Synagogue Partition

The Quest for an Effective Synagogue Partition Plan Bisi’yata D’Shmaya by Shalom Spira INTRODUCTION One particularly nebulously mysterious halakhah that governs the architecture of a synagogue is the requirement for a partition during prayers. The insistence upon a partition is first explicitly codified in R. Moshe Sofer’s Shu”t Chatam Sofer, Choshen Mishpat no. 1901. R. Sofer derives the requirement from the gemara’s account in Sukkah 51b-52a of the gallery that was constructed in the external courtyard of the Temple in order to celebrate the Rejoicing of the Water Drawing. However, R. Sofer does not articulate the precise nature of this obligation (neither in the Temple nor in the synagogue), nor does he specify the necessary dimensions of the partition. Subsequent authorities have clashed over the clarification of these elements, and it is accordingly the purpose of the following essay to elucidate an effective synagogue partition plan. A. THE NATURE OF THE OBLIGATION R. Moshe Feinstein in his Shu”t Iggerot Mosheh, Orach Chaim I, no. 39 demonstrates on the basis of Sukkah 51b-52a that a proper partition in a sanctuary during prayers is necessitated by virtue of the mitzvah di’oraita of “you shall revere My Sanctuary” (Leviticus 19:30). After all, he argues, the Sages modified the architecture of the Temple in order to establish a separate gallery for the ladies, and yet Tosafot to Zevachim 33a (s.v. vili’avad) rule that one may not tamper with the Temple blueprints unless one is doing so to fulfill a mitzvah di’oraita. Evidently, then, the renovations of the Temple architecture must have been orchestrated under the rubric of a mitzvah di’oraita, and the mitzvah di’oraita that governs sanctuary decorum is clearly Leviticus 19:30. R. Feinstein corroborates this conclusion by citing the Jerusalem Talmud, 1

Actually, several fleeting allusions to the concept of a synagogue partition already appear before the Chatam Sofer’s time. Firstly, as will be discussed infra, footnote no. 17, there is a Midrash in the Yalkut Shim’oni to Deuteronomy 23:15 that refers to the concept of a partition during communal prayer. Secondly, in his Shu”t Maharil no. 53, R. Jacob Moelin tangentially mentions “the synagogue of the ladies” in a certain city as being stationed in the wine cellar of the attendant of the synagogue, without further elaboration or analysis. Thirdly, R. Moshe Isserles, in his Darkei Mosheh to Tur, Yoreh De’ah no. 265 (se’if kattan no. 11), quotes the Maharil as having cited the Maharam of Rothenburg to the effect that a lady transporting a baby boy to synagogue [on the occasion of the baby’s circumcision celebration] should stop outside the synagogue and hand the baby to a gentleman who will continue to carry the baby inside, due to considerations of modesty. This provision is subsequently codified by R. Isserles in his gloss to Shulchan Arukh Yoreh De’ah 265:11. Fourthly, the Taz, in his commentary on Shulchan Arukh Yoreh De’ah no. 371, se’if kattan no. 3, describes a certain question of ritual purity that involved the architecture of the ladies’ gallery of a synagogue. Additionally, writing at virtually the same time as the Chatam Sofer, R. Eleazar Fleckles in his Shu”t Teshuvah Me’ahavah II, no. 229 (subsection no. 10) comments, based on the Zohar and the “Sages of truth” (chakhmei emet), that it is improper for gentlemen and ladies to occupy the same venue during synagogue prayers. However, R. Fleckles is somewhat ambiguous as to whether his words are enunciating a normative obligation or salutary guidance. Thus, it is precisely the Chatam Sofer who is the first authority to clearly identify the concept of a synagogue partition as an absolute obligation that is derived from Sukkah 51b-52a.

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Sukkah 5:2, which terms the construction of the gallery “a matter of Torah [law]”. R. Feinstein claims, by way of extrapolation, that Leviticus 19:30 is also the source for the obligation of a partition in the contemporary synagogue. R. Feinstein’s thesis that a synagogue partition constitutes a mitzvah di’oraita was actually earlier articulated by R. Yehudah Greenwald in his Shu”t Zikhron Yehudah I, no. 62 and by R. Abraham Isaac Hakohen Kook in his Shu”t Orach Mishpat no. 35. R. Feinstein’s thesis is subsequently reiterated by R. Joel Teitelbaum in his Shu”t Divrei Yo’el, Orach Chaim no. 10. In an impressive discovery, R. Feinstein’s position is strengthened by R. Efraim Greenblatt in the latter’s Shu”t Reevivot Efrayim V, no. 601. R. Greenblatt cites R. Yosef Engel’s Gilyonei Hashas commentary to Kiddushin 52b, who in turn employs the Talmud Yerushalmi, Ma’aser Sheni 5:3, to demonstrate that the obligation for a partition in the Temple is actually biblical in nature. There, the Talmud Yerushalmi asks that – according to the opinion that the first tithe (ma’aser rishon) may be given to a kohen as well as a levi – how does one understand the verse “you shall eat it in any place, you and your houses” (Numbers 18:31), when after all a kohen cannot enter a cemetery. [If the verse was speaking only to a levi, it would be understandable, since a levi may indeed permissibly enter a cemetery.] The Yerushalmi answers that the phrase “any place” means “any place in the Temple courtyard”. The Yerushalmi immediately protests that this exegesis cannot be, for the verse continues “you and your houses”, implying that gentlemen and ladies will eat the ma’aser rishon together in the same venue, and yet gentlemen and ladies cannot possibly congregate together in the Temple courtyard. The implication of this Yerushalmi is that a partition between ladies and gentlemen in the Temple is a matter of Torah law. R. Feinstein’s position, however, is sharply challenged by R. Yom Tov Halevi Schwarz in his Ma’aneh La’iggerot, no. 18. R. Schwarz asserts that a partition in a sanctuary during prayers is a rabbinic mitzvah (and not a mitzvah di’oraita), derived from the prophet Zechariah. R. Schwarz believes that Tosafot in Zevachim 33a only intended to disallow tampering with the Temple architecture for a mitzvah dirabbanan that is devoid of prophetic basis. But a rabbinic directive which is prophetically predicated does indeed generate authorization to tamper with the Temple architecture. In his more recent Shu”t Adnei Nechoshet I, no. 93, R. Schwarz is counterattacked by a certain interlocutor who asks that even if one concedes that the mitzvah of a partition originates from the prophets rather than from the Torah, it should remain the case that it be treated as a mitzvah di’oraita, since divrei kabbalah are treated as mitzvot di’oraita. R. Schwarz effectively responds with a two-pronged rejoinder: (a) It is in fact controversial whether divrei kabbalah are treated as mitzvot di’oraita2. (b) Even according to those poskim that divrei kabbalah are treated as divrei torah, that is only so for a mitzvah which the prophets explicitly command, as distinct from the mitzvah of a partition in the Temple which is only derived by way of indirect inference3. The partition is merely derived from an indirect reference of the prophet

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Even so, R. Yechiel Danziger in his Zemanei HaPurim (B’nei Berak 5765), ch. 2, calculates that the majority of poskim holds that divrei kabbalah are indeed treated as divrei torah, and that such is the halakhah. 3

However, one must then inquire how to reconcile R. Schwarz’ proposition with Tosafot to Zevachim 33a, s.v. vili’avad. For if indeed it is the case (as R. Schwarz declares) that a partition in the Sanctuary only constituted a rabbinic mitzvah (as distinct from a mitzvah midivrei kabbalah), then according to Tosafot it should not have merited the overriding of the original Temple blueprints. The fact that the Sages constructed a balcony ipso facto means that it must have represented more than a mitzvah dirabbanan. Evidently, what R. Schwarz must mean is that there are two classes of divrei kabbalah – those that are directly instructed by the prophets, which according to some poskim are to be treated like divrei torah, and those that are only indirectly inferred from the prophets, which according to

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Zechariah. Thus, R. Schwarz stands by his original position that a synagogue partition is definitely a mitzvah dirabbanan and not a mitzvah di’oraita. R. Schwarz further challenges R. Feinstein’s willingness to apply Leviticus 19:30 to a synagogue, when the sanctity of a synagogue is obviously not of the same ranking as the sanctity of the Temple. [Without explicitly identifying R. Feinstein, this remonstration is also articulated by R. Benjamin Silber in his Shu”t Az Nidbiru XII, no. 48.] R. Feinstein himself takes cognizance of this problem, answering that although a synagogue may not be of identical stature to the Temple, nevertheless during the prayers themselves the congregation must treat themselves with the equivalent reverence as though they are present in the Temple. [R. Feinstein supports his claim by quoting the Ran4 who explains that the Sages endowed a synagogue with sanctity on account of the prayers that are recited therein.] R. Schwartz objects that this equation appears to be entirely unsubstantiated5. all poskim are only to be treated as a mitzvah dirabbanan – but that both kinds of divrei kabbalah are sufficiently authoritative to override the original Temple blueprints. R. Schwarz’ analysis regarding the possible existence of two distinct classes of divrei kabbalah is well taken. Nevertheless, R. Schwartz’ resulting thesis that the Temple balcony is a rabbinic mitzvah appears incompatible with the Yerushalmi in Sukkah 5:2, where the construction of the Temple balcony is described as a Devar Torah - “a matter of Torah [law]”. R. Schwarz himself takes cognizance of this point and responds that sometimes the term Devar Torah does not literally mean a mitzvah di’oraita. As evidence for this approach, R. Schwarz cites the gemara in Eruvin 4b which states that there is a “Devar Torah” that if a foreign substance covers the majority of a person’s corporeal surface area, and the person objects to the presence of the foreign substance, the person is unable to immerse in a mikveh. Yet, in context, the gemara teaches that this law is not derived from written scripture, but rather from a halakhah limosheh misinai. Thus, argues R. Schwarz, “Devar Torah” does not necessarily mean a commandment of the Written Torah, and so it does not support R. Feinstein’s claim that the Temple balcony is biblically required as a function of Leviticus 19:30. Indeed, observes R. Schwarz, the halakhah is that any doubt regarding a halakhah limosheh misinai (e.g. a doubt regarding orlah fruit in the Diaspora) is adjudicated to the side of leniency, demonstrating that a halakhah limosheh misinai is markedly different that a law derived from the Written Torah. Similarly, the gemara in Berakhot 19b states that there is a “Devar Torah” that a tent with the volumetric space of a handbreath by a handbreadth by a handbreath and which hosts a corpse is capable of shielding the outside world from the corpse contamination. Yet, here as well, the gemara is actually referring to a halakhah limosheh misinai. However, with all due reverence to R. Schwarz, it would seem to this writer that R. Schwarz’ references to Eruvin 4b and Berakhot 19b actually strengthen R. Feinstein’s case. A halakhah limosheh misinai is assuredly a matter of Torah law, i.e. the direct commandment of the Almighty. A halakhah limosheh misinai does not appear in the Written Torah, but it is still integral to the Torah, being featured by the Oral Torah. [It is true that any doubt regarding a halakhah limosheh misinai is to be adjudicated to the side of leniency, but that principle itself is part and parcel of the Oral Torah.] As such, there is cogent reason to interpret “Devar Torah” in the Yerushalmi Sukkah 5:2 as a matter of Torah law, as distinct from rabbinic legislation. And since, in the case of Sanctuary decorum, it is clear that there is a verse in the Written Torah which governs the worshipper’s behaviour, viz. Leviticus 19:30, there is no need to interpret Devar Torah in the Yerushalmi Sukkah 5:2 as a reference to a halakhah limosheh misinai. Rather, it can be understood in a straightforward manner: there is a mitzvah di’oraita, based on Leviticus 19:30, for ladies and gentlemen to be separated by means of a balcony when they are assembled in the Temple. And even though the prophecy of Zechariah only contains an indirect reference to the need for a partition, the prophet is offering a gilui milta – an illuminating reflection – on what Leviticus 19:30 actually means in terms of practical application. And this vindication of R. Feinstein’s position seems all the more strengthened by the Yerushalmi in Ma’aser Sheni 5:3 cited by the Reevivot Efrayim, as discussed earlier in the text. 4

Ran Al HaRif, Megillah 8a (in the pagination of the Rif), s.v. uman disharei.

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It seems to this writer that a defense to R. Feinstein’s equation may be adduced from Tosafot to Shevu’ot 7b (s.v. ba’avodah zarah hu omer lima’an tamei et mikdashi), who translate the term Mikdashi in Leviticus 20:3 as “the Sanctity of My Name”. Thus, one could argue that when the members of the congregation are occupied with the

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R. Feinstein’s position is also challenged by R. Yehudah Herzl Henkin in the latter’s Shu”t Benei Vanim I, no. 3, where R. Henkin infers from Rashi to Sukkah 51b (s.v. kera ashkechu) that a Temple partition is to be reckoned as a mitzvah dirabbanan, since Rashi calls the requirement “a fence”. And all the more so, in the synagogue a partition is certainly no more than a mitzvah dirabbanan6. R. Henkin further torpedoes the conclusion of R. Feinstein by citing the commentary of the Maharsha in his Chiddushei Aggadot to Sukkah 51b, where the Maharsha explains that, in justifying the construction of the gallery, the gemara means to say that there is no prohibition against tampering with the Temple blueprints when the purpose of the renovation is to avoid a prohibition unrelated to the sacrificial service. One may directly infer from the Maharsha, says R. Henkin, that the partition was a dirabbanan requirement whose purpose was to avoid a prohibition unrelated to the sacrificial service7. sanctity of the Name of G-d, by reciting kaddish, kedushah or barkhu, they are present in a virtual Temple and are biblically bound by the commandment “you shall revere My Sanctuary” canonized by Leviticus 19:30. As for R. Feinstein’s citation of the Ran, it seems to this writer that R. Feinstein’s actual proof stems from the Ran’s conspicuous avoidance to offer the obvious explanation that the Sages simply endowed the synagogue with sanctity on account of the biblical sanctity of the Temple, seeing as a synagogue is considered a “Minor Sanctuary” by Ezekiel 11:16 (as per Megillah 29a). The fact that the Ran insisted instead on attributing the rabbinic decree to ordain a synagogue with sanctity to the special prayers that are recited therein (i.e. kaddish, kedushah and barkhu) reveals that the sanctity of those prayers is actually biblical in nature. [The axiomatic assumption of R. Feinstein is that the Sages would only decree rabbinic sanctity in a synagogue on account of a pre-existing biblical sanctity.] See also R. Ben-Zion Meir Chai Uziel in his Shu”t Piskei Uziel no. 49, who interprets the Ran differently (and more stringently) than R. Feinstein. R. Uziel asserts that the Ran actually means that Leviticus 19:30 applies with biblical force in the contemporary synagogue. Thus, for R. Uziel it is obvious that the obligation of a partition in the contemporary synagogue is just as great as the obligation of a partition in the Temple. In any event, quite apart from the Ran’s opinion, the question of whether the sanctity of a contemporary synagogue is biblical or rabbinic in nature is a well-trodden dispute among the Rishonim. See Encyclopedia Talmudit, III, p. 194, for a digest of views on this subject. [The point of R. Feinstein, however, is to claim that even those Rishonim who hold that the sanctity of a synagogue is only rabbinic in nature should agree that during kaddish, kedushah or barkhu the sanctity becomes biblical in nature.] 6

