Sunday, August 03, 2014

Postpartum Fasting on 9 Av

On Pesahim 54b, Rava rules, that, in principle, pregnant women and nursing mothers are obligated to fast on 9 Av; they don't have a categorical exemption simply on account of being pregnant or nursing.  

Nonetheless, Ramban, in Torat Ha'adam, Aveilut Yeshanah, writes that a woman for the first thirty days after childbirth or a sick person can eat based on her own feeling that she needs to do so, without a need to consult experts.  He argues that unlike on Yom Kippur, where the standard is that one only breaks the fast for danger to life (however broadly defined), on 9 Av the standard for breaking the fast is simply illness.  Maharshal (Responsa #53) rejects this distinction, saying that the standard is the same as on Yom Kippur, which means that seven days after the birth, a nursing woman is like anyone else.  She can only eat if some sort of assessment is made that she is ill.  Bah rejects this and supports Ramban’s more lenient standard.

Shulhan Arukh OH 554:6 rules like Ramban.   Rema notes that common practice was for nursing women to apply a Yom Kippur standard, only breaking the fast when they feared there was real danger.  But he adds that it is perfectly justified to be lenient like Ramban.  Bah reports that the stringent common practice was only in play when the woman no longer felt particularly weak as a result of the birth.

Later authorities argue over the precise meaning of the Shulhan Arukh’s standard.  Taz argues it is broadly permissive: Postpartum women are technically exempt from fasting on 9 Av for the 30 days, even though the common practice is to be more stringent.  Eliyah Rabbah is more concerned about the Maharshal’s position and recommends sticking with common practice that even a postpartum woman should only eat on 9 Av when she is determined to be sick.

What does this add up to in practice?  Mishnah Berurah 554:9 reminds us of the Bah’s description of common practice: women did not fast whenever they still felt particularly weak after giving birth, even after the first week.  And he says that any woman in such a state should not fast.  He also states that a woman who feels well and decides to fast should not complete the fast if she feels any kind of excessive weakness during the day.  Arukh Hashulhan 554:8 is more strident.  He says that all discussions of fasting by first-month postpartum women were based in earlier days when people were less pampered and more resilient when fasting.  [Read: they ate less, were less pampered and could much more easily handle a 25-hour fast as a result.]  But today, all authorities would agree that a woman should never fast within 30 days of childbirth.  [His language is חלילה!]  A woman who wants to do so should be stopped.


There is very solid opinion behind the notion that a woman in the first month after childbirth need not fast at all, as articulated by the Taz’s understanding of the Shulhan Arukh’s position and as extended by the Arukh Hashulhan.  One need not hesitate to rely on this opinion.  I am not sure I would go quite as far as Arukh Hashulhan and say that one is forbidden from doing so.  It can be difficult to simply write off a fast like this when one has done it your whole adult life.  This may be an example of a case that my teacher R. David Bigman has described as קולא שאין הציבור יכול לעמוד בו--"a leniency beyond what (some of) the community can bear."  Indeed, Eliyah Rabbah suggests that a postpartum woman, even if she knows she will likely have to break the fast, should fast as many hours as she can.  For those for whom that would be important and meaningful, one can follow the Mishnah Berurah’s approach: Have a good meal with lots of liquids right before the fast and at least go to bed without eating.  In the morning, one can assess the situation and make a judgment as to how much longer one can fast.  But a postpartum woman should certainly err on the side of drinking as soon as she experiences any sort of unusual weakness, because according to many authorities, there is no obligation whatsoever.

Tuesday, April 08, 2014

Who should fast the day before the Seder?

Yerushalmi Pesahim 10:1 records that Rabbi used to fast on the day before Pesah because he was a first born.  By contrast, R. Yonah, despite being a first born is said to have disregarded this practice.  The practice is presented as normative and common in Massekhet Soferim 21:1.

