערות.  ואתיא כי ההיא דגרסינן בחולין (פ"ק דף כ"ד ב) נתמלא זקנו ראוי למנותו
שליח צבור ולירד לפני התיבה ולישא את כפיו. ותו לא מידי. עד כאן לשון הרב ז"ל
ודבריו נכונים וכנים הם.

Shut HaRashba Chelek 1 siman 239
"...But to exempt others since the brachot and tephila are derabbanan and a
katan who has reached the age of chinuch is rabbinically obligated it is
possible to say that one who is obligated rabbinically can exempt one who is
obligated rabbinically this being when there is ten and it is fit for
kedusha. And therefore we learn that because of kovod hatzibbur we do not
allow a gnai [disgrace] to the community that a katan exempts them. And in
the Yerushalmi it is established that this is even a katan who has brought
two hairs. And it is brought like the version in Chullin (perek kama daf
24b) that when his beard is full he is fitting to be appointed shalich
tzibbur and to go before the ark and to duchen. And until then not. Until
here is the language of the Rav [Ra'avid] and his words are correct and to
be relied upon."

Now as Rav Ovadiah notes, this can be assumed to be following the Rashba's
own shita which is that katanim are themselves obligated rabbinically (and
it is not just that their father is obligated), whereas the majority of
poskim hold differently -- and we can understand, following the majority of
poskim, why the Beis Yosef would be unhappy with this shita, because it is
relying on a minority position about the obligations of katanim. (Rather
ironically following the Ra'avid and Rashba mean that a woman's situation is
halachically stronger than a katan, because she is, according to the
majority position, obligated rabbinically in tephila).

So one can understand the Beis Yosef's fundamental discomfort (and the
objection of the Rema) to the practice as being sourced in relying on a
minority shita regarding the level of obligation of a katan. And hence it
can be understood that for an even lower level tephila, such as pesukei
d'zimra, there might be even less objection. Noting of course that he rules
in Shulchan Aruch siman 53 si'if 6 that for kovod hatzibbur you should only
have somebody appointed to the position of Shatz if he has a full beard, and
that only on a causal basis should you have somebody who has merely brought
two hairs, so clearly there is a lot of discomfort about waiving kovod
hatzibbur even to allow a teenager to daven regularly.

Regarding b) -- while it is true that Arvit is deemed reshut when compared to
shachrit, musaf and mincha, it is of course not really so reshut -- the
dominant position being that it is pretty close to chova. So if it is even
begrudgingly OK to allow a katan to do Arvit, because and only because it is
on a lower level than shachrit, mincha and mussaf, then it logically
suggests that there is no problem in a katan doing psukei d'zimra, which
everybody would agree is a lower level of obligation than Arvit.  And the
discomfort of the Shulchan Aruch and the Rema may well stem from the fact
that they really hold that Arvit is chova, and should in this regard be
equivalent to shachrit and mincha.

>What is see is that the Rama and the SA agree that in principle, having
>a qatan as a shaliach tzibur is a bad idea. The SA's relationship to
>existing minhag aside, he still stands pretty far from advocating it
>for those who have no such minhag.

What we see from the Rema and SA is that in principle, they both agree that
having a katan as a shaliach tzibbur for *Arvit* is a bad idea.

They do not directly speak to the question regarding having a katan lead the
community for psukei d'zimra - which is what is extremely widely practiced
amongst Sephardim of many different communities.

Ie the common Sephardi psak would appear to be based on an understanding
that the reason for the Shulchan Aruch's discomfort with katanim leading
Arvit is the flipside of the reasons given to possibly allow the minhag of
Arvit by the Beis Yosef either:

a) the issue is kovod hatzibbur, and kovod hatzibbur questions do not apply
to psukei d'zimra; or
b) Arvit is a lower level tephila than shachris or mincha and hence psukei
d'zimra which is an even lower level tephila than Arvit there is no reason
anyone would forbid.

Thus there is no problem at all for a katan to lead psukei d'zimra.

...
>: Now Rabbi Freudel does note this, but appears to treat it as some sort of
>: halachic aberration...

>But isn't he following the SA in that attitude?

No.

Firstly Rabbi Freudel says that there is nothing in the sources which
applies the concept of kovod hatzibbur to any form of tephila (only to Torah
reading, as per gemora Megilla 23a) - when the Beis Yosef quotes the Rashba,
who himself quotes and giving his agreement to the Ra'avid, who specifically
raises kovod hatzibbur as the operative principle at work that rules out
katanim (and it is all over the literature regarding beards).

Secondly, Rabbi Freudel insists that psukei d'zimra is on the same level as
all the other tephilot in terms of who can lead it, and therefore he cannot
understand any justification for Sephardim having katanim lead it.  And to
the extent that he is prepared to acknowledge that there is an extant minhag
amongst Sephardim to have katanim lead it, he takes the attitude towards
*psukei d'zimra* which the Shulchan Aruch takes towards *Arvit*.  Ie what he
appears to believe that what the Shulchan Aruch was really saying (without
quoting the SA) was that Arvit on motzei Shabbat and psukei d'zimra are
problematic - and that when the Rema was really saying there is no such
minhag amongst Ashenazim and that you shouldn't institute it - he was saying
both Arvit on Motzei Shabbat and psukei d'zimra.