It seems to this writer that R. Feinstein’s position could be defended by explaining that Rashi means that the essence of the mitzvah di’oraita is to establish a fence. Indeed, R. Yitzchak Ya’akov Weiss in his Shu”t Minchat Yitzchak II, no. 20, interprets Rashi to Leviticus 19:2 in precisely such a manner. Thus, the word “fence” in Rashi’s commentary does not mean a mere safeguard. Rather, the word “fence” means the partition itself, and the partition itself is the cheftza of the mitzvah di’oraita in question. Alternatively, even if one translates “fence” as a mere safeguard, one might still defend R. Feinstein by positing that the Sanctuary partition is indeed a mitzvah di’oraita but that the purpose of this mitzvah di’oraita is to safeguard against the violation of other biblical prohibitions. The justification for such a novel suggestion emerges from R. Yitzchak Yosef’s introduction to his Yalkut Yosef, Hilkhot Basar Bichalav, where he describes several cases of biblical interdictions which constitute decrees to safeguard against the violation of other biblical commandments. [E.g., the prohibition against possessing chametz on Passover is a biblical safeguard against eating chametz on Passover.] Thus, the fact that Rashi employs the term “a fence” does not necessarily preclude the possibility that it may be a mitzvah di’oraita. 7

R. Feinstein himself acknowledges the formidable difficulty posed by the inference that may be drawn from the Maharsha, but defends himself by dismissing that inference in light of the gemara in Chullin 83b which invokes the prohibition against tampering with the Temple architecture in the context of covering avian blood, even though that is a context which is entirely separate from the sacrificial service. However, R. Henkin refutes R. Feinstein’s attempted self-defence by observing that the covering of avian blood is necessarily a natural consequence of sacrificing birds, and is one that cannot be compared to the question of constructing a ladies’ gallery in the Temple. [After all, it is inevitable that blood will emerge from sacrificial birds during melikah. By contradistinction, the

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Ultimately, then, two fundamental arguments are being launched against R. Feinstein’s thesis that a synagogue partition constitutes a mitzvah di’oraita. Perhaps the construction of the Temple gallery did not constitute a mitzvah di’oraita. And perhaps the requirement to maintain decorum in the contemporary synagogue does not constitute a mitzvah di’oraita. Either of these cogent propositions would suffice to neutralize R. Feinstein’s thesis.

sacrificial service does not necessarily result in ladies choosing to congregate in the Temple’s external courtyard. And even the obligation of ladies congregating in the Temple’s external courtyard for Hak’hel once in seven years is unrelated to the sacrificial service.] Nevertheless, despite the cogency of R. Henkin’s attack on R. Feinstein, it seems to this writer that R. Feinstein’s thesis remains sustainable based on Tosafot to Zevachim 33a (s.v. vili’avad) who state that renovations could not be effectuated in the Temple for the sake of facilitating a rabbinic decree against a metzora entering a few paces into the inner courtyard [-a decree which would be designed to prevent the metzora from venturing in further than he is actually permitted (gezeirah shema yarbeh bipisi’ot)]. Yet, a rabbinic decree against a metzora entering a few paces into the inner courtyard is just as unrelated to the sacrificial service as the decision to construct a gallery for the ladies at the Rejoicing of the Water Drawing. In either case the proposed renovation does nothing to facilitate the sacrificial service, but is rather designed to prevent an external transgression (-contamination of the Temple in one case, lack of decorum for the Temple in the other). This clearly contradicts the inference drawn from the Maharsha, and upholds the thesis that the construction of a gallery in the Temple constituted compliance with a mitzvah di’oraita (in contradistinction to the proposed renovations for the sake of gezeirah shema yarbeh bipisi’ot). Admittedly, one could counter by positing a subtle distinction between the cases of the metzora and the ladies’ gallery, even though both of those instances involved the avoidance of an external prohibition. The distinction would lie in the fact that the proposed renovation in the context of the metzora would allow the metzora to stand outside the courtyard wall and insert his hands through an aperture in the wall in order to perform semikhah on the head of his asham sacrifice which is standing inside. Thus, although the purpose of the proposed renovation was to avoid an external transgression unrelated to the sacrificial service, the actual logistics of the proposed renovation would have indeed involved a change in the sacrificial service. Still, it seems questionable whether such a renovation can be termed as being “for the sake of the sacrificial service”, and so there remains a safek in favour of the plausibility of R. Feinstein’s thesis. [Phrased alternatively, in the case of the metzora, the contemplated renovation is designed to solve a problem one degree removed from the sacrifical service, whereas in the case of the Rejoicing of the Water Drawing, the actualized renovation is designed to solve a problem two degrees removed from the sacrificial service. How so? In the case of the metzora, the sacrificial service dictates that semikhah be performed. A consequence of the semikhah is that the owner might venture further into the courtyard than he is actually permitted. Thus, the putative renovation would solve a problem that is one degree removed from the service. In the case of the Rejoicing of the Water Drawing, the daily water libation service in the Temple on the holiday of Sukkot necessitates a celebration, pursuant to the injunction “you shall draw water with joy” (Isaiah 12:3) as expounded by the gemara in Sukkah 48b. The celebration, in turn, may lead to lack of decorum in the Sanctuary. Thus, the renovation would solve a problem that is two degrees removed from the service. Accordingly, it seems questionable why there should be a difference whether the problem being solved is one degree or two degrees removed from the service, and so there remains a safek in favour of R. Feinstein’s thesis.] At the same time, it must be noted that the Chazon Ish (Kodashim 8:4) rejects Tosafot’s entire approach to the issue of gezeirah shema yarbeh bipisi’ot, and posits instead that the Sages of the Talmud simply possessed an oral tradition that tampering with the architecture of the Temple for the sake of semikhah is contraindicated. In effect, the Chazon Ish voids the entire sugya in Zevachim from any meaning imputed to it by R. Feinstein, which leads to the inevitable conclusion that R. Feinstein is refuted by the Maharsha. Nevertheless, the Chazon Ish is himself contradicted by R. Ezekiel Landau in his Doresh Litzion no. 11 (subsection derekh nachash alei tzur, paragraph that begins with the words vi’omer ani lifee hamaskana). R. Landau appears to have fully anticipated the Chazon Ish’s challenge to Tosafot [obviously well over a century before the Chazon Ish was even born] and to have resolved it quite smoothly, thus upholding the words of Tosafot, and sustaining the plausibility of R. Feinstein’s thesis. Thus, it remains the case that there exists a safek that perhaps the construction of the ladies’ gallery in the Temple constituted a mitzvah di’oraita, as R. Feinstein indeed rules.

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It would appear to this writer that each of these questions remains an insoluble safek, and so R. Feinstein’s thesis emerges as being a safek possibility8. B. ABSOLUTENESS OF DEMOGRAPHIC SEPARATION To say that there is a mitzvah for the Temple [and, by extension, the synagogue] to possess a partition does not necessarily mean that the demographic separation orchestrated by the partition must be one hundred percent absolute. The precise extent of the absoluteness is actually a matter of some controversy.

8 As for the cogent objections raised by R. Feinstein’s opponents that have been outlined in the text, see supra footnotes nos. 2, 3, 5, 6 and 7 for equally cogent solutions. In a telephone conversation with this writer on January 31, 2008, R. J. David Bleich cogently remonstrated that this conclusion would lead to the reductio ad absurdum that all of Jewry during the days of the first Temple was possibly guilty of violating a biblical commandment. [After all, the balcony described by the gemara in Sukkah 51b was only constructed during the second Temple era. And so, throughout the first Temple era, whenever Jews would congregate in the external courtyard (e.g. for Hak’hel or for the Rejoicing of the Water Drawing), they were possibly transgressing Leviticus 19:30.] Although one might technically respond by invoking the gemara in Chullin 7a to the effect that divine providence can arrange for a scholar of a later generation to discover a chiddush that completely escaped the attention of earlier generations (“makom hinichu li avotai lihitgader bo”), R. Bleich correctly insists that it is formidably difficult to apply this dictum when it results in the incrimination of previous generations. Perhaps one may resolve this difficulty on the basis of the Sefer Yere’im no. 324 and the Minchat Chinukh (mitzvah no. 294, top of p. 266 in the Makhon Yerushalayim edition), who both declare that the mitzvah of Leviticus 19:30 has been assigned to the Sages for definition. Thus, one may postulate that the Sages of the second Temple realized that it is necessary to define Leviticus 19:30 as mandating the existence of a balcony in the Sanctuary, whereupon it thenceforth became binding Torah law (without retroactively condemning the Jews of the first Temple era). {In support of this approach, it may be noted that there are at least four other precedents in halakhah where a view has been expressed by the Rishonim that the Torah empowers the Sages to define the parameters of the di’oraita law. Firstly, regarding the prohibition against labor on Chol Hamo’ed, many authorities (catalogued by the Mishnah Berurah in his Bi’ur Halakhah to Orach Chaim no. 530) submit that it is di’oraita in origin and that the Torah empowers the Sages to define its parameters. The Bi’ur Halakhah concludes that, according to these poskim, any doubt that arises regarding the laws of Chol Hamo’ed must be adjudicated to the side of stringency, seeing as safek di’oraita lichumra. Secondly, regarding the non-culinary afflictions of Yom Kippur, the Mishnah Berurah to Orach Chaim no. 611 (se’if kattan no. 3) cites several authorities who contend that these restrictions are di’oraita in origin. The Mishnah Berurah concludes that, according to these poskim, any doubt that arises regarding the laws of the nonculinary afflictions must be adjudicated to the side of stringency, seeing as safek di’oraita lichumra, In his Sha’ar Hatziyun (se’if kattan no. 1), the Mishnah Berurah cites the Ran as having asserted that the Torah empowers the Sages to define the parameters of these non-culinary afflictions. Thirdly, regarding the permission of a lady to remarry when her insolubly missing husband is reported to be dead on the basis of a solitary witness, three Rishonim explain that the Torah empowers the Sages to define the parameters of credible testimony: Re’ah quoted by the Ritva to Yevamot 88a (s.v. mitokh), the Ritva himself (ibid.), and the Nimukei Yosef (ibid.). According to the Chazon Ish (Even Ha’ezer 22:3), there is even a fourth Rishon who espouses this position: Tosafot to Yevamot 88a (s.v. mitokh). [However, the Chazon Ish is disputed by R. Samuel Halevi Wosner in the latter’s Shu”t Shevet Halevi IV, no. 163.] Fourthly, the Beit Yosef, toward the end of Yoreh De’ah no. 178, expresses the possibility that Leviticus 18:3 is a Torah law whose definitional parameters have been assigned to the Sages for purposes of definition. [Additionally, although it is a thesis not found among the Rishonim, it may be noted that the Chazon Ish (Orach Chaim 39:1) demonstrates that the definitions of the shi’urim (e.g. the mathematical measurement of a kizayit) are all Torah laws whose definitional parameters have been handed over to the Sages to decide. Indeed, as a support to the Chazon Ish, this writer would point to the gemara in Yoma 80a which indicates that a Sanhedrin can alter the definition of a kizayit.]}

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R. Feinstein, in his Shu”t Iggerot Mosheh, Orach Chaim I, nos. 39 (final paragraph) and 41 (paragraph that begins with the word utimeihani) demonstrates that it is actually permissible for one lady to be present in the gentlemen’s section during services. [And, evidently, the reverse is also true: it is permissible, according to R. Feinstein, for one gentleman to be present in the lady’s section during services.] R. Feinstein proves this from the story of Eli the high priest and Chanah who were assembled together in the Mishkan sanctuary without any partition between them, as is recorded in I Samuel 1:9-18. Furthermore, Tosafot to Kiddushin 52b, s.v. vikhi ishah ba’azarah minayin, say that when a lady needs to bring an offering in the Temple, e.g. she is a nezirah, she may enter the Temple courtyard to do so. But, reasons R. Feinstein, there are surely plenty of gentlemen (i.e. the kohanim) already present in the courtyard when the nezirah enters the courtyard. Thus, we see that one lady may be present among many gentlemen in the Sanctuary [and likewise one gentlemen may be present among many ladies in the Sanctuary.] R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, no. 4, strengthens this permission, authorizing the presence of one or two ladies in the gentlemen’s section. In addition to the sources marshaled by R. Feinstein, R. Henkin quotes the gemara in Megillah 23a (codified by Shulchan Arukh Orach Chaim 282:3) that, in theory, a lady may be called to the Torah when there are seven aliyot on the Sabbath. Obviously, reasons R. Henkin, giving an aliyah to a lady necessitates her entering the gentlemen’s section, and yet there is no problem with such a logistical arrangement. R. Henkin feels that it is equally evident that – in theory – even two consecutive aliyot may be given to ladies, meaning that – in effect – there will be two ladies simultaneously present in the gentlemen’s section. Although R. Feinstein does not specifically address the situation of two ladies, it seems to this writer that he would indeed agree with R. Henkin that even the presence of two ladies is permitted, in light of R. Feinstein’s pronouncement (op. cit., at the end of the latter paragraph) to the effect that “the main prohibition is where many [harbeh] gentlemen and ladies have gathered”. The term harbeh implies the presence of at least three individuals, as is evident from the term reshut harabim employed in the context of the laws of damages and ritual purity, as well as the term al da’at rabim in the context of vows. [See, for example, Gittin 46a.] Thus. according to both R. Feinstein and R. Henkin, there is only a need for a partition when there are three gentlemen and three ladies gathered together in the Sanctuary. But three gentlemen with one or two ladies, or three ladies with one or two gentlemen, is permissible without any partition. However, there is a more stringent approach. As R. Henkin himself notes, R. Eleazar Fleckles, in his Shu”t Teshuvah Me’ahavah II, no. 229 (subsection no, 10), refuses to permit admission of even so much as one lady inside the gentlemen’s section. [And, surely, R. Fleckles would prohibit admission of so much as one gentleman in the ladies’ section.] Likewise, as cited in section A above, R. Efraim Greenblatt, in his Shu”t Reevivot Efrayim V, no. 601, quotes the Gilyonei Hashas to Kiddushin 52b to the effect that – based on the Yerushalmi Ma’aser Sheni 5:3 – it is prohibited for even so much as one lady to be present among gentlemen in the Sanctuary. [And, likewise, it would appear that it would be prohibited according to this source for even one gentleman to be present among ladies in the Sanctuary.] Arguably, one could impute such a position [as the Gilyonei Hashas in fact does] to Rashi in Kiddushin 52b, s.v. vikhi ishah ba’azarah minayin. The problem, however, is how this stringent camp would deal with the aforementioned lenient proofs from Chanah, the nezirah and ladies receiving an aliyah. It would appear to this writer as follows. Even according to the stringent camp, there is only a prohibition for a lady to enter the gentlemen’s area when there are at least three gentlemen. But if there is only one or two gentlemen, then one or two ladies may also be present. This explains the story of Chanah, where 7

only one lady and one gentleman were present. Likewise, when a nezirah needs to bring her offering, all the kohanim (except for two) who have to be evacuated from the courtyard. And for ladies to receive an aliyah, the Torah scroll would have to be transported to the ladies’ side. In summary, then, there are two approaches to the absoluteness of the demographic separation that must orchestrated by a synagogue partition. According to Tosafot, the Iggerot Mosheh and the Benei Vanim, there is a need for a sanctuary partition when there are both three ladies and three gentlemen. Thus, one or two ladies may be present on the gentlemen’s side during synagogue services, and one or two gentlemen may be present on the ladies’ side during synagogue services. According to the Talmud Yerushalmi, the Teshuvah Me’ahavah, the Reevivot Efrayim, and – in the opinion of the Gilyonei Hashas – Rashi, there is need for a sanctuary partition when there are either three gentlemen or three ladies. Thus, there cannot be even so much as one lady on the gentlemen’s side during synagogue services, and there cannot be even so much as one gentleman on the ladies’ side during synagogue services. C. SPECIFICATIONS OF THE PARTITION The exact specifications of a synagogue partition are subject to a three-way dispute: (a)

R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, nos. 1-2, rules based on the Rambam in Hilkhot Tuma’t Tzara’at 10:12 that the mechitzah for a synagogue is the same mechitzah which is designated by a halakhah limosheh misinai to suffice for the laws of Shabbat, Sukkah, and Kil’ayim, i.e., a ten handbreadth high partition. Thus, he requires a geographic barrier9.