Regarding the scope of this practice, the discussion centers around how precisely we track the practice with the midrashic memory of who died in the plague of the first born in Egypt.  The Torah says—כי אין בית אשר אין שם מת, that there was no house without someone who died.  This suggests a very expansive definition of who died in the plague, since it was certainly not the case that every house had a first-born son born to its father, which would be the standard definition of first born in the context of inheritance and the patriarchal societies of the day.  Midrashic sources thus suggest a much broader scope to the plague.  Shemot Rabbah 18:3 describes the plague of the first born as affecting all first born, both matrilineal and patrilineal.  It goes further, suggesting that first born daughters were killed as well, and that only Bityah, Pharaoh’s daughter, was saved on account of Moshe.  Peskita Rabbati cites R. Abba b. Hama  as saying that a house lacking a first born would see its head of household (גדול הבית) struck down.  [The Mekhilta has a different approach to the phrase כי אין בית אשר אין שם מת, suggesting a desecration of already dead first-born and their tombs resulted in a feeling of catastrophe and death in every Egyptian home.]

Note that these various categories are different in terms of their resonance with other legal categories.  Patrilineal first-born are significant with respect to inheritance, the בכורה follows the first born of the father, irrespective of how many prior children a given wife has had with other men.  Matrilineal first-born are significant with respect to פדיון הבן, the redemption of the first born son.  In that context, only the mother’s first born is relevant, such that a father’s first child in a second marriage where the wife already had a child with another man is exempt.  By contrast, female first-born never otherwise have a legal status, and the same goes for head of household (outside of some peripheral laws related to mourning and the start of shiva).  This unevenness plays a role for some later interpreters in deciding which parts of these midrashim should be actualized in the context of the fast the day before Pesah.  On some level, the question is: Should the set of people who fast be seen as derivative of other categories in halakhah, or should the aggadah and the social realities it assumes and describes drive the practice?

Ra’aviah II:525, based on these midrashim, says that the first born of either the father or the mother must fast, since the plague in Egypt was all-encompassing of both types of first born.  However, he says that heads of household need not fast; we do not go that far in putting the midrash’s mythic memory into practice.  Shulhan Arukh OH 470:1 follows this view.

The children of kohanim/b’not kohanim and levi’im/b’not levi’im are exempt from פדיון הבן.  However, Responsa Maharil #14 says that these first born should fast—even if they are not the father’s first-born, such that they have no legal status of a first-born in any area of law—since at the time of the plague in Egypt, they had no special status vis-à-vis regular first born sons and therefore must fast to reflect gratitude and trepidation for having been saved from the plague.

Agudah Pesahim #91 follows the midrash in saying that first-born daughters must fast as well.  Responsa Maharil #14 reports that his father-in-law in fact made his daughter, Maharil’s divorcee (!), fast on the day before Pesah.  However, Sefer Maharil Erev Pesah #4 seems to suggest that most legal authorities did not require this.  Shulhan Arukh OH 470:1 reports the view of the Agudah.  Rema states that it is not the practice to require daughters to fast.  Gra grounds this in the fact that we have no evidence of the Torah ever prescribing a special legal status to the female first-born in any other area.

Finally, the laws of first-born are more broadly affected by miscarriages and stillbirths.  In general, any woman who has miscarried a significant way through her pregnancy or who has a stillbirth does not redeem the next son born to her.  However, Magen Avraham states that a first-born son after a miscarriage still fasts on the day before Pesah, since he is still a first-born for purposes of inheritance (through his father, presuming he is indeed his father’s first born).  He here appeals to other areas of law to fill in details with respect to this fast.  Hok Ya’akov leaves unresolved the case of a Caesarian-section birth, since such a child neither has a פדיון הבן nor is considered the first-born for purposes of inheritance (an interesting discussion in its own right).  Based on reinforcement from other legal categories, it would seem we should exempt, and yet based on the person’s social status and how they would have been regarded at the time of the plague of the first born in Egypt, they would certainly have been treated as a first born.  Kaf Hahayim says we should resolve this doubt leniently and not require such a person to fast.  Shevut Ya’akov II:16 clarifies that any live birth, even if the child dies within 30 days, is considered the first-born for purposes of eliminating the status of subsequent children from that category.