But given that the Beit Yosef brings as his own reason, on top of that of
the Ra'avid/ Rashba, why one might allow a katan to take Arvit, even if only
b'dieved, is because it is a lower level of obligation than Shachrit and
Mincha (reshut versus chova), it is far more logical to deduce that he would
hold that psukei d'zimra was mutar l'chatchila - and indeed that is the way
the Sephardi poskim assume - I quoted Rav Uzziel who said it explicitly.  I
am yet to find a Rav Ovadiah who says this - but the point is, given how
widespread the minhag is, the chances that Rav Ovadiah himself did not say
psukei d'zimra as a katan is to my mind pretty small.  If this was something
that was in any way objectionable, or bideved, it would need to be all over
the Sephardi poskim.  It is not.  Therefore, it is pretty clear that they
all understand the Shulchan Aruch as saying - Arvit on Motzei Shabbas,
perhaps a bit iffy, psukei d'zimra - absolutely fine.

And if you accept that the Sephardim do hold that way, you have to say that
the Rema missed a trick here in disagreeing with the Shulchan Aruch, because
he really held for Ashkenazim not only is the minhag he disagrees with -
Arvit on Motzei Shabbas, a problem, but also leading psukei d'zimra.  But
the Rema certainly doesn't say that, what he does specifically bring is that
there is a prohibition on a katan leading Arvit of *Shabbat* even on the
night of his Barmitzvah.  And indeed, the explanation from the Dagul
Mervava, not exactly a Sephardi posek, suggests that the Dagul Mervava at
least sees the real question as being whether you exempt somebody by virtue
of leading the particular service or not- making psukei d'zimra apparently
completely mutar.

That is, Rabbi Freundel is perforce forced to make a distinction between
Sephardi and Ashenazi halacha that need by no means to be read into the Rema
or any of the Ashkenazi line of poskening - given that the more natural way
of understanding it is that the Rema and the Shulchan Aruch basically agree
that psukei d'zimra is fine for a katan to say and indeed you could start a
custom of having a katan say it if you hadn't in the past, but for Arvit if
there is a minhag for a katan to say it, you do not have to nullify the
minhag, because there is something on which to rely, but it is not a minhag
to be created l'hatchila. 

But instead of tackling this BY, Shulchan Aruch, Rema (and indeed Rashba and
Ra'avid) head on, Rabbi Freundel quotes what is to my mind an irrelevant
Meiri and the Tosephta regarding having as a shaliach only a man with a full
beard.  Not that the beard halacha is irrelevant, it is much discussed in
the poskim and indeed the Shulchan Aruch himself rules that this relates
only to a fixed shatz and because of kovod hatzibbur.  And as mentioned, the
Bach I quoted links it to the gemora in Shabbas that having a full beard is
the sign of a beautiful form (as, if you read the gemora there, opposed to a
eunuch - interesting question being whether there are poskim who would not
permit a saris to lead the davening, either at all or as a fixed shatz),
while there are those who understand it to mean somebody of the age and
stature that he could have a full beard (the sort of person you would send
in front of a king of flesh and blood). Tosphos reconciles various gemoras
to say that this requirement for a beard (or possibility of a beard) is only
on fast days and the like. It is not a small halachic topic.  But it is
rather odd to quote the Tospheta in isolation and try to learn something out
from "smuchin" - the juxtaposition of various halachos regarding men and
women in a Tosephta, given the context of all this later literature and the
general nature of the Tosephta. 

But most fundamentally problematic to my mind, is that Rav Freundel
effectively comes out and says that what most Sephardim do in allowing
katanim to say psukei d'zimra is wrong - based inter alia on a Meiri and a
tosephta.  Not by demonstrating that Ashkenazi psak is different from
Sephardi psak because it is rooted in  different rishonic principles (which
is the usual way you get to the differences) but wrong in principle, and all
without engaging with the fundamental sephardi line of psak on the subject
of katanim.



RBF:
>> Yet there has, to the best of my knowledge and research, not been any
>> formal attempt to discuss in writing whether these practices are or are not
>> Halakhic. In effect, Halakhah has been the silent partner in the development
>> of Partnership Minyanim.

And RDR responded:
> I don't subscribe to Areivim, and maybe this has been said there, but to my
> mind halachic responses to partnership minyanim miss the point.  
> Partnership minyanim are a watered down version of the critique of
> orthodoxy that goes back to the egalitarian movement: in a world in which
> men and women are treated the same in so many other domains, why does
> Judaism >not assign equal status to women? And that is a moral critique, not
> a legal critique.

> I think moral critiques deserve moral responses.  And I think this
> particular moral response has to start with a fundamental theological
> question: why do we have two sexes? Why didn't God avoid the issue by
> creating (treating and creating are only one letter apart) men and women
> the same?

The problem with moral responses is that there can be any number of them -
many of which you may not find satisfying. For example, a moral response
to the above question could be along the lines of:

- for the same moral reason that Hashem created the world so that the
 poor shall never cease from the land (Devarim 15:11); or

- for the same moral reason that Hashem did not create Adam knowing about
  electricity, antibiotics and indoor plumbing, all of which would have
  made the lives of his immediate descendants infinitely more comfortable.

You may not like these moral responses - but there are those who do,
and those who do will then predicate their actions on these moral
understandings and you have few tools to assert their rightness or
wrongness. As Sir Thomas More is deemed to have said in A Man for All
Seasons:

"The currents and eddies of right and wrong, which you find such plain
sailing, I cannot navigate. I'm no voyager. But in the thicket of the law,
oh, there I'm a forester. ..." and "This country's planted thick with
laws from coast to coast... and if you cut them down-... d'you really
think you could stand upright in the winds that would blow then? Yes,
I'd give the Devil benefit of law, for my own safety's sake."

That is the moral response to the critique of mere legal critique.
But the legal critique needs to be a good one, not merely a exercise of
cutting down of trees to get to the Devil - even if Devil it may be.
Hence purported legal critiques based on certain moral positions may
in fact require legal responses for the moral reason of protecting
the forest.

Regards
Chana