(b)

R. Moshe Feinstein in his Shu”t Iggerot Mosheh, Orach Chaim I, no. 39 and again in Orach Chaim III, no. 23 requires an eighteen-handbreadth high partition. Twice in the first responsum, and twice again in the second responsum, does R. Feinstein indicate that the partition must be one across which it is impossible to move one’s hand. Thus, R. Feinstein requires a kinaesthetic barrier10.

9

R. Henkin further reports that this was the opinion of his grandfather R. Joseph Elijah Henkin, as well as that of R. Joseph Ber Soloveitchik (at least in circumstances of duress). [In the appendix to that volume, an exchange of letters between R. Yehudah Herzl Henkin and R. Menasheh Klein appears, debating this very point.] Similarly, R. Asher Lopatin of Chicago reports that this was the position of R. Aharon Soloveitchik (Anshe Sholom B’nei Israel News, Issue VIII, Vol. II, Summer 5759 [available at http://www.asbi.org/news/newssum99.pdf].) In a parallel manner, but more limited in its scope, R. Hershel Shachter, on pp. 46-47 of his Mipininei HaRav, reports that this was position of R. Joseph Ber Soloveitchik, with the caveat added that it is to be applied only in circumstances of duress. It is noteworthy that the gemara in Pesachim 6a requires only a ten handbreadth partition between oneself and a gentile’s chametz that is in one’s house on Passover, not a kinaesthetic barrier or a visual barrier. Perhaps this is a support to the geographic barrier camp. Another support might potentially be adduced from Sukkah 7a-b, where Rava introduces the chiddush that although a sukkah normally requires three walls to be kosher, on the Sabbath of Sukkot one may rely upon pasei beira’ot covered by s’kakh or on a mavoi mefulash that is adorned by a lechi and is covered with s’khakh (notwithstanding the absence of three proper walls in either of those cases). The rationale is one of migo. Namely, since the walls are good enough to serve as mechitzot for the Sabbath, they are also good enough to serve as walls for a sukkah. Perhaps one could argue that, mutatis mutandis, a ten-handbreadth partition suffices in a synagogue for prayer, since (migo) a ten-handbreadth high mechitzah is sufficient for the laws of domains on the Sabbath, the architecture of a sukkah and the planting of kil’ayim. 10

This position is also espoused by R. Leib Baron in his Birkat Yehudah no. 5, R. Yechiel Ya’akov Weinberg in his Shu”t Seridei Esh II, no.14 and R. Shaul Yisraeli in his Shu”t Bimar’eh Habazak (exact reference N.A.). [However,

8

In a subsequent and cryptic responsum (Orach Chaim IV, no. 29), R. Feinstein permits small windows with apertures of three inches or less. Although R. Feinstein never explains why this is so, the reason appears to be that an aperture of three inches or less is insufficiently large to admit one’s hand. After all, in Orach Chaim I, no. 136, R. Feinstein defines a cubit as being 21.25 inches, which would make a handbreadth equal 3.54 inches11. Thus, it is impossible (according to R. Feinstein’s reckoning) for a hand to traverse an aperture of three inches or less. In any event, it is interesting to note that even this leniency (viz. an aperture of three inches or less) is discouraged by R. Feinstein if the congregation is composed of “those who fear Hashem Yitbarakh, and those who are Benei Torah”. Thus, it emerges that R. Feinstein disallows the employment of lavud for purposes of an eighteen handbreadth high barrier. Indeed, it is only logical for R. Feinstein to disallow the application of lavud, since, if lavud could be applied, then gud asik mechitzatah should also be applied12, in which case a R. Baron adds halakhah vi’ein morin ken. Namely, considerations of policy for the sake of advancing the congregation’s spiritual welfare dictate that one not simply be satisfied with a an eighteen-handbreadth high barrier. Rather, one should implement position (iii) outlined further in the text, as a matter of practical policy.] It seems to this writer that a novel proof may be adduced in favor of the kinaesthetic barrier theory from the Mishnah Berurah and the Arukh Hashulchan in their respective treatments of Shulchan Arukh Orach Chaim 55:14. The Shulchan Arukh rules that a solitary individual who is separated by a partition from nine other gentlemen may combine with them to form a quorum, provided that there is a window through which the solitary individual’s face can be seen by the others. The Mishnah Berurah (se’if kattan no. 52) deduces from this that in the case that a solitary gentleman is located in the ladies’ section of the sanctuary, and is separated from the other nine individuals [who are located in the gentlemen’s section] by the synagogue partition, yet his face is visible to the other gentlemen from a window in the partition, he can combine with them to form a quorum. The Mishnah Berurah continues, however, that it is preferable for the gentleman “to descend” from the ladies’ section if he can easily do so, and thereby join his nine colleagues in the gentlemen’s section of the synagogue. By contradistinction, the Arukh Hashulchan (se’if kattan no. 20) emphatically dismisses the possibility of combining a gentleman located in the ladies’ section. The Arukh Hashulchan claims that the Shulchan Arukh only countenances synthesizing the outlying Jew with the inside nine when the outlying Jew is literally outdoors, i.e. in the street or in the courtyard immediately adjacent to the synagogue, and is peering through the window. But when the outlying Jew is in a separate building, which is effectively the case when he is situated in the ladies’ section, his peering through the window in the ladies’ section is inadequate to combine him with the other nine gentlemen. Seemingly, these remarks of the Mishnah Berurah and the Arukh Hashulchan reveal that they both understood the nature of a synagogue partition to be one in which the faces, and only the faces, of people on the other side are visible. This apparently serves to vindicate the position of R. Moshe Feinstein. [See, however, the final paragraph of infra, footnote no. 14, for a potential deflection of this proof.] 11

For a list of twenty-six other mathematical calculations as to the size of a handbreadth compiled by R. J. David Bleich, see pp. 97-99 of Tradition 38:4. Incidentally, it seems to this student that the largest two measurements among the list presented by R. Bleich (viz. that of Shu”t Chatam Sofer, Orach Chaim no. 181 and the Tosfot Yom Tov to Tractate Pe’ah 6:6) may be neglected for purposes of practical halakhah. After all, R. Feinstein himself (loc. cit.) suggests that the zoll measurement in the time of the Chatam Sofer may have been smaller than its equivalent in contemporary German measurements. And the Tosfot Yom Tov in question seems to have been focusing upon mass rather than volume, and was operating with a liquid possessing a density greater than that of water. In an oral communication with this student, R. Bleich acknowledged the possible plausibility of this student’s thesis, such that the largest credible handbreadth for purposes of practical halakhah (when it results in a stringency) would become that of R. Shmuel Salant cited by the Chazon Ish (Orach Chaim 39:5), viz. 10.0 cm [= 3.937 inches]. 12

Lavud dictates that gaps less than three handbreadths in size are virtually filled. Gud asik mechitzatah dictates that any ten-handbreadth high wall virtually extends upward indefinitely, ad coelum. Each of these two principles represents a halakhah limosheh misinai, as per the gemara in Eruvin 4b.

9

ten-handbreadth barrier would suffice in the first place! The very nature of R. Feinstein’s demand for an eighteen-handbreadth high partition ipso facto means that lavud cannot be invoked. Obviously, then, the eighteen handbreadths of height must be so solid that motion across by a hand is impossible. The most R. Feinstein would ever allow is an aperture of three inches or less, and even that is to be discouraged if the congregation is one which is spiritually elevated. [It should also be noted that since R. Feinstein prohibits gaps that exceed three inches, the barrier must not only be a solid eighteen handbreadths high, but it must evidently also solidly span the entire sanctuary from wall to wall, without a horizontal break of three inches or more.] Nevertheless, R. Feinstein introduces a leniency into the kinaesthetic barrier camp’s equation in Orach Chaim III, no. 23, where he observes that nowadays a five foot barrier suffices to prevent moving one’s hand across the partition, given the contemporary stature of human beings. Therefore, he directs that one should not protest a synagogue which relies on a five foot high mechitzah, even though five feet equals slightly less than his preference for eighteen handbreadths. In his next responsum (Orach Chaim III, no. 24), R. Feinstein even suggests the further leniency that perhaps fifty-eight inches suffices to accomplish the kinaesthetic barrier as well13. But under no circumstances will R. Feinstein tolerate a partition less than fifty-eight inches in height. (c)

In his Shu”t Divrei Yo’el, Orach Chaim no. 10, R. Joel Teitelbaum takes issue with R. Feinstein, and submits that the partition must be a visual barrier. Thus, it must be opaque and higher than any human being present14. However,

13

Surprisingly, in his subsequently published volume of Orach Chaim IV, R. Feinstein features three responsa regarding a synagogue partition (nos. 30-32) which mention sixty inches as the baseline requirement, without any reference to his previously published suggestion that fifty-eight inches might suffice. The matter would appear to require further analysis, but in any event, the practical application of this question is clearly open to empirical resolution, since in all of his responsa R. Feinstein definitively rules that the minimum height of the synagogue partition is that which exceeds the shoulder height of the ladies in synagogue. Thus, on any given day in synagogue, one could simply compare the height of the partition to the height of the tallest lady’s shoulders, to assess whether or not the synagogue partition is valid according to R. Feinstein. [Since it is obviously inconvenient to suddenly discover in the midst of services that the synagogue partition is disqualified on account of the presence of tall ladies, it would seem prudent to this writer for a synagogue that follows the kinaesthetic barrier camp to avoid reliance upon a fifty-eight inch high partition, and rather opt for a sixty inch (or even better yet, an eighteen handbreadth high) partition, so that the synagogue will be capable of accommodating unusually tall ladies.] It should also be noted that, as described in section B above, there is a dispute among the poskim whether the demographic separation that is orchestrated by the synagogue partition must be absolute. According to Tosafot, the Iggerot Mosheh and the Benei Vanim, it is permissible for one or two ladies to be present in the gentlemen’s section during services. Accordingly, the presence of one [or two] unusually tall ladies would not disqualify the synagogue partition. 14

This position is also espoused by R. Elijah Meir Bloch (whose responsum is published by R. Chanania Yom Tov Lipa Deitsch on pp. 53-59 of the latter’s Taharat Yom Tov VI), R. Raphael Blum in his Tal Hashamayim (introduction, p. 28), R. Menasheh Klein in his Shu”t Mishneh Halakhot VII, no. 12, R. Aharon Kotler in his Shu”t Mishnat Rabbi Aharon, Orach Chaim no. 13 (penultimate paragraph), R. Simchah Rabinowitz in his Piskei Teshuvot to Mishnah Berurah II, Orach Chaim no. 151 (subsection no. 4), R. Moshe Schick in his Shu”t Maharam Shik, Orach Chaim no. 77, R. Menachem Mendel Schneersohn in his Sha’arei Halakhah Uminhag, Orach Chaim I, no.