In many contemporary communities, this fast is deliberately evaded by attending a celebration completing learning, a tradition that goes back to at least the 16th century.  In this context, we might think not about who is expected to fast, but onto whom we project expectations of first-born status and how we maximize our tangible connection to our memory of the plague of the first-born.  We perhaps most fully feel the after effects of כי אין בית אשר אין שם מת by making sure that at least one person from every home, and especially all of our first born sons and daughters, begin the day before Pesah at minyan and joining in to an experience of meaningful learning.  We can thus enter, one home at a time, into Pesah with a profound sense of gratitude for our redemption through God’s hands.

Wednesday, January 29, 2014

Gender and Tefillin: Follow-up Questions and Responses

Is the exemption from tefillin for women really grounded in the exemption from Torah study?  I can see the Mekhilta argues that, but the Shulhan Arukh seems to say otherwise.  Don’t we follow the Shulhan Arukh’s lead on such matters?

Naturally, anyone interested in practical halakhah and the tradition of its transmission must be concerned with what the Shulhan Arukh and to account for it.  In this case, we will see that nothing in the Shulhan Arukh is (or actually could be) in conflict with the analysis in the Mekhilta.

Why cite the Mekhilta to begin with?  In general, I prefer to cite sources that are the earliest citations of a given idea.  It gives a sense of where in time and place they originate and also helps us understand how those ideas played out for later authorities and interpreters.  I learned this method most powerfully in a course on rishonim (medieval authorities) I took years ago with Professor Haym Soloveitchik at Yeshiva University.  Professor Soloveitchik was painstaking in tracing ideas backwards and forwards in time and emphatic that one could not fully understand an idea without understanding where it came from and what kinds of changes and developments it had undergone along the way.

Similarly, if there is a baraita in the Babylonian Talmud with a parallel in the Tosefta, I will also begin by quoting the Tosefta and then add in the ways in which its transmission in the Babylonian Talmud may tell a different story.  If nothing is different, I might not mention the Talmud’s version at all, since the idea originated in the Tosefta and nothing changes meaningfully in its later retelling.

In this case, the Mekhilta is indeed the first instance of the claim that tefillin is tied to Torah study, but the idea—as I noted in my original piece—is reproduced in the Babylonian Talmud on Kiddushin 34a.  Since some have questioned this, let me reproduce that reproduction here.

Mishnah Kiddushin 1:7 states that positive commandments caused by time (i.e. they apply at some times and not at others), are gendered: men are obligated in them and women are exempt from them.  The Talmud asks whence this is so:

תלמוד בבלי קידושין לד.
ומצות עשה שהזמן גרמא - נשים פטורות. מנלן? גמר מתפילין, מה תפילין - נשים פטורות, אף כל מצות עשה שהזמן גרמא - נשים פטורות; ותפילין גמר לה מתלמוד תורה, מה תלמוד תורה - נשים פטורות, אף תפילין - נשים פטורות.

Talmud Bavli Kiddushin 34a
“Women are exempt from positive commandments caused by time.”  Where is this from?  It is derived from tefillin; just as women are exempt from tefillin, so too women are exempt from all positive commandments caused by time.  And tefillin is derived from the obligation in Torah study; just as women are exempt from Torah stud, so too women are exempt from tefillin.

This passage says exactly what the Mekhilta says, and adds a step: 1) Torah study is gendered; this is assumed and unsourced.  (A few pages earlier, this notion is anchored in a gendered reading of the word banim, which is clearly a post facto Scriptural anchoring of a fact already assumed.)  As we saw, rabbinic sources uniformly and unanimously assert that women and slaves are exempt from Torah study.  2) Women are exempt from tefillin because they are exempt from Torah study.  3) Women are exempt from positive commandments caused by time because tefillin is such a commandment and all other similar mitzvot are compared to it for purposes of their gendered nature.