10

R. Teitelbaum concedes that it is permitted (and indeed appropriate) for the ladies to be capable of seeing the gentlemen, just like in the Temple, and so a one-way-glass partition is in order15. Most impressively, a newly discovered manuscript, published as Shu”t Rabbi Akiva Eger Hachadash IV, Orach Chaim no. 13 (subsection no. 5), attributes this position to R. Akiva Eger. That responsum is truly remarkable both because it was written only four years after the Chatam Sofer's original responsum canonizing the mitzvah obligation of a syangogue partition (Choshen Mishpat no. 190) and because R. Akiva Eger is none other than the father-in-law of the Chatam Sofer. Assuming that this newly discovered manuscript is accurate, R. Akiva Eger's words support the visual barrier camp16. It seems to this writer that an adjudication of this dispute is virtually impossible, for each camp presents an equally credible piece of evidence in its favor. Each of the three camps is to be commended for having illuminated a legitimate approach to the Chatam Sofer’s original responsum. 92, R. Yom Tov Halevi Schwarz in his Ma’aneh La’iggerot nos. 18-20 and 63, R. Benjamin Silber in his Shu”t Az Nidbiru XII, no. 48, R. Chaim Sofer in his Shu”t Machaneh Chaim III, no. 10, R. Moshe Stern in his Shu”t Be’er Mosheh IV, no. 147 (subsection no. 29) and R. Eliezer Yehudah Waldenberg in his Shu”t Tzitz Eliezer VII, no. 8 and again in his Shu”t Tzitz Eliezer XX, no. 7. Letters attributed to the Chazon Ish and to R. Yitzchak Ya’akov Weiss appear in the Or Yisra’el journal (Tevet 5759, p. 119) and the Likutei Teshuvot Minchat Yitzchak (no. 14), respectively, which champion this position as well. A variation of this position is offered by R. Malkiel Tzevi Halevi Tannenbaum in his Shu”t Divrei Malkiel V, no. 18. R. Tannenbaum believes that reverence in the Sanctuary is achieved when either the ladies’ section is located on a balcony (even though it is visible), or – if located on the same level plane as the gentlemen’s section – when it is obscured by a visual barrier. Thus, in effect, R. Tannenbaum’s approach serves as a compromise between the kinaesthetic barrier and visual barrier camps. If R. Tannenbaum’s approach is accepted, then the putative support to the kinaesthetic barrier theory that is gleaned from the words of the Mishnah Berurah [as per supra footnote no. 10] is thereby deflected, since the Mishnah Berurah was clearly only speaking of a balcony situation. Although support in favor of the kinaesthetic barrier camp was also marshalled from the Arukh Hashulchan [supra footnote no. 10], one could perhaps argue that the Arukh Hashulchan also only envisaged a balacony situation – although this latter point is not entirely clear. 15 In addition to the sources marshalled by R. Teitelbaum to this end, it seems to this writer that a further proof exists from the Taz to Shulchan Arukh Orach Chaim no. 82 (se’if kattan no. 2) who approvingly cites the Maharshal to the effect that a lady who possesses the status of a niddah is advised to avoid looking at the open Torah scroll when it is raised during services. Evidently, the Maharshal took it for granted that a lady attending synagogue is theoretically capable of beholding the Torah scroll with optical clarity. Since, presumably, the Torah scroll is read in the gentlemen’s section, the Maharshal must have envisaged the possibility of a lady seeing the gentlemen. Admittedly, however, this proof might not be acceptable to all poskim, thanks to the dispute cited in section B above regarding the absoluteness of the demographic separation that must be orchestrated by the synagogue partition. According to Tosafot, the Iggerot Mosheh and the Benei Vanim, it is permissible for one or two ladies to be present in the gentlemen’s section during services. Perhaps, then, the Maharshal’s advisory was specifically directed to those one [or two] ladies. In any event, R. Teitelbaum’s own sources are certainly convincing in making the case that even according to the visual barrier camp, it is permitted for the ladies to be capable of beholding the gentlemen’s section. R. Teitelbaum adds that a synagogue should, in fact, make this capacity available to the ladies. 16

However, in a telephone conversation with this writer on January 31, 2008, R. J. David Bleich cogently noted that R. Akiva Eger’s remarks, in context, could be plausibly construed as enunciating a policy that was encouraged for the Jewish residents of Posen rather than an actual halakhic prescription.

11

The visual barrier camp correctly points to the practice among Jews since time immemorial to build a visual barrier in the synagogue. This sociological norm, it is cogently argued, constitutes a sacrosanct mesorah, and must have been the partition to which the Chatam Sofer referred. Apparently reinforcing this thesis are four Rishonim who specifically identify a visual barrier as being the goal in the construction of the gallery in the Temple’s external courtyard: the Rambam in his Peirush Hamishnayot to Sukkah 51a, the Piskei Rid in his commentary on the gemara in Sukkah 51b, the Me’iri in his commentary upon the gemara in Sukkah 51b, and the Mordekhai to Tractate Sanhedrin, no. 684. R. Yom Tov Lipman Heller, in his Tosfot Yom Tov commentary to Sukkah 51a, also adopts this approach. The other two camps, however, correctly observe that the Rambam (Hilkhot Lulav 8:12) conspicuously neglects to mention obstruction of vision as a necessary specification for the partition constructed in the courtyard, insisting only that the purpose of that partition was to prevent a mixture. As for how avoidance of a mixture is to be defined, the kinaesthetic barrier camp understands the narrative recorded in Sukkah 51b to be declaring that a standard geographic barrier is inadequate, since the Temple courtyard was always separated from the surrounding Temple Mount by a formidable wall (which assuredly was more than sufficient to constitute a geographic barrier), and yet the Sages realized that this was inadequate as a divider for purposes of achieving reverence in the Sanctuary, and that only a balcony would suffice. The defining feature of a balcony is that it serves as a kinaesthetic barrier. By contradistinction, the geographic barrier camp conjectures that the Rambam must have envisaged the very same eschewal of mixing that he defines in the context of ostracizing an individual afflicted with tzara’at, i.e., a ten-handbreadth barrier, since in both cases the Rambam employs the Hebrew term irbuv. Evidently, then, the Rambam may be equally understood as supporting the conclusion of the geographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp17. 17

A similar ambiguity exists in the Midrash compendium known as the Yalkut Shim’oni, in its exposition of Deuteronomy 23:15. The Yalkut Shim’oni directly addresses the requirement for a partition during prayers, elucidating the said verse as follows: “[A gentleman] should not stand among ladies and pray, due to cognition of the ladies. Rather, he should sanctify his camp five cubits in every direction, and if it [viz. the presence of ladies] was inside the camp, he should sanctify it entirely, as it is says ‘The Eternal, your G-d, is walking in the midst of your camp.’ From this we learn that he should stand next to a tree, next to a stone or next to a wall, and pray, as it says ‘And Hezekiah turned his face to the wall etc.’” R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim II, no. 12, cites the Zayin Ra’anan commentary of R. Abraham Abele Gombiner [-the same author as the Magen Avraham commentary on Shulchan Arukh] upon the Yalkut Shim’oni to the effect that a separation of “five cubits in every direction” actually means that the lady may be present within the fifth cubit. In other words, there must be four cubits of space between the gentlemen and ladies. [N.B. The Zayit Ra’anan’s exposition of “five cubits in every direction” appears methodologically confirmed by Tosafot to Berakhot 31b, s.v. imkhah. I am grateful to Kalman Honig for bringing this parallel to my attention, quoting R. Baruch Simon quoting R. Hershel Schachter.] Moreover, elucidates R. Henkin, when the Yalkut Shim’oni proceeds to prescribe that “if it [viz. the presence of the ladies] was inside the camp, he should sanctify it entirely”, this means that when the gentlemen and ladies are present indoors, a buffer of four cubits between them does not help anymore, and a real partition must be constructed between them. Thus, the Yalkut Shimo’ni informs us that a partition is not required when praying outdoors. Instead, a gap of four cubits in every direction between the gentlemen and the ladies suffices. But indoors (e.g. inside a synagogue), a partition is absolutely obligatory. R. Henkin argues that, if a four cubit horizontal space suffices outdoors, then what is of concern is a geographic barrier, and so indoors a ten handbreadth vertical partition should suffice. However, R. Elijah Meir Bloch, in a responsum addressed to R. Chanania Yom Tov Lipa Deitsch and published in the latter’s Taharat Yom Tov VI (p. 57), draws precisely the opposite conclusion from the same Yalkut

12

Another source from the Rishonim of relevance to this question is the Mordekhai to Tractate Shabbat, no. 311, who posits an exception to the rabbinic interdiction against constructing a partition on the Sabbath that serves as a mechitzah hamateret. The Mordekhai rules that one may permissibly interpose a partition between ladies and gentlemen during a lecture on the Sabbath, seeing as the temporary partition exists solely for purposes of privacy, rather than the creation of legally geographic separate domains. The Mordekhai’s decision is codified as normative by R. David Halevi Segal in his Taz commentary to Orach Chaim 315:1, as well as by the Mishnah Berurah (loc. cit., se’if kattan no. 5) and the Arukh Hashulchan (loc. cit., se’if kattan no. 4). The geographic camp cogently notes that the Mordekhai only discusses a partition during a Sabbath lecture but conspicuously fails to address the more ubiquitous problem of the need for a partition during Sabbath prayers. This omission, it is argued, reflects the realization that a partition during prayers indeed classifies as a mechitzah hamateret, and could never be permissibly constructed on the Sabbath. This, in turn, points to the conclusion that the partition for prayers is none other than a ten-handbreadth partition. The other camps, however, [-represented in this regard by a comment attributed to R. Yechezkel Ambramsky by R. Eliezer Waldenberg in the latter’s Shu”t Tzitz Eliezer VII, no. 8-] draw precisely the opposite conclusion from the Mordekhai’s words. The Mordekhai is communicating that even a lecture, which does not require a quorum, should be graced by formidable partition which exceeds ten handbreadths in height, and which guarantees privacy. And how much more so do synagogue prayers, which require a quorum for recitation of matters of sanctity [-and which accordingly trigger Leviticus 19:30], necessitate a formidable partition for the sake of guaranteeing privacy (-either a kinaesthetic barrier or a visual barrier, depending on the school of thought). And whether it is a lecture or a prayer service, the partition may be permissibly assembled on the Sabbath18. Noteworthy in this regard is the analysis of R. Yitzchak Yosef, in his Yalkut Yosef, Dinei Keri’at Sefer Torah Uveit Hakenesset, pp. 223-224, 340-341, who apparently vacillates between these three options, without coming to any definitive conclusion, either. Evidently, each approach has merits that augur in its favor, and it is difficult to resolve this dispute. The only definitive pronouncement offered by the Yalkut Yosef is to quote an oral decision from his father, R. Ovadiah Yosef, to the effect that it is preferable to follow the visual barrier camp. Indeed, in a subsequently published responsum (Shu”t Yabi’a Omer X, Orach Chaim no. 15) dealing with the expansion of a ladies’ section in a sanctuary, R. Ovadiah Yosef twice refers

Shim’oni. He points out that the Yalkut Shim’oni refers to “cognition of the ladies”. In other words, the function of a synagogue partition is to guarantee that each worshipper will be imbued with an elevated pure spirit of focus upon the prayers. He argues that this obviously necessitates a visual barrier. [And although no authority from the kinaesthetic barrier camp has actually addressed the Yalkut Shim’oni, presumably a similar explanation of the Yalkut Shim’oni could be offered on behalf of the kinaesthetic barrier camp. Namely, each worshipper will be enveloped with a pure spirit of focus upon the prayers when a partition which prevents motion is established.] Evidently, then, the Yalkut Shim’oni may be understood as equally supporting the conclusion of the geographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp. 18

In light of the Mordekhai from Tractate Sanhedrin (no. 684) referenced earlier in the text, it would appear to this writer that the Mordekhai in Tractate Shabbat should indeed be interpreted as a support to the visual barrier camp, so as not to generate a contradiction between the Mordekhai in Tractate Sanhedrin and the Mordekhai in Tractate Shabbat.

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to a synagogue partition as having been constructed “properly and according to the law”, yet he declines to define what this means in mathematical terms. Somewhat similarly, R. Samuel Halevi Wosner, in his Shu”t Shevet Halevi I, no. 29, and R. Moshe Sternbuch, in his Shu”t Teshuvot Vihanhagot I, no. 162, express uncertainty as to the precise requirements for a synagogue partition. Thus, it would apparently emerge that the dimensions of a synagogue partition constitute a matter of unresolved sfekot. Perhaps the partition needs to be a geographic barrier, perhaps a kinaesthetic barrier, and perhaps a visual barrier. D. PRACTICAL MANAGEMENT OF UNRESOLVED SFEKOT Based on the insoluble sfekot that have been depicted in sections A, B and C above, it would appear appropriate to invoke the principle codified by the Rema in Shulchan Arukh Choshen Mishpat 25:2 to the effect that an unresolved dispute (where no one side possesses greater evidence than the other side) on a biblical prohibition is adjudicated to the side of stringency, whereas an unresolved dispute on a rabbinic prohibition is adjudicated to the side of leniency. The Rema’s principle is based on a teaching presented by Rabbi Joshua ben Korchah in Avodah Zarah 7a and its subsequent codification in the Rambam, Hilkhot Mamrim 1:5. The Rema’s principle is later cited as normative by the Shakh at the end of Yoreh De’ah no. 242, as well as in R. Jacob Reisher’s Torat Hashelamim commentary to Yoreh De’ah no. 110, where he canonizes the governing principles of the sfek sfeka process. However, the Ritva to Avodah Zarah 7a (s.v. hayu sheneihem) notes that the poskim themselves who participate in the original debate are personally granted a special permission to act in accordance with their respective opinions. Accordingly, only outsiders to the dispute need to concern themselves with the sfekot generated by the dispute, whereas the poskim who are actual actors in the dispute are granted full sovereignty by the Oral Torah to act as their own expert analysis dictate. The Minchat Chinukh (mitzvah no. 78) concurs fully with the Ritva, declaring it as axiomatic and obvious that each decisor behave in accordance with his own conscience, even if it results in a leniency in the context of a controversy over a biblical prohibition. Each posek involved in the dispute is divinely authorized to rely exclusively on his own position. The Chazon Ish (Yoreh De’ah 150:1-5) extends the concept of rabbinic sovereignty a step further. He argues that not only the posek himself, but all the disciples of that posek as well, are authorized to follow his decision, even if that decision cannot be emulated by Jewry at large. The Chazon Ish offers two proofs to his novel thesis. Firstly, the gemara in Eruvin 6b cites a beraita which empowers any person to choose between two clashing poskim (such as the schools of Shammai and Hillel), so long as one consistently adheres to the teachings of that posek. Yet, notes the Chazon Ish, this curiously contradicts Avodah Zarah 7a. Evidently, one must answer that Eruvin 6b refers to a situation where an individual is the disciple of both of the clashing authorities, whereas Avodah Zarah 7a refers to a situation where an individual is not a disciple of either of the clashing authorities. Secondly, the gemara in Shabbat 130a describes a dispute between Rabbi Eliezer and Rabbi Akiva as to whether the preparatory steps to circumcision override the Sabbath. Eventually, the Sages ruled that the halakhah follows Rabbi Akiva that the preparatory steps are forbidden. But until then, the citizens of Rabbi Eliezer’s town would routinely desecrate the Sabbath in accordance with Rabbi Eliezer’s permissive view. Indeed, the gemara reports how those same citizens were actually rewarded with divine blessing for their commitment to the 14

mitzvah of circumcision. Obviously, argues the Chazon Ish, the citizens were aware that Rabbi Akiva opposed Rabbi Eliezer, and yet they nonetheless opted to act leniently in the context of a dispute over a biblical prohibition (i.e. the desecration of Sabbath), in apparent violation of Avodah Zarah 7a. They must have been entitled to do so since they were all disciples of Rabbi Eliezer. However, the Chazon Ish’s extension of rabbinic sovereignty is contradicted by R. Rephael Joseph Chazan in his Chikrei Lev, Yoreh De’ah no. 87 (s.v. gam). R. Chazan notes the apparent incompatibility between Eruvin 6b and Avodah Zarah 7a. He resolves the problem by submitting that Eruvin 6b applies only in a very particular set of circumstances – where one camp possesses greater numbers and the other camp possesses greater genius19. Otherwise, everyone, including any disciple of the poskim participating in the dispute, is obligated to follow the rule outlined by R. Joshua ben Korchah in Avodah Zarah 7a. As for how the Chikrei Lev might address the Chazon Ish’s proof from Shabbat 130a, it seems to this writer that one could cogently submit that the townspeople were simply unaware that Rabbi Akiva opposed Rabbi Eliezer on this matter, or at least they were unaware that Rabbi Akiva possessed sufficiently credible evidence against Rabbi Eliezer to generate a safek di’oraita. Without identifying either the Chazon Ish or the Chikrei Lev, R. Moshe Feinstein visits the topic of rabbinic sovereignty in his Dibberot Mosheh to Tractate Shabbat, no. 10. For the bulk of the recorded lecture, R. Feinstein presents (what is essentially) the Chazon Ish’s thesis, employing precisely the same two sources as did his predecessor. R. Feinstein philosophically rationalizes this chiddush by observing that there are already two well established exceptions to the principle that safek di’oraita lichumra: a doubt regarding orlah fruit in the Diaspora, and a doubt regarding ritual defilement in the public domain. Both classes of doubts are adjudicated to the side of leniency, even though both represent matters of Torah law. Thus, he continues, it is entirely reasonable that the Oral Torah should present yet a third exception, viz., that the students of a posek who is lenient in the context of an unresolved dispute over a biblical question may themselves emulate the lenient ruling of their master. However, in the final section of the lecture, R. Feinstein reverses himself by conceding that it is possible that the sources he has marshaled in favor of this chiddush might not be compelling. Apparently, then, R. Feinstein’s conclusion would seem to be that the matter of adjudicating between the Chikrei Lev and the Chazon Ish remains a safek20.