I was not engaging the question of the broader exemption from positive commandments caused by time referred to by Mishnah Kiddushin 1:7.  Those interested in the history of this category can now see a thorough treatment by Elizabeth Shanks Alexander in her recent Gender and Timebound Commandments in Judaism.  For our purposes, what is important is that the Talmud here presents tefillin as generative of, not generated by the gendered exemption from positive commandments caused by time.  Tefillin’s gendered nature is clearly presented here as derivative of a gendered conception of Torah study.  As we saw from the Mekhilta, that gendered conception is actually just one part of a broader class conception that exempts women and slaves from Torah study.

Indeed, this basic relationship between Torah study and tefillin spelled out in the Mekhilta and in Talmud Bavli Kiddushin is unambiguously affirmed by the Rambam:

ספר המצוות לרמב"ם מצות עשה יג
ושתי מצות אלו אין הנשים חייבות בהן לאמרו יתעלה (ס"פ בא) בטעם חיובם למען תהיה תורת י"י בפיך ונשים אינן חייבות בתלמוד תורה. וכן בארו במכילתא.

Rambam, Sefer Hamitzvot, Positive Commandment #13
Women are not obligated in these two commandments (of the tefillin of the arm and of the head), on account of the reason the Exalted One gave for their obligation: “So that the Torah of God will be in your mouth.”  Women are not obligated in Torah study.  And so they explained in the Mekhilta.

Seems simple, no?  But another passage in the Babylonian Talmud and the ways in which it is quoted have caused some confusion on this front.

Mishnah Berakhot 3:3 lays out a number of exemptions and obligations as well:

משנה מסכת ברכות פרק ג משנה ג
נשים ועבדים וקטנים פטורין מקריאת שמע ומן התפילין וחייבין בתפלה ובמזוזה ובברכת המזון:

Mishnah Berakhot 3:3
Women, slaves and minors are exempt from reading the Shema and from tefillin and are obligated in prayer, mezuzah and the grace after meals.

On its own, this is nothing more than a collection of mitzvot that do and don’t divide by class.  While gender is one subcomponent here, we see that slaves and minors are exempted as well.  The Mishnah tells us nothing about motivations, origins or values.  In the printed versions of the Babylonian Talmud, we have the following five short statements that explore this only briefly:

תלמוד בבלי מסכת ברכות דף כ עמוד ב
1) קריאת שמע, פשיטא! מצות עשה שהזמן גרמא הוא, וכל מצות עשה שהזמן גרמא נשים פטורות! - מהו דתימא: הואיל ואית בה מלכות שמים - קמשמע לן.
2) ומן התפלין פשיטא! - מהו דתימא: הואיל ואתקש למזוזה - קמשמע לן.
3) וחייבין בתפלה דרחמי נינהו. - מהו דתימא: הואיל וכתיב בה +תהלים נ"ה+ ערב ובקר וצהרים, כמצות עשה שהזמן גרמא דמי - קמשמע לן.
4) ובמזוזה פשיטא! - מהו דתימא: הואיל ואתקש לתלמוד תורה - קמשמע לן.
5) ובברכת המזון פשיטא! - מהו דתימא: הואיל וכתיב +שמות ט"ז+ בתת ה' לכם בערב בשר לאכל ולחם בבקר לשבע, כמצות עשה שהזמן גרמא דמי - קמשמע לן.

Talmud Bavli Berakhot 20b
1) “The reading of the Shema”—That is obvious [that women are exempt]!  It is a positive commandment caused by time, and women are exempt from all positive commandments caused by time!  What might you have thought? Since it includes the acceptance of the sovereignty of heaven [women ought to have been obligated].  The Mishnah comes to clarify that this is not so.
2) “And from tefillin”—That is obvious [that women are exempt]!  What might you have thought?  Since it is juxtaposed with mezuzah [in the Torah, women ought to be obligated in it, just as they are obligated in mezuzah].  The Mishnah comes to clarify that this is not so.
3) “And are obligated in prayer”—Because it is a request for mercy.  What might you have thought?  Since the verse “Evening, morning and afternoon” is written about prayer, we might have thought that it is a positive commandment caused by time [which would then be gendered].  The Mishnah comes to clarify that this is not so.
4) “And in mezuzah”—That is obvious [that women are obligated]!  What might you have thought? Since it is juxtaposed to Torah study [in the Torah, women ought to be exempt from it, just as they are exempt from Torah study].  The Mishnah comes to clarify that this is not so.
5) “And in the grace after meals”—That is obvious!  What might you have thought?   Since the verse says “When God gives you meat in the evening to eat and bread in the morning to satisfy you,” we might have thought that [blessing after food] it is a positive commandment caused by time [which would then be gendered].  The Mishnah comes to clarify that this is not so.