19

Although not mentioned by the Chikrei Lev, it is interesting in this regard to emphasize that neither the Rif, nor the Rambam, nor the Rosh ever cite the beraita in Eruvin 6b as being normative, whereas they all codify R. Joshua ben Korchah’s position in Avodah Zarah 7a. Indeed, the gemara in Avodah Zarah 7a explicitly states that the halakhah follows R. Joshua ben Korchah against his opponents on this matter. Thus, there is good reason to assign primacy to the ruling of R. Joshua ben Korchah, as does the Chikrei Lev. [Indeed, perhaps one could even submit that R. Joshua ben Korchah disputes the beraita in Eruvin 6b.] 20

R. Feinstein revisits the topic of rabbinic sovereignty in his Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 100 (subsection no. 4). As far as this writer can discern, an absolute resolution to the question at hand does not arise from this latter source, because R. Feinstein does not find it necessary to clearly address which side of the dispute between the Chazon Ish and the Chikrei Lev he accepts halakhah lima’aseh. Indeed, R. Feinstein refers his interlocutor to examine the previously published treatise in the Dibberot Mosheh, Tractate Shabbat, no. 10. Indeed, the conclusion that R. Feinstein remains uncertain about this matter – and may possibly be stringent – is confirmed by his original introduction to the very first volume of Iggerot Mosheh. There, R. Feinstein explains that the citizens of Rabbi Eliezer’s town described by Shabbat 130a were rewarded because they were not aware of the fact that any sage contradicted Rabbi Eliezer. R. Feinstein’s remarks could be plausibly read to imply that, had

15

Among subsequent writers, the Chazon Ish’s thesis is embraced by R. Jacob Israel Kanievski (the Steipler Ga’on)21 in his Kehillot Ya’akov to Tractate Berakhot, no. 1 and by R. Aaron Judah Halevi Grossman in his Shu”t Vidarashta Vichakarta IV, Yoreh De’ah no. 24, but is disputed by R. Ben-Zion Abba Shaul in his Shu”t Or Litzion I, Orach Chaim no. 7 (subsection no. 2). R. Shaul asserts that Eruvin 6b is only directed to a halakhic authority who is independently qualified to adjudicate between the clashing positions of previous poskim. Otherwise, a Jew must be stringent regarding any unresolved dispute in the context of a biblical prohibition, as stated by R. Joshua ben Korchah, even when his personal posek is of the lenient persuasion. The Chazon Ish’s thesis is also apparently disputed by R. Avigdor Halevi Neventzal on p. 237 of the latter’s Sichot Lisefer Bemidbar, where he adopts a position similar to that of the Chikrei Lev and Or Litzion. It further seems to this writer that the Chazon Ish’s thesis is implicitly disputed by R. Shlomo Zalman Auerbach in his Shu”t Minchat Shelomo I, no. 44 (subsection no. 2). R. Auerbach posits that when two poskim issue contradictory rulings regarding a rabbinic prohibition, and they present their polemical evidence to one another, then even when the stringent decisor is convinced that his opponent is absolutely in error, he must officially concede (when subsequently asked by an interlocutor for a practical halakhic decision) that the halakhah follows the lenient opinion22. Evidently, R. Auerbach is declaring that R. Joshua ben Korchah’s principle reigns supreme. And so it would emerge from R. Auerbach’s words that, mutatis mutandis, a Jew must be stringent regarding any unresolved dispute in the context of a biblical prohibition, even when his personal posek is of the lenient persuasion. Thus, the precise parameters of rabbinic sovereignty are fraught with controversy, and it would therefore appear that, as a matter of practice, only the poskim themselves who participate in the debate enjoy the sovereignty to act leniently on an unresolved dispute regarding a biblical interdiction. All others, including the direct disciples of the poskim, must behave stringently23.

the townspeople been actually aware that Rabbi Akiva opposed Rabbi Eliezer, they would have been indeed obligated to be stringent regarding a safek di’oraita, even though they were all disciples of Rabbi Eliezer. 21

I am grateful to R. Henoch Singer for bringing this valuable source to my attention. As a support to the Chazon Ish, the Steipler Ga’on marshals the Sifrei to Deuteronomy 17:9 which declares that “you have only a judge who lives in your days”. R. Kanievski interprets the Sifrei to mean that a student should always follow his halakhic decisor, even when the decisor is lenient in the context of an unresolved biblical dispute amongst the poskim. However, it seems to this writer that the Sifrei, in context, only precludes worrying about the unannounced opinions of poskim of previous eras, but says nothing about the adjudication of unresolved rabbinic disputes of the contemporary era, and so is entirely compatible with the contrary approach of the Chikrei Lev. 22

Although not directly affecting the dimension of rabbinic sovereignty presently under discussion, it is worthwhile to mention that one aspect of R. Auerbach’s ruling is cogently challenged by R. J. David Bleich on pp. xiv-xv of his Contemporary Halakhic Problems V. R. Bleich marshals evidence which indicates that a posek is never forced to issue a lenient ruling with which his own conscience disagrees. Thus, for R. Bleich, the stringent decisor in an unresolved dispute amongst the poskim regarding a rabbinic prohibition need not (and, in fact, should not) answer permissively. Rather, the decisor should excuse himself from adjudicating any practical cases. 23

The reason behind this stringent conclusion is that safek di’oraita lichumra. Thus, the dispute between the Chazon Ish et al. vs. the Chikrei Lev et al. (which R. Feinstein himself was apparently unable to resolve) must be adjudicated to the side of stringency. And even though the dispute between the Chazon Ish et al. and the Chikrei Lev et al. actually focuses upon a safek issur di’oraita rather than upon a vadai issur di’oraita, it nevertheless remains the case that the unresolved dispute must be adjudicated to the side of stringency, due to the directive of the Shakh to Yoreh

16

Moreover, in the particular context of the debate over the synagogue partition, there is especially strong reason to consider the matter as a safek – such that the principle safek di’oraita lichumra becomes germane – since, as described in section B above, the Yalkut Yosef, Yabi’a Omer, Teshuvot Vihanhagot and Shevet Halevi all express uncertainty as to the practical halakhah. Nevertheless, although a single doubt regarding a biblical prohibition must be adjudicated to the side of stringency, a compounded doubt (sfek sfeka) can be effective in generating a leniency. Accordingly, one might attempt to justify a synagogue’s reliance upon a tenhandbreadth partition with the following sfek sfeka likula: (i) (ii)

Safek likula #1: Maybe the halakhah follows the geographic barrier camp (described in section B above), such that a ten-handbreadth partition suffices. Safek likula #2: Even if it is not certain whether the halakhah follows the geographic barrier camp, maybe the halakhah follows the position (outlined in section A above) that a partition in a synagogue constitutes a mitzvah dirabbanan, such that one could invoke safek dirabbanan likula in order to rely on the geographic barrier camp.

However, in practice, this sfek sfek likula proves unsuccessful, due to the directive of the R. Shabtai Cohen in his Shakh commentary to Yoreh De’ah no. 110 (klalei sfek sfeka no. 19) that one cannot invoke safek dirabbanan likula on a second question involving what originally stems from a first safek biblical problem. A different sfek sfeka likula that might be employed in order to justify a synagogue’s reliance upon a ten-handbreadth high partition would be as follows: (iii)

(iv)

Safek likula #1: Maybe the halakhah follows the argument (outlined in section A above) that the construction of a Temple partition constituted a mitzvah dirabbanan, in which case the requirement for a synagogue partition would also be dirabbanan, which in turn would authorize invocation of safek dirabbanan likula to rely on the geographic barrier camp. Safek likula #2: Maybe the halakhah follows the argument (outlined in section A above) that the sanctity of a synagogue is only rabbinic in nature, in which case the requirement for a synagogue partition would also be dirabbanan, which in turn would authorize invocation of safek dirabbanan likula to rely on the geographic barrier camp.

Nevertheless, it seems to this writer that, in practice, such a sfek sfeka likula also proves problematic, due to the eleventh principle of the Shakh’s klalei sfek sfeka, which dictates that when both doubts arise from the same source (mishem echad), they are only reckoned as a single safek likula. It would appear that considerations (iii) and (iv) arise on the basis of predicates that are sufficiently similar to be regarded as mishem echad. By contradistinction, if a synagogue employs a kinaesthetic barrier as its partition, then it does indeed enjoy a genuine sfek sfek likula on which to rely, as follows:

De’ah no. 110 (klalei sfek sfeka no. 19) that one cannot invoke safek dirabbanan likula on a second question involving what originally stems from a first safek biblical problem.

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(v) (vi)

Safek likula #1: Maybe the halakhah follows the geographic barrier camp, such that a ten-handbreadth partition suffices. Safek likula #2: Even if the halakhah does not follow the geographic barrier camp, maybe the halakhah follows the kinaesthetic barrier camp.

Admittedly, however, the synthesis of a novel sfek sfeka likula nowadays is itself controversial. The Shakh's final provision among his thirty-six rules governing the application of a sfek sfeka likula (Yoreh De'ah no. 110) dictates that no novel sfek sfeka likula be constructed nowadays. R. Jacob of Lisa, in his Chavot Da’at (ad. loc.), affirms this position. Nevertheless, several authorities cited by R. Feivel Cohen in the latter’s Badei Hashulchan (Yoreh De’ah no. 110, se’if kattan no. 277) disagree and do permit the synthesis of a novel sfek sfeka nowadays. R. Cohen himself champions the latter school of thought, as does R. Ovadiah Yosef in his Shu”t Yabi'a Omer VI, Yoreh De’ah no. 24. A resolution of this dispute, which bears wide ranging implications throughout Torah law, is beyond the competence of this writer. Interestingly, one point that is potentially conclusive to authorizing the particular sfek sfeka at hand is that the Badei Hashulchan (ibid., se’if kattan no. 278) cites the Chavot Da’at (ibid.) to the effect that even the Shakh – who refuses to synthesize any novel sfek sfeka – will allow the synthesis of a sfek sfeka where there is a question whether there is any potential prohibition in the fact pattern altogether. For instance, if there a doubt whether an animal of prey even entered a flock of sheep, and a further doubt whether the animal of prey clawed one of the sheep, the Shakh will countenance a sfek sfeka to permit assuming that each of the sheep are kosher, since it is not even clear that any potential prohibition has devolved upon any of the sheep. Likewise, the argument might be rendered that since, as described in section A above, there is some question whether the obligation of a synagogue partition actually constitutes a mitzvah di’oraita, then although the evidence that it might be a mitzvah di’oraita is sufficiently powerful that the subsequent dispute among the poskim regarding the dimensions of the partition (section C) must be adjudicated to the side of stringency as per the Shakh’s nineteenth provision governing the application of a sfek sfeka likula, nevertheless the initial question that was generated whether in fact a synagogue partition constitutes a mitzvah di’oraita would be sufficient to trigger the Chavot Da’at’s leniency to synthesize a novel sfek sfeka likula. Still, this writer is unable to arrive at a definitive conclusion on this matter. Accordingly, what can be said is that it appears reasonable to assume that a congregation which is either willing to rely on those authorities who countenance the construction of a novel sfek sfeka likulai in general, and perhaps even a congregation which is stringent like the Shakh not to allow the novel synthesis of a sfek sfeka likula but which also relies on the Chavot Da’at’s interpretation of the Shakh, would be able to rely on a kinaesthetic barrier in the synagogue. Otherwise, a congregation must employ a visual barrier. Regarding the unresolved dispute in section B above [vis-à-vis the required absoluteness of the demographic separation that is orchestrated by the partition], the principle that safek di’oratia lichumra dictates that, in the absence of any partition whatsoever, one cannot allow even so much as one lady to stand among the gentlemen, or even so much as one gentleman to stand among the ladies. However, where there is a ten-handbreadth high partition [which, this section has already concluded is normally inadequate, due to a safek issur di’oraita], one may countenance the presence of one or two ladies being present while there is a quorum of gentlemen, or conversely one or two gentlemen being present while there is a congregation of ladies, thanks to the following sfek sfeka:

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(vii)

Safek likula #1: Perhaps the halakhah follows the lenient school of thought outlined above in section B (viz. Tosafot, the Iggerot Mosheh and the Benei Vanim) that it is permissible for one or two ladies to be present among gentlemen and for one or two gentlemen to be present among ladies in the Sanctuary.

(viii) Safek likula #2: Perhaps the halakhah follows the geographic barrier camp, such that a ten-handbreadth partition suffices. Of course, this latest sfek sfeka will only be acceptable for those congregations that are willing to rely on the synthesis of a novel sfek sfeka, contrary to the aforementioned Shakh. And perhaps it will even be acceptable to congregations that are stringent like the Shakh, provided they are willing to rely on the Chavot Da’at’s interpretation of the Shakh. E. CLOTH PARTITIONS AS KINAESTHETIC AND VISUAL BARRIERS As concluded in the above section D, a synagogue cannot rely exclusively on a geographic barrier, due to a safek issur di’oraita, but must rather possess at least a kinaesthetic barrier, in order to benefit from a sfek sfeka likula. Moreover, a congregation that follows the Shakh and accordingly refuses to synthesize a novel sfek sfeka likula would be required to possess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribes to the Chavot Da’at’s interpretation of the Shakh]. One point that requires clarification is the status of partitions that are constructed from cloth or otherwise flexible materials (e.g. canvas). It seems obvious to this writer that these are unfit for use in the context of a kinaesthetic barrier, for one can easily push one’s hand against the cloth wall, turning the cloth into a virtual glove through which one can communicate with an individual on the other side. At the same time, a completely opaque cloth would indeed be suitable as a visual barrier, because it truly serves the function of rendering the other side invisible. Even so, it further seems to this writer that an argument might be advanced that the synagogue partition must not oscillate, simply by virtue of the very teleological definition of a visual barrier. Namely, a partition which sways is not a proper visual barrier, because there is no opaqueness to the edges of the barrier when it sways. The only manner of swaying that can be countenanced is a curtain partition that is securely anchored at all of its border edges on all sides, such that the edges always remain totally closed, making them non-traversable by any hand and completely opaque. Under such circumstances, the only “swaying” that occurs involves the excess curtain material in the middle of the partition moving back and forth. [The question of the suitability of cloth partitions as a geographic barrier is subsumed within the very next section of this article.] F. RAMIFICATIONS OF THE GEOGRAPHIC BARRIER CAMP As concluded in the above section D, a synagogue cannot rely exclusively on the geographic barrier camp’s position, due to the problem of a safek issur di’oraita. At the same time, one must also recognize the possibility that the geographic barrier camp is in fact correct, and thus take into account the two stringencies that are unique to the geographic barrier camp. Namely, R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, no. 1, cogently notes that acceptance of his ten-handbreadth partition would lead to the following conclusions. Firstly, the 19

partition would have to possess the structural integrity necessary to comply with the dictum “any partition which cannot withstand a normally anticipated terrestrial wind is not a partition” (as per Sukkah 24b). Secondly, the partition would have to be regarded as a mechitzah hamateret, and so could neither be assembled nor disassembled on the Sabbath or festivals, owing to the rabbinic interdiction against assembling or disassembling a mechitzah hamateret on those days, as per Shulchan Arukh Orach Chaim 315:1. The first caveat affects the suitability of cloth or canvass walls as a synagogue partition, and, to that effect, there are three positions among the poskim as to how much swaying in the wind will disqualify a mechitzah hamateret, as follows: (i) Even the slightest amount of rustling in the wind will disqualify the partition. This position is espoused by R. Jacob of Karlin in his Kehillat Ya’akov Mikarlin on Sukkah 24b (and again in his Shu”t Mishkenot Ya’akov, Orach Chaim no. 123), R. Ovadiah Yosef in his Shu”t Yechaveh Da’at III, no. 46 (and again in his Shu”t Yabi’a Omer IX, Orach Chaim no. 59, and yet a third time in his Chazon Ovadiah – Sukkot, pp. 1-6), R. Menasheh Klein in his Shu”t Mishneh Halakhot, Mahadura Tinyana no. 512, R. Elijah Ragoler in his Shu”t Yad Eliyahu no. 24, and R. Aryeh Pomerantzik in his Emek Berakhah pp. 90-91. [According to the books Halikhot Shelomoh (hilkhot sukkah p. 97) and Shalmei Mo’ed (p. 93), this is also the position of R. Shlomo Zalman Auerbach (as found in the manuscript of his personal unpublished novellae upon Sukkah 24b). However, it should be noted that those two books were not published by R. Auerbach himself, and indeed the latter book quotes R. Avigdor Halevi Neventzal as actually disagreeing and reporting that R. Auerbach espoused the view of the Chazon Ish (presented as view number iii below).] (ii) Slight rustling is acceptable, but anything more will disqualify the partition (even if the motion is less than three handbreadths). This view is not quantitatively clear in terms of a precise threshold, but is nevertheless espoused by R. Moshe Sternbuch in his Mo’adim Uzemanim I, no. 84 and R. Isaac Liebes in his Shu”t Beit Avi IV, no. 73. It seems to this student that, although his words are somewhat cryptically phrased, this is also the position of R. Joseph Chaim Sonnenfeld24 in his Shu”t Salmat Chaim no. 372. (iii) Any motion less than three handbreadths is inconsequential due to the principle of lavud. This position is espoused by the Chazon Ish (Orach Chaim 77:6) as well as by R. Abraham David Horowitz in his Shu”t Kinyan Torah IV, no. 70. There is strong support for this position from the language of R. Moshe of Trani in his Kiryat Sefer commentary upon Rambam, Hilkhot Sukkah 4:5. [The same stance is adopted by R. Moshe Feinstein in his Shu”t Iggerot Mosheh, Orach Chaim V, no. 40 for all matters other than a sukkah, where he adopts position (ii) instead25.] 24

Cf., however, R. Ovadiah Yosef in his Chazon Ovadiah (loc. cit.), where R. Sonnenfeld is understood to be supporting position (i).

25

Incidentally, it should be noted that this responsum was not published by R. Feinstein himself. The volume known as Shu”t Iggerot Mosheh, Orach Chaim V & Yoreh De’ah IV (which contains this and many other original responsa) was actually published by R. Feinstein’s grandchildren, who write in their introduction (p. 2): “but in this volume [of Iggerot Mosheh] we have become orphans and we do not have a father to show us our way… and even though we have relied on the merit of our master, our grandfather [the Iggerot Mosheh], zatzal, not to err in any matter of Halakhah, still we cannot say that we have not erred in any place, and we will thank from the depths of the

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Now, one may inquire what will be the halakhah when a synagogue employs cloth partitions that would sway in the wind if a gust of wind would theoretically blow through the sanctuary, but when in fact no wind actually ever blows through the sanctuary, thanks to the walls of the synagogue that serve as artificial wind breakers. R. Yosef Cohen in his Harerei Kodesh commentary upon his grandfather R. Tzevi Pesach Frank’s Mikra’ei Kodesh, Sukkot I, no. 2, posits that the dispute between positions (i) and (iii) will result precisely in this very nafka minah. Namely, if a flimsy mechitzah which sways in the wind is constructed indoors or inside a walled courtyard (where the wind is prevented from blowing), will that flimsy partition which cannot withstand the wind be kosher? Says the Harerei Kodesh (footnote no. 3), according to position (i) the answer is negative, whereas according to position (iii) the answer is affirmative. According to position (i) an artificially constructed wind-buffering barricade which surrounds a flimsy mechitzah will not help because the mechitzah must be intrinsically strong in principle. According to position (iii), by contradistinction, an artificially constructed wind-buffering barricade which surrounds the mechitzah will indeed make the flimsy mechitzah kosher because the mechitzah need only stay (relatively) still in actuality. [The Harerei Kodesh does not address position (ii).] However, the Harerei Kodesh is evidently disputed by R. Ovadiah Yosef, who posits that there is no basis to say that walls surrounding a flimsy mechitzah assist the mechitzah26. Moreover, at best, the analysis of the Harerei Kodesh creates only a safek likula [since, even according to him, one must be cognizant of the fact that perhaps the halakhah follows position (i) rather than (iii)]. Since a mechitzah in a synagogue constitutes a safek mitzvah di’oraita (as per the analysis presented in section A above), seemingly one must be stringent due to considerations of safek di’oraita lichumra. Thus, in sum total, a synagogue which takes into account the safek likula possibility of the correctness of the geographic barrier camp must be careful that its partition not be capable of swaying in the wind, even though the walls of the sanctuary operate as artificial wind breakers. If the partitions would sway three handbreadths in the event that a wind would hypothetically blow through the synagogue, it should be assumed that all poskim would disqualify the mechitzah. [If the partitions would sway appreciably in the wind but less than three handbreadths, it should be heart the readers who will call our attention to the mistakes that they will find, so that we will be able to fix upcoming editions.” See also the introduction of the previous volume of the Iggerot Mosheh (Even Ha’ezer IV & Choshen Mishpat II), which was indeed published by R. Moshe Feinstein himself. There, R. Feinstein writes: “As is known to everyone, the full responsibility for the publication of this book is placed upon me from its beginning to its end, for they [my assistant publishers] send to me all the manuscripts that I should see and correct them before they enter publication.” Thus, there appears to be an epistemological difference between the former and the latter volumes. 26

R. Yosef makes this point in a footnote on p. 138 of Yechaveh Da’at III. The focus of the dispute between the Harerei Kodesh and the Yechaveh Da’at centers upon a responsum of R. Jacob Chagiz in the latter’s Shu”t Halakhot Ketanot II, no. 50. The Harerei Kodesh understands that the Halakhot Ketanot validates a flimsy mechitzah which is protected by surrounding wind-buffering courtyard walls. The Harerei Kodesh postulates that this means the Halakhot Ketanot is not concerned with the intrinsic structural integrity of the mechitzah, but rather with the fact that the mechitzah not actually move three handbreadths (like the Chazon Ish). By contradistinction, the Yechaveh Da’at believes that the Halakhot Ketanot only originally entertained a havah amina that wind-buffering courtyard walls can protect a mechitzah, but later retracted based on the concept enunciated in Sukkah 2a to the effect that “take away the shade of [the lofty mountains of] Ashteroth Karnayim and there will be the shade of the sukkah”. Thus, according to the Yechaveh Da’at, no authority (-presumably not even the Chazon Ish-) renders a flimsy mechitzah as being kosher based on surrounding wind-buffering courtyard walls. See also p. 91 of R. Pomerantzik’s Emek Berakhah, where he adjudicates such a flimsy mechitzah to be disqualified.

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assumed that many poskim would disqualify the mechitzah. And if the partitions would sway slightly in the wind, it should be assumed that some poskim would disqualify the mechitzah.] Now, it has already been explained in section E above that a cloth or canvas partition is disqualified as a kinaethetic barrier, but that a cloth or canvas partition is suitable as a visual barrier, provided that the edges are well anchored. Hence, the dispute among the poskim that has been described in this section (F), viz., how much swaying disqualifies a geographic partition, becomes germane if a congregation chooses to employ a canvas or cloth barrier as a visual barrier. Such a choice of a synagogue partition would be acceptable based upon a sfek sfeka likula: (i) Safek likula #1: Perhaps a geographic barrier suffices for a synagogue partition, in which case a cloth or canvas partition is acceptable, so long as it is capable of withstanding an anticipated terrestrial wind. (ii) Safek likula #2: Perhaps a visual barrier suffices for a synagogue partition, in which case even a swaying partition is acceptable. Accordingly, a synagogue which relies on a cloth or canvas wall as a visual barrier (which, as has just been demonstrated, could be countenanced based on a sfek sfeka likula), would have to be careful that the partition not sway in the wind (-certainly not three handbreadths, and better yet not even less than three handbreadths, and best of all not even the slightest bit). If the partition would sway three handbreadths in the wind, the mechitzah is disqualified. Again, as already mentioned in section E above, it seems evident to this writer that to serve as a genuine visual barrier, the cloth or canvass would have to be well anchored at all its edges. However, seeing as this arrangement is predicated upon a sfek sfeka likula, a synagogue which subscribes to the view of the Shakh referenced earlier that one should not synthesize a novel sfek sfeka likula nowadays would be unable to rely upon it. [Perhaps, though, a leniency can be allowed even for a congregation that is stringent like the Shakh, provided the congregation subscribes to the Chavot Da’at’s interpretation of the Shakh.] Rather, the synagogue would require a visual barrier synthesized from a material that is neither cloth nor canvas. Regarding the second caveat (viz. the prohibition of assembling or disassembling a mechitzah hamateret on the Sabbath and festivals), note should be taken of the remarks of R. Dovid Ribiat in his The 39 Melochos (Feldheim: New York, 1999), and R. Simchah Bunim Cohen in his The Shabbos Home II (Artscroll: New York, 2003). They both posit27 that because the mechitzah for the laws of synagogue is not a ten handbreadth structure but is rather a more formidable structure [i.e. eighteen handbreadths for the kinaesthetic barrier camp, and taller than the tallest person present for the visual barrier camp], the rabbinic prohibition against assembling or disassembling a temporary structure does not apply. The rabbinic prohibition only applies to structures which have significance when they are ten handbreadths tall (e.g. a sukkah wall), i.e. a mechitzah hamateret. Evidently, R. Ribiat and R. Cohen only entertained the possibility of a synagogue that subscribes to either the kinaesthetic barrier or the visual barrier camps. They declined to consider the option that a synagogue might subscribe to a geographic barrier camp. Nevertheless, since, as 27

In R. Ribiat’s book, it is footnote no. 178 to the chapter on Boneh. In R. Cohen’s book, it is footnote no. 23 to chapter thirty-one.

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established in section D above, no synagogue today may rely exclusively on the geographic barrier camp (due to the problem of a safek issur di’oraita) and instead every synagogue must possess at least a kinaesthetic barrier, it emerges that every synagogue will be permitted to assemble and disassemble its partition on the Sabbath. This is because assembling or disassembling a mechitzah hamateret on the Sabbath represents the violation of a rabbinic interdiction. As such, one may invoke the principle of safek dirabbanan likula, by recognizing the following single safek to be lenient: Perhaps the halakhah does not follow the geographic barrier camp, such that the synagogue partition is not a conventional mechitzah hamateret, whereupon it should become permissible to assemble or disassemble the partition on the Sabbath. Nevertheless, even though according to the letter of the law one may rely on safek dirabbanan likula, the Mishnah Berurah to Orach Chaim no. 489 (se’if kattan no. 14) points out that the Shulchan Arukh calls upon Jews who are conscientious in championing mitzvot (“hamidakdikim”) not to place themselves in a position of doubt wherein safek dirabbanan likula becomes germane. Thus, a congregation composed of midakdikim would be well advised, wherever possible, to avoid assembling or disassembling the synagogue partition on the Sabbath. On the other hand, R. Yosef Ben-Arza, in his Yosef Da’at to Tractate Avodah Zarah 7a (p. 32), marshals sources which propose that there is no preference whatsoever to be stringent on an unresolved controversy regarding a rabbinic prohibition, as distinct from a conventional uncertainty regarding a rabbinic prohibition [where midakdikim are indeed advised to be stringent]. The distinction, it is argued, lies in the fact that the Sages issued their ordinances with the express understanding that the ordinances are to be rendered completely inoperative in case of dispute between the poskim. If this approach is accepted, then it evidently emerges that even midakdikim could assemble or disassemble the synagogue partition on the Sabbath in good conscience. G. GAPS AT THE FOOT OF THE BARRIER As concluded in the above section D, a synagogue cannot rely exclusively on a geographic barrier, due to a safek issur di’oraita, but must rather possess at least a kinaesthetic barrier, in order to benefit from a sfek sfeka likula. Moreover, a congregation that follows the Shakh and accordingly refuses to synthesize a novel sfek sfeka likula would be required to possess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribes to the Chavot Da’at’s interpretation of the Shakh]. However, one further point which requires clarification is whether a kinaesthetic or visual barrier can accommodate a gap at the bottom, within three handbreadths of the ground. This frequently arises as a question in synagogues with partitions stationed on wheeled platforms. Obviously, a geographic barrier (such as that which is employed as a sukkah wall) may permissibly possess a gap within three handbreadths of the ground, due to the principle of lavud. However, lavud has already been discovered to be inapplicable in the context of the kinaesthetic barrier position, since R. Feinstein disallows any gap larger than three inches, as explained in section B above. Theoretically, then, one could argue that a three-inch gap at the bottom of a kinaesthetic barrier is unacceptable. On the other hand, one might counter-argue that it would be socially awkward for a person to extend his hands or carry on a conversation across the partition within the bottom three handbreadths of the partition. [In order to accomplish those feats, the individual would have to be sitting or lying on the ground, which is a bizarre predicament in the