This text confirms one key thing we have already seen.  Again, Torah study is assumed to be gendered; this point needs no proof and is so clear that it might be used—even erroneously—to derive other points of law.  In addition, we see that mezuzah and Torah study function as fixed, opposite points: women are obviously obligated in the former and obviously exempt from the latter.  The only question is whether tefillin should follow the former or the latter in terms of its gendered nature.  This also mirrors the Mekhilta passage I quoted in my piece, which acknowledges this potential ambiguity.  The Talmud here confirms the Mekhilta’s interpretation there: Tefillin is to be aligned with Torah study, not with mezuzah.

However, there is an inkling of something different here.  Five times the gemara treats the Mishnah’s rulings as obvious; five times it explains how the Mishnah prevents us from being led astray by other ways of thinking.  [There was originally an exclamation of פשיטא prior to the section on prayer as well; its erroneous erasure by a scribe misreading Rashi will not concern us here.  A quick glance at the Tosafot on the top of the page confirms this point, as do the manuscript witnesses to this passage.]  What is obvious about the Mishnah’s rulings?  The Talmudic passage here seems to anchor that obviousness in our knowledge of the rule that positive commandments caused by time are gendered and those that are not are not.  If one knows that rule, wouldn’t one know all of the Mishnah’s rulings?  Put another way, what does this Mishnah add that we didn’t already know from Mishnah Kiddushin 1:7?  The Talmud must provide errant pathways we might have followed in each case in order to justify the seeming redundancy of this Mishnah.

Another version of the gemara—found in many manuscripts and preserved in the Rif, makes this linkage between Mishnah Berakhot 3:3 and Mishnah Kiddushin 1:7 by way of explanation of the Mishnah’s rulings rather than by being astonished by its apparent superfluity.  Here is that version, quoted from the Rif:

רי"ף מסכת ברכות דף יא עמוד ב-יב עמוד א
קרית שמע ותפילין דהוה ליה מצות עשה שהזמן גרמא וכל מצות עשה שהזמן גרמא נשים פטורות תפלה ומזוזה וברכת המזון דהוה ליה מצות עשה שלא הזמן גרמא וכל מצות עשה שלא הזמן גרמא נשים חייבות

Rif Berakhot 11a-12b
The reading of the Shema and tefillin are positive commandments caused by time, and women are exempt from all positive commandments caused by time.  Prayer, mezuzah and the grace after meals are positive commandments not caused by time, and women are obligated in all positive commandments not caused by time.

Both versions of the gemara seem to claim that we know that the reading of the Shema and tefillin are gendered because they belong to the category of commandments that are positive and caused by time.  In the first version of the gemara, this is a truth that endures despite potential evidence to the contrary; in the second version, it is a simple assertion.

Does this mean that, according to this gemara, women’s exemption from tefillin is a consequence of the gendered nature of the set of positive commandments caused by time?  You might argue that the gemara here rejects the Mekhilta and its grounding of tefillin in Torah study.  As further evidence for this claim, one might point to a number of medieval and early modern authorities that seem to use similar language.  Here are a few examples:

ספר החינוך מצוה תכא
ונוהגת מצוה זו בכל מקום ובכל זמן, בזכרים אבל לא בנקבות, לפי שהיא מצות עשה שהזמן גרמא...

Sefer Hahinukh #421
This mitzvah [of tefillin] applies in all times and places, to men but not to women, because it is a positive commandment caused by time…

בית יוסף אורח חיים סימן לח
ונשים ועבדים פטורים. משנה בפרק מי שמתו (ברכות כ.) ויהיב טעמא בגמרא משום דהוי מצות עשה שהזמן גרמא וכל מצות עשה שהזמן גרמא נשים פטורות.