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synagogue on all days other than the fast of Tish’ah Bi’av28 as well as the prostrations during the High Holidays.] But as a countervailing argument in favor of stringency, it should be pointed out that although R. Feinstein in Iggerot Mosheh, Orach Chaim I, no. 39, demands a partition that will prevent contact of hands of worshippers positioned on either side of the partition, in Orach Chaim III, no. 23 he prescribes a partition that will prevent contact of “their hands and their bodies”. Now, the feet of worshippers in the synagogue are assuredly halakhically considered to be part of their bodies, and so the capacity to move one’s foot across the partition may also be contraindicated by R. Feinstein’s remarks, in which case even a gap within the three handbreadths of the ground would be unacceptable. And so – what in fact is the halakhah? In the absence of any direct evidence, it seems to this writer that the matter is a safek analogous to the doubt expressed by the Mishnah Berurah in Orach Chaim no. 336, se’if kattan no. 36. The mishnah in Eruvin 99b teaches that even though the Sages prohibited resting on any part of a tree on the Sabbath [lest one come to detach foliage and thereby desecrate the Sabbath through the labor of harvesting], it is permitted to rest on arboreal roots that are within a mere three handbreadths of the ground, since they are considered to be assimilated into the ground. Regarding this matter, the Mishnah Berurah (citing the Pri Megadim) investigates without resolution the situation of a small bush bearing fruits or vegetables that is situated within three handbreadths of the ground: Can one rest on the bush on the plea that it is simply considered part of the ground (just like roots positioned within three handbreadths of the ground), or must one avoid doing so, lest one come to pick the fruits or vegetables? For the Mishnah Berurah, a doubt persists, and so the analogous safek must be assumed to be true for a kinaesthetic barrier harboring a gap within three handbreadths of the ground. Accordingly, there is a sfek sfeka lichumra to disqualify a synagogue partition that is intended to serve as a kinaesthetic barrier but which also possesses a gap greater than three inches within three handbreadths of the ground, as follows: (i) (ii)

Safek lichumra #1: Perhaps the halakhah follows the visual barrier camp, such that a kinaesthetic barrier is inadequate. Safek lichumra #2: Even if the halakhah follows the kinaesthetic barrier camp, perhaps a kinaesthetic barrier – by definition – cannot accommodate a gap greater than three inches even at the bottom.

Thus, a synagogue that relies on a kinaesthetic barrier as its partition must ensure that there is no gap larger than three inches, even at the foot of the barrier. Regarding the case of the visual barrier, it is equally unclear whether a visual barrier can possess a gap within three handbreadths of the ground. On the one hand, one could argue that since it is theoretically possible to see through such a gap, the barrier is disqualified. On the other hand, one could counter-argue that one can only see with difficulty through such an aperture, and so the barrier still functions as a proper visual barrier. It seems to this writer that a precedent may be marshaled from Shulchan Arukh Orach Chaim 671:6, which rules that Chanukah candles – in order to fulfill the purpose of miracle publicity (pirsumei nissa)– should be placed three or more handbreadths above the ground. The Mishnah Berurah (se’if kattan no. 26) explains that candles within thee handbreadths of the ground are considered part of the ground and will not be seen by spectators. However, the 28

And, of course, the fast of Tish’ah Bi’av is prophetically guaranteed to be transformed into a holiday, as per the gemara in Rosh Hashanah 18b, whereupon it is assuredly the case that Jews will no longer sit on the floor on Tish’ah Bi’av.

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Mishnah Berurah adds (based on the Pri Chadash) that post facto the candles are kosher. Evidently, the Mishnah Berurah recognizes that there is a certain degree of visibility even in the range of within three handbreadths of the ground, albeit with difficulty. Thus, one may inquire whether such difficult visibility is of significance in the context of a synagogue partition. Apparently, the matter remains an unsolved mystery. Here, however, there is no sfek sfeka lichumra, but rather a sfek sfeka likula to justify a visual barrier that possesses a gap within three handbreadths of the ground, as follows: (iii) (iv)

Safek likula #1: Perhaps the halakhah follows the geographic barrier camp, such that a gap within three handbreadths of the ground is acceptable. Safek likula #2: Even if the halakhah follows the kinaesthetic or visual barrier camps, perhaps a gap at the foot of the kinaesthetic or visual barrier is acceptable.

Thus, a synagogue which utilizes a visual barrier as its partition may indeed allow a gap within three handbreadths of the ground. Of course, a congregation that is strict in accordance with the position of the Shakh and which therefore refuses to synthesize a novel sfek sfeka likula must ensure that the visual barrier not possess any gap, even within three handbreadths of the ground [unless, perhaps, the congregation subscribes to the Chavot Da’at’s interpretation of the Shakh.] Admittedly, however, there is one case of a visual barrier that may not possess a gap within three handbreadths of the ground. Namely, if the visual barrier is synthesized from cloth or canvass, then it perforce already relies upon a sfek sfeka likula, as per section F above. Hence, a gap within three handbreadths of the ground would generate a sfek sfeka lichumra, as follows: (v) (vi)

Safek lichumra #1: Perhaps the halakhah follows the kinaesthetic barrier camp, such that a cloth or canvas partition is disqualified, as per section E above. Safek lichumra #2: Perhaps a gap at the foot of a visual barrier is unacceptable, as per the uncertainty described in this section (G).

Thus, a congregation which utilizes a cloth or canvass wall as its synagogue partition – and therefore makes it into a visual barrier in order to benefit from a sfek sfeka likula (as per section F above) – must be careful that the wall extend completely to the ground. H. LATTICE NETWORKS IN THE PARTITION As concluded in section D above, a synagogue cannot rely exclusively on a geographic barrier, due to a safek issur di’oraita, but must rather possess at least a kinaesthetic barrier, in order to benefit from a sfek sfeka likula. Additionally, as established in section C and further elaborated in section E above, the kinaesthetic barrier may permissibly contain gaps of up to three inches. Accordingly, one might propose that a lattice network could be employed as a synagogue partition, so long as the individual spaces do not exceed three by three inches. [Indeed, it may very well be that this is the arrangement envisaged by Shu”t Iggerot Mosheh, Orach Chaim IV, no. 29.] For that matter, one could even employ a chain fence – which consists mostly of empty space – since the spaces (on an individual scale) do not exceed three by three inches. However, upon careful analysis, this does not prove to be the case, thanks to the concept of lavud lichumra that is codified by the Mishnah Berurah in Orach Chaim no. 626, se’if kattan 25

no. 17. Lavud lichumra, first enunciated by the Bach in his commentary to Tur, Orach Chaim no. 626, means that prohibiting architectural quantities can combine if they are within three handbreadths of one another. For instance, closely positioned thin segments of disqualified skhakh (such as growing arboreal foliage, laundry wires or electricity cables) that overhang a sukkah may cause the airspace in between them to be regarded as virtually filled with disqualified skhakh, with all the consequences that this bears in the realm of hilkhot sukkah. Lavud lichumra, then, should also apply to a lattice network in the context of a synagogue partition. In the context of the synagogue partition, it is precisely the empty spaces that constitute the prohibiting architectural quantities. Even though each empty space may be inconsequential on its own – thanks to its diminutive size (in being three by three inches or less) – the fact that the empty spaces are within three handbreadths of one another should combine them into a virtually agglomerated massive space, through the mechanism of lavud lichumra. Admittedly, R. Simchah Rabinowitz, in his Piskei Teshuvot to Orach Chaim no. 626, subsection no. 8, catalogues many poskim who hold that lavud lichumra only applies to wires (or other disqualifying material) overhanging a sukkah when – even without the intervening space between the wires – there is so much material in the wires that were the wires to be juxtaposed, they would enjoy a width of four handbreadths or more. [The significance of the measure of four handbreadths is that this is the minimum quantity of disqualified skhakh necessary to disqualify an entire sukkah.] Accordingly, translating this caveat to the realm of the synagogue partition would result in the conclusion that empty spaces [which are within three handbreadths of one another] will only combine to one another if there is so much empty space in total (if the spaces were to be juxtaposed) so as to measure a quantity of empty space that exceeds three by three inches. As one may readily discern through empirical observation, this provision effectively precludes the possibility of ever relying on a lattice network as a synagogue partition (most especially in the case of a chain fence). Thus, there is a sfek sfeka lichumra to prohibit a synagogue from relying on a lattice network as its kinaesthetic barrier, even though each space in the lattice network individually measures three by three inches or less: (i)

Safek lichumra #1: Perhaps there is lavud lichumra, such that empty spaces which are within three handbreadths of one another and which in total – if they were juxtaposed – measure a quantity of empty space that exceeds three by three inches combine to disqualify the synagogue partition, even though each individual space (on a local scale) only measures three by three inches or less.

(ii)

Safek lichumra #2: Perhaps a kinaesthetic barrier does not help altogether, since perhaps the halakhah follows the visual barrier camp (-which is a genuine safek, as per sections C and D above).

At the same time, consideration of both sections G and H yields the further conclusion that a synagogue which relies on a kinaesthetic barrier as its partition could permit a lattice partition within the bottom three handbreadths of the wall – provided that each space within the lattice network measures three by three inches or less – thanks to the following sfek sfeka likula: (i)

Safek likula #1: Perhaps a kinaesthetic barrier does not need to be sealed within the bottom three handbreadths of the partition [as per the doubt expressed in section G]. 26

(ii)

Safek likula #2: Perhaps the halakhah does not follow the Bach, such that we do not say lavud lichumra [as per the doubt expressed in this section (H)]. I. CONSEQUENCES ON KIDDUSHIN

One potential source for opposition to the insistence upon the formidable synagogue partition that is being advocated by this essay may be the consequences that such an insistence would bear upon unmarried Jews who frequent the synagogue. After all, those unmarried Jews may be seeking to eventually fulfill the mitzvah of kiddushin, and were the synagogue partition less pronounced in nature, it might be easier for them to identify potential prospects. This concern becomes germane in light of the apparent recognition of the legitimacy of Jews finding their own marriage prospects (without requirement for referral by a third party) that is reflected by the mishnah in Ta’anit 26b29. Nevertheless, notwithstanding the paramount concerns a synagogue ought to manifest for the welfare of its singles population, a synagogue is simply forbidden to compromise on its observance of Leviticus 19:30 even for so noble a purpose as helping the singles, because “there is no wisdom, no understanding and no counsel against the Eternal”, as per Proverbs 21:30. And thus the requirement for a formidable synagogue partition remains true. At the same time, this writer would suggest several highly innovative ways in which the Jewish community might attempt to help singles achieve observance of the mitzvah of kiddushin, even as it insists on a formidable synagogue partition during services, as follows: (i)

The misheberakh licholim recited during synagogue services could be replaced with a misheberakh lishiddukhim. After all, R. Chaim Kanievsky is directly quoted as having submitted that a misheberakh licholim [which typically consumes a significant amount of synagogue time] can be greatly abbreviated by having the names of ill patients previously inscribed in ledger, and then briefly praying that whoever is mentioned in the ledger [together with all other patients] should be healed30. The substantial amount of time saved by this abbreviation could be used to recite a prayer for those who need to find marriage partners. After all, praying for a marriage partner is advocated by the gemara in Berakhot 8a31. Moreover, as congregants are forced to articulate the names of singles during the course of the misheberakh prayer, they might think of suitable matches for the singles.

(ii)

All married ladies could voluntarily accept upon themselves to wear a chapeau/handkerchief, and not a wig, when they leave the home. To be sure, many halakhic authorities, including R. Moshe Feinstein in his Shu”t Iggerot

29 Cf., however, R. Chaim Ben Attar, in his Or Hachaim commentary to Leviticus 19:29, who apparently conveys the impression that a Jew should only arrange marriage through a matchmaker. A reconciliation of his remarks with the talmudic passage in question requires further analysis. 30

R. Meshulam Feish Hart, on p. 34 of his Kuntress Virapo Yirapay (Bnei Berak 5763).

31

To that effect, R. Yitzchak Yosef, on p. 19 of his Yalkut Yosef, Sova Semachot I, encourages prayer as an effective means to find one’s spouse.

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Mosheh, Even Ha’ezer II, no. 12, rule that a wig is perfectly acceptable for a married lady, and that a husband is not entitled to insist that his wife wear a chapeau/handkerchief instead32. [Indeed, some do not even require a married lady to wear any head covering altogether33.] Nevertheless, an obvious consequence of wearing wigs [or not wearing any head covering altogether] is to create confusion in the public eye as to which ladies are married and which ladies are available for marriage. It would certainly be easier for unmarried ladies to find their matches if they would not have to compete with the married ladies, who – for all intents and purposes – appear virtually indistinguishable when they are wearing wigs [and all the more so when they are not wearing any head covering]. Thus, granted that the halakhah may perfectly well follow R. Feinstein that a wig is acceptable [or even the school of thought that no head covering whatsoever is required], it would still be a noble gesture of chessed for the married ladies to show compassion for their unmarried colleagues by voluntarily wearing a chapeau/handkerchief. This would facilitate the marriage prospects for unmarried ladies34. (iii)

All mesaderei kiddushin could agree to employ the prenuptial agreement outlined by R. J. David Bleich on pp. 3-20 of his Benetivot Hahalakhah I. The prenuptial agreement is extraordinarily financially generous to the wife, beyond the norms of standard ketubah35. Presumably, the knowledge that, during a marriage, they will

32

Cf., however, R. Ovadiah Yosef in his Shu”t Yabi’a Omer V, Even Ha’ezer no. 5, who respectfully disagrees with R. Feinstein, and requires a lady to wear a chapeau/handkerchief. An analysis and resolution of that dispute transcends the scope of this essay. 33

See sources cited by R. Michael Broyde in Journal of Halachah and Contemporary Society, no. 31, pp. 123-126.

34

See Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 32 (subsection no. 4), where R. Feinstein permits a divorcee to refrain from covering her head under certain circumstances, for the sake of facilitating her finding an appropriate prospect for the mitzvah of kiddushin. That responsum implicitly recognizes the advantage a single lady enjoys in terms of finding a prospect for the mitzvah of kiddushin when she is visually distinguishable from her married colleagues.