Beit Yosef OH 38
“Women and slaves are exempt [from tefillin].  This is a Mishnah in the 3rd chapter of Berakhot.  The gemara gives an explanation: on account of it being a positive commandment caused by time, and women are exempt from all positive commandments caused by time.

שולחן ערוך אורח חיים הלכות תפילין סימן לח סעיף ג
נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא.

Shulhan Arukh OH 38:3
Women and slaves are exempt from tefillin, because it is a positive commandment caused by time.

Does this sort of language indicate that the Mekhilta is rejected in favor of another explanation?  Not at all.  R. Refael Mordechai Yehoshua Shaul (Turkey, 18th-19th c.) comments on this issue in his Dover Mesharim on Rambam Bikkurim 11:17.  He attacks Sefer Hahinukh for stating that women are exempt from tefillin because it is a positive commandment caused by time.  How can this be, given that the Talmud in Kiddushin is explicit that women’s exemption from tefillin is derivative of Torah study and is generative of the exemption from positive commandments caused by time?  He notes that the Rambam in Sefer Hamitzvot is consistent with the gemara and the parallel passage in the Mekhilta.  He leaves this challenge unresolved.
His son R. Avraham Shaul (Turkey, 19th c.), in a later gloss on this passage, notes that the same challenge can be leveled against the Beit Yosef, the Bah and the Perishah, all of whom use similar language to that of the Hinukh.  R. Avraham resolves the problem:

...לפי קעד"ן לומר דלא ניידי כל הני רבוות' מהאי היקשא דתפילין מת"ת ילפי' כמו שאמרו בש"ס דקידושין הנז' אבל הא מיהא תפילין מ"ע שהזמן גרמא היא דמינה נפקא כל מ"ע דהז"ג ותפילין עצמם היא מתלמוד תורה ועליה קאי כל הני מלכי רבנן אבל אין כונתם לפסוק עיקר דין תפילין עצמם מהיכא נפקא אלא כונתן לפסוק דנשים פטו' ממצוה זאת דתפילין והיינו טעמא משום דהוא מ"ע שהז"ג אבל תפילין עצמם אה"נ דנפקא מהיקשא דת"ת ותדע דכן הוא דהרי בש"ס דברכות ד"כ נקט משום שהיא מ"ע שהז"ג כמ"ש רש"י ז"ל יע"ש וקאי עלה דקידושין דל"ד ע"א דאלת"ה קשיא דאיך נקטו הכא בש"ס דברכות דטעמא דנשים פטורות הוא משום דתפילין הם מ"ע שהז"ג וכל מ"ע שהז"ג נשים פטורות והתם בקידושין נקט דתפילין נשים פטורות משום דגמר לה מת"ת אלא מוכרח הדבר לומר כדכתיבנא ופשוט.

…In my humble opinion, none of our masters departed from the Talmud’s derivation of tefillin from Torah study in Kiddushin.  Nonetheless, tefillin is indeed a positive commandment caused by time from which we derive [the gender exemption from] all other positive commandments caused by time, while tefillin itself is derived from Torah study and all of those majestic rabbis were assuming this.  Their intention was not to make a ruling regarding the origins of [the gendered exemption from] tefillin   Rather, their intention was to rule that women are exempt from this mitzvah of tefillin and the explanation is because it is a positive commandment caused by time, but tefillin itself is certainly derived from the connection with Torah study.  This must be true, because Berakhot 20 states that women are exempt from tefillin because it is a positive commandment caused by time (see Rashi there) and this assumes [the process laid out in] Kiddushin 34a.  If you don’t say this, then how could the Talmud in Berakhot given the reason for women’s exemption from tefillin being on account of its being a positive commandment caused by time while the Talmud in Kiddushin takes the position that women are exempt because we derive it from Torah study.  Rather, it must be as I said, and the matter is simple.

In other words, R. Avraham argues that there is no reason to assume that the gemara in Berakhot is rejecting the gemara in Kiddushin.  Rather, the gemara in Kiddushin is, like the Mekhilta, focused on driving values and origins.  That passage plainly and unambiguously states that the gendered nature of tefillin is derivative of Torah study and generative of positive commandments caused by time.  The gemara in Berakhot is reflecting that once that derivative and generative work has been done, tefillin resides in the very category it helped create: the set of positive commandments caused by time.  Therefore, though its gendered nature is legally and logically prior to that category, it nonetheless lives in that category once it generates it.  All the gemara in Berakhot notes is that we would expect all positive commandments caused by time to be gendered and therefore the Mishnah need not rule on specific cases.  When the Beit Yosef says יהיב טעמא, he means that the gemara provides an explanation, not an etiology, for tefillin’s gendered nature.  The gemara is saying that it makes sense (or is obvious) that the Mishnah rules that women are exempt from this mitzvah given that it is, after all, a positive commandment caused by time.  Similarly, the Shulhan Arukh merely quotes this same language and appeals to the reader to understand why it makes perfect sense that tefillin is gendered; after all, they belong to a gendered category.  This is not a comment weighing in on the sugya in Kiddushin, which is a discussion of origins, which was my focus.  There is no way to dismiss that explicit sugya in Kiddushin and its channeling of the Mekhilta.  The Shulhan Arukh’s language merely reflects the end result of that multi-step process: tefillin generates and ultimately resides in the category of positive commandments caused by time.

The concern around guf naki seems serious and seems like it might track with one’s level of obligation.  Specifically: might we not say that one who is exempt from tefillin cannot be entrusted with such a serious mitzvah?

Let us remember than for many medieval authorities (I cited them in my piece), women are explicitly permitted to wear tefillin, despite their exemption.  But this question emerges from the thread of thought and psak exemplified first by the Maharam of Rothenberg and later the Rema, who hold that women’s voluntary wearing of tefillin should not be tolerated.  For them and for those who limit their rulings to practices in accord with them, is there a way of justifying women who wear tefillin without claiming that Torah study is now a gender-blind obligation, along with its physical corollary of tefillin?  Put another way: is there a way to address the concern of guf naki without addressing the more fundamental question of obligation?

Perhaps not.  Indeed, I argued that the whole gendered application of the concept of guf naki was itself an effort to reinterpret a strand of thought that originally assumed women could not put on tefillin because they were exempt.  R. Yitzhak of Dampierre, respecting of this source but resistant to its legal assumption, proposed the framework of guf naki as an alternate framework for understanding its concern.  To the extent that guf naki is actually nothing more than the preservation of an age-old resistance to women wearing tefillin in different legal terminology, then this concern ought not to be easily dismissed.  As I noted in my piece, I indeed would not expect communities that continue to exempt contemporary women from Talmud Torah to have more than a few isolated individual women who wear tefillin.  Magen Avraham indeed argues that women can never be trusted to keep their bodies sufficiently clean (or to control their flatulence) as long as they are not truly obligated in this mitzvah by an imperative more transcendent than their internal, personal motivation.  Arukh Hashulhan says something similar.  I think it is correct to say that there is a robust strand in halakhic thought that would never make much room for women to wear tefillin so long as they are not obligated.  And for one who understands guf naki to be about flatulence—in keeping with the gemara’s discussion of this concept—it is indeed hard to imagine that anything would change in the contemporary world.  This strand can trace its roots back to the tradition I cited from the Talmud Yerushalmi.