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This prenuptial agreement essentially obligates the husband, as part of the ketubah, to pay his wife a fantastic sum of extra mezonot every day. It must be emphasized that the extra mezonot have nothing whatsoever to do with divorce. Divorce is not mentioned and is not desired. {Thus, the problem of disqualification of the prenuptial agreement due to asmakhta (-a contingency penalty clause that is unenforceable according to Torah law) is thereby avoided.} Rather, as R. Bleich explained in a telephone conversation with this writer on February 19, 2008, the purpose of such extra mezonot is to allow the wife to attend an all-ladies’ yarchei kallah Torah study retreat in any foreign location she chooses, at any time she chooses, in order to spiritually fortify herself. It is certainly reasonable for a generous-minded groom to sincerely accept upon himself such an obligation prior to the marriage, in light of the insistence of the Chafetz Chaim and other poskim that nowadays Torah study should be made available to the righteous ladies of Israel. R. Bleich acknowledges that there is an element of considerable novelty in his prenuptial agreement proposal. Certainly, the validity of his proposal depends entirely upon the credibility of the claim that a groom truly accepts upon himself before marriage to enable his future wife to depart on a yarchei kallah trip at any time she wishes. [In this writer’s opinion, a trip out of the home for any other purpose does not appear credible as earning the genuine consent of the groom, in light of the value of kol kevudah bat melekh penimah that is codified by the gemara in Yevamot 77a and Shevu’ot 30a. (See also the Mefaresh to Nazir 12a, s.v. amar leih aminah lakh ana ishah dilo naida, who understands the gemara there to be predicated upon kol kevudah bat melekh penimah, as well.) See also R. Moshe Sofer, in his Chiddushei Chatam Sofer to Shabbat 21b, who posits that a lady whose husband lights the Chanukah candles should not light her own candles, since the value of kol kevudah bat melekh penimah opposes the gratuitous sortie of a married lady outside the home, and Chanukah candles are lit at the

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enjoy significant financial leverage over their husbands might allow ladies the ease of conscience to accept marriage propositions with greater agility in the first place, thus accelerating the kiddushin process36. But whether or not these innovative suggestions are implemented by the Jewish community, it remains the case that a synagogue is obligated to adhere to the formidable standards for a partition described in this essay, notwithstanding the inconvenience that is thereby imposed upon singles seeking marriage options. Ultimately, each person’s match is arranged from Heaven (whether it be a zivug rishon or a zivug sheni), as per the gemara in Mo’ed Kattan 18b, such that one may rest assured that even the tallest of synagogue partitions will not hinder the fortuitous materialization of Providence. CONCLUSION The subject of a synagogue partition is shrouded in the mystery of insoluble sfekot described by this essay. Since the Torah is not given to ministering angels (as per the gemara in Berakhot 25b), there is no choice but to manage these sfekot as best as one humanly can, given the rules of sfekot that have been described by Shulchan Arukh Yoreh De’ah. Hopefully, this essay has successfully fulfilled the task. In conclusion, then, assuming the foregoing analysis of sfekot-management is accepted, a synagogue cannot rely on a ten-handbreadth high partition, due to a safek issur di’oraita generated by the intractable dispute among the poskim described in this essay. To be sure, a number of authorities have indeed countenanced reliance upon a ten-handbreadth partition, and with good reason. Prior to the publication of this essay, any congregation which would have entrance of the home.] Nevertheless, R. Bleich affirms that he carefully consulted with R. Shlomo Zalman Auerbach, R. Jacob Kamenetzky and (yibadel lichaim) R. Joseph Shalom Eliashiv who all approved of, and indeed encouraged, the prenuptial agreement. Apparently, then, those authorities agree with the credibility of the yarchei kallah claim. [The essential point here is that kol kevudah bat melekh penimah cannot be invoked to hinder a lady from leaving the home for the noble sake of attending a yarchei kallah.] 36

Admittedly, however, R. Moshe Feinstein specifically discourages the wholesale employment of prenuptial agreements in his Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 107. [Intriguingly, there are two different published manuscripts of that responsum. The edition to which this footnote refers is that published by the Moriah Offset Company of Brooklyn, NY (in contradistinction to the edition published in Israel by Yeshivat Ohel Yosef Printers as well as the one published in the United States by Noble Book Press Corporation).] Perhaps one may respond that R. Feinstein’s objection occurs in the context of a different kind of prenuptial agreement – viz., that if a dispute between the husband and wife will arise in the future, they agree to adjudicate their dispute before a particular halakhically expert Beth Din. Perhaps R. Feinstein only objected to such a prenuptial agreement because it is not proper to anticipate disharmony arising in the family. By contradistinction, R. Bleich’s pre-nuptial agreement, strictly speaking, has nothing to do with disharmony, but rather with providing the wife with as many yarchei kallah opportunities as she seeks for promotion of her own spiritual welfare. Even a wife who is in a state of harmony with her husband may seek to enjoy the benefits provided by this prenuptial agreement. Accordingly, perhaps R. Feinstein would not object to the wholesale employment of such a pre-nuptial agreement. The matter requires further analysis. {N.B. The Beth Din of America has also formulated a prenuptial agreement, available at http://www.bethdin.org. Certainly, the Beth Din of America is to be praised for its heroic efforts and sparkling Torah genius that it has manifested in the development of this excellent prenuptial contract. At the same time, R. Bleich, on pp. 21-31 of Benetivot Hahalakhah I, demonstrates [with the request of the kind forgiveness of the Rabbanan HaGe’onim, shlit”a, of the Beth Din of America] that the prenuptial agreement is not halakhically enforceable, due to an asmakhta.}

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followed that pesak halakhah would have been entirely justified in so behaving, just like the townspeople of Rabbi Eliezer in Shabbat 130a. Those individuals were wholly righteous and fully deserving of divine blessing. Nevertheless, with the publication of this groundbreaking essay, and the demonstration therein that the question of a synagogue partition constitutes an unresolved dispute regarding a biblical prohibition, the congregations that have previously relied upon a ten-handbreadth high partition become obligated to modify their practice. Otherwise, it is simply forbidden to recite kaddish, kedushah or barkhu. Indeed, this essay has demonstrated that a synagogue must possess at least an eighteenhandbreadth high partition (which may even be reduced to a height of sixty or even perhaps fiftyeight inches, assuming that the partition always exceeds the shoulder height of the ladies present in the synagogue37). But even so, under no circumstances may there be a break that exceeds three inches [-either inside the partition framework or between the partition and the walls of the sanctuary], and even smaller breaks should be eschewed by a spiritually elevated congregation. Moreover, there cannot even be a gap [which exceeds three by three inches] within three handbreadths of the ground. Moreover, even if the congregation is willing to tolerate gaps [of three inches by three inches or less], there cannot be a lattice network of such gaps. Rather, the gaps – which can at most individually measure three by three inches each – must be positioned three or more handbreadths apart. [The only exception to this latest stringency occurs within the bottom three handbreadths of the ground.] Furthermore, the mechitzah cannot be synthesized out of cloth or canvass. It may also be noted that, as per the final two paragraphs of section D above, if there are one or two unusually tall ladies whose shoulder height exceeds the kinaesthetic barrier partition, synagogue prayer is still possible, thanks to a sfek sfeka likula. Alternatively, if the synagogue partition possesses a gap within three handbreadths of the ground, it must be a visual barrier [i.e. taller than the tallest worshipper present], as per section G. As a distinct alternative, if the synagogue partition is synthesized out of cloth or canvass, it must be a visual barrier [i.e. taller than the tallest person present]. Under such conditions, the mechitzah must be securely anchored at all its edges along all its sides, such that the only swaying that occurs is of the excess material in the middle of the partition [but the edges remain completely opaque.] Moreover, the mechitzah will be disqualified if it is capable of swaying three handbreadths in the wind (and, according to many opinions, even if it would sway less). Moreover, under such conditions, there cannot be any gap at the foot of the barrier, as per the concluding three paragraphs of section G. The above guidelines apply to a congregation that is willing to rely upon the synthesis of a novel sfek sfeka likula. A congregation that refuses to synthesize a novel sfek sfeka likula (in accordance with the view of the Shakh) would always be obligated to construct a visual barrier, and one that is not synthesized from canvas or cloth, and one which does not even posses a gap within three handbreadths of the ground. [At the same time, even if a congregation is stringent like the Shakh, if the congregation also subscribes to the Chavot Da’at’s interpretation of the Shakh, viz., that a novel sfek sfeka likula may be synthesized even according to the Shakh when there is a question whether any biblical prohibition at all is relevant to the scenario in question, then the case could be arguably made, as well, that the congregation might perhaps rely on a sfek sfeka likula in the context of the mitzvah of a synagogue partition. The matter requires further analysis, and resides beyond the competence of this writer.] 37

See supra, footnote no. 13.

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When constructing a visual barrier, it is appropriate that it be one through which the ladies can see the gentlemen’s section, such as via a one-way-glass38. These norms apply when the congregation prays inside any building – be it a synagogue or otherwise [as per Shu”t Iggerot Mosheh, Yoreh De’ah II, no. 109]. By contradistinction, when praying outdoors, the requirement for a synagogue partition is replaced by that of a four-cubit horizontal buffering space zone39. Presumably, one should envisage a virtual rectangle encompassing all the gentlemen participating in the outdoor prayers, and from the edges of that rectangle draw the buffering zone in every direction. [A similar geometric methodology is employed when calculating halakhic city limits as well as an individual’s personal four-cubit entourage, as per the fourth and fifth chapters of Tractate Eruvin.] The definition of outdoor participants is the population of individuals who are both capable of hearing the shali’ach tzibbur and of seeing one another in an unbroken chain40. {N.B. Although the Temple external courtyard described in Sukkah 51b – which serves as the entire precedent for the synagogue partition obligation – was unroofed, the Temple Mount complex was surrounded by walls and so was treated as an indoor area.} While implementing these conclusions into the synagogue architecture, it is important that one internalize the remarks of R. Joseph Saul Nathanson in his Shu”t Sho’el Umeshiv Kamma II, no. 22, which are cited approvingly by R. Ovadiah Yosef in his Shu”t Yabi’a Omer X, Orach Chaim no. 15. R. Nathanson was asked whether one may aggrandize the area of the ladies’ section of the synagogue at the expense of the area of the gentlemen’s section of the synagogue. The author responds affirmatively, declaring “it is a great mitzvah”, and citing the Sages to the effect that “in the merit of the righteous ladies [of the Jewish People] were our ancestors redeemed,” and that it was precisely the ladies’ donations to the Tabernacle which the Torah cherishes. In other words, R. Nathanson is acknowledging that the real spiritual powerhouse of Jewry is the House of Jacob. It is the ladies who are the champions of prayer, and they must be given first priority in assigning comfortable synagogue seating41. The significant bifurcation of the sanctuary that is required by virtue of Leviticus 19:30 coexists simultaneously and harmoniously with the recognition that the ladies are the principal worshippers who are to be honored in the House of G-d. Moreover, the gemara in Niddah 45b expounds upon Genesis 2:22 to establish that ladies are endowed with superior understanding. It comes as little surprise, then, that the major laws of amidah are derived from a righteous lady (viz. the biblical Chanah), as per the gemara in Berakhot 31a. Hopefully, the gentlemen will learn a lesson from the praiseworthy ladies of Israel in how to genuinely fulfill the mitzvah of tefillah. 38

See supra, footnote no. 15.

39

See supra, footnote no. 17. In light of the calculation offered supra, footnote no. 11, four cubits may equal as much as 240 cm.

40

See sources to this effect cited by R. Simchah Rabinowitz in his Piskei Teshuvot to Orach Chaim no. 55, subsection no. 22.

41

Admittedly, R. Nathanson’s ruling (which is upheld by R. Yosef) is contested by Mori ViRabbi R. Efrayim Greenblatt in the latter’s Shu”t Reevivot Efrayim VI, no. 67. R. Greenblatt prohibits expanding the ladies’ section at the expense of the gentlemen’s section. However, this does not seemingly affect the substance of the thesis at hand, because R. Greenblatt opposes R. Nathanson on purely technical grounds, but does not dispute his essential thematic point, viz., the superior righteousness of the ladies of Israel. [And see also the newly published manuscript of Shu”t Rabbi Akiva Eger Hachadash IV, Orach Chaim no. 13 (subsection no. 5), where R. Akiva Eger authorizes transformation of a gentlemen’s section into a ladies’ section.]

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This may also explain the remarks of R. Jacob Etlinger in his Arukh Laner commentary upon Rashi to Sukkah 51b (s.v. chalakah haitah). The Arukh Laner inquires why the external courtyard of the Temple is known in rabbinic parlance as the ezrat nashim, when in fact ladies are perfectly authorized to enter the inner courtyard of the Temple just as well, as established by Tosafot to Kiddushin 52b (s.v. vikhi ishah ba’azarah minayin). The Arukh Laner answers that the outer courtyard is termed the ezrat nashim because of the gallery that was constructed therein for the ladies participating in the Rejoicing of the Water Drawing. It seems to this writer that the meaning of the Arukh Laner’s comments is that the sacred service of the righteous ladies deserves overriding recognition, and so the courtyard is named as a token of appreciation to the ladies, paying homage to their spiritual leadership of Jewry. To that effect, one may metaphorically compare the matter to a king who surveys his army, as its various divisions (e.g. the marines, navy, air force, etc.) proudly parade before him in separate sections. To the king, each soldier is most precious, and each soldier is requested to stay with her/his kind, thus enhancing the organizational and visual magnificence of the military display. By analogy, the Jewish People is the holy legion of the King of kings, as per Exodus 12:41. Each soldier is precious to the King of kings, and indeed each soldier must realize that for her/his sake the entire universe was created, as per the mishnah in Sanhedrin 37a. And each soldier is requested by the King of kings to enhance the perceived Majesty of the King by remaining in the Sanctuary with her/his own division, separated from the other division with a formidable partition. The elite division of the King of kings’ army is the ladies’ division, and should be saluted accordingly. It is also appropriate to keep in mind the gemara in Bava Batra 58a, which discusses the identity of the all-time aesthetics contest winner. All people compared to Sarah our matriarch are like monkeys compared to a human being, declares the gemara. But Sarah herself compared to Eve is, in turn, like a monkey compared to a human being. And Eve herself compared to Adam is, in turn, like a monkey compared to a human being. And, finally, the clinching comparison presented by the gemara is that even Adam himself compared to the shekhinah is like a monkey compared to a human being. [“Adam bifnei shekhinah kikof bifnei adam”.] In other words, even the all-time winner of the pulchritude contest of human civilization [-Adam-] is nothing compared to the dazzling beauty of the divine presence. Experiencing a revelation of the shekhinah is the most overwhelming and wonderful manifestation of beauty that can be endured. And Deuteronomy 23:15 declares that the shekhinah visits the Jewish People when the Jewish People conducts itself with sanctity. Thus, it fortuitously emerges as a refreshing conclusion that the implementation of the proper specifications of a partition in the synagogue will surely lead to a manifestation in its midst of the greatest beauty – the sparkling beauty of the shekhinah.

Tam Vinishlam Shevach Li(K)el Borei Olam 32