But this is only one side of the story.  Guf naki was the language for channeling that age-old resistance in the context of a legal culture that generally supported women’s voluntary performance of mitzvot.  A reassessment of guf naki, however, might be precisely the way that a legal culture generally deferential to the Maharam and the Rema would find its way back to the many medieval positions that did permit women to wear tefillin voluntarily.  Guf naki is indeed about flatulence in its Talmudic context, but it is not at all obvious that that is what it means when R. Yitzhak borrows it from that context and genders it.  I cited the Maharshal who is clear that guf naki as used by R. Yitzhak ought to be understood as referring to hygiene issues primarily related to economic status and the presence of children.  Anyone who adopts that definition must acknowledge that there have been dramatic shifts in recent centuries and decades such that the concern would no longer apply to most women at most points in their life (or moments in the day).  Even Magen Avraham and Arukh Hashulhan do not obviously define guf naki as related to flatulence in the context of this term’s use by R. Yitzhak.  If so, even they might not be concerned about exempt women voluntarily performing this mitzvah in a time and place where it is so easy to attain the standard demanded.


In short, to the extent guf naki is actually about standards of cleanliness, it makes sense to take a different approach in the contemporary world.  To the extent guf naki is the legal language for channeling an age-old opposition to women voluntarily wearing tefillin (found in the Yerushalmi but not in the Bavli), that opposition should not be expected to fade until a more thoroughgoing reassessment of the mitzvah of Torah study triggers a corresponding reassessment of the gendering of the obligation to wear tefillin.

Sunday, January 26, 2014

Gender and Tefillin: Possibilities and Consequences

Rabbi Ethan Tucker

            In the recent flurry of discussion around gender, tefillin and Orthodoxy, a key point about the essence of tefillin has been missed.  Put simply, tefillin, at its core, encodes full citizenship in the world of learning.  Wearing tefillin is nothing less than the embodiment of the value of Torah study, the manifestation of a commitment that by studying Torah, Jews strive to make their very essence a concrete extension of God’s will in the world.  Those who wear tefillin thereby demonstrate their full responsibility to transmit and produce the next generation of Torah.

            Though many of us associate tefillin with prayer, on account of the fact that Jews generally only wear them at morning services, the origins of this mitzvah are in fact not connected to prayer but to study and learning.  Any thoughtful and coherent approach to gender and tefillin should therefore not track with our discussions of gender and prayer but rather with our vision of education and how we understand women’s citizenship in the creative and authoritative process of transmitting and interpreting Torah.

            Let us review the origins of the gendering of the mitzvah of tefillin, understand the meaning behind it and then assess our options for responding to our current moment.  How we think about this issue, perhaps even more than our specific policies, is critical to how the as yet unknown future of gender and Jewish religious practice will unfold.

Why were women exempted from tefillin?

Tefillin is not just any mitzvah.  There is something uniquely powerful about it to women who wish to wear them and something uniquely repellant to those who wish they wouldn’t.  Why?

To begin to get at an answer, we need to go back to the origins of the gendered approach to tefillin.  How do we even know women are exempt in the first place?  Our earliest evidence comes from the Mekhilta, a commentary on the book of Exodus drawing on traditions from the sages of the early first millennium of the common era, the same Sages who feature prominently in the Mishnah.  Many passages in the Mekhilta—like the one we will look at—appear in the Talmud and serve as authoritative sources for Jewish practice until today.  Much of the Mekhilta is a close reading of verses in order to derive or justify practical law.  This passage is expounding on Exodus 13:9:

שמות פרק יג
וְהָיָה לְךָ לְאוֹת עַל יָדְךָ וּלְזִכָּרוֹן בֵּין עֵינֶיךָ לְמַעַן תִּהְיֶה תּוֹרַת יְקֹוָק בְּפִיךָ כִּי בְּיָד חֲזָקָה הוֹצִאֲךָ יְקֹוָק מִמִּצְרָיִם:

Exodus 13:9
It shall be for you a sign upon your arm and a reminder between your eyes, so that God’s teaching will be in your mouth, for God took you out of Egypt with a strong arm.

The language of “upon your arm” and “between your eyes” is understood to refer to tefillin, and the Mekhilta expounds on the next phrase of this verse as follows:

מכילתא דרבי ישמעאל בא - מסכתא דפסחא פרשה יז
"למען תהיה תורת ה' בפיך" למה נאמר? לפי שנאמר "והיה לך לאות": שומע אני אף הנשים במשמע? והדין נותן: הואיל ומזוזה מצות עשה ותפילין מצות עשה, אם למדת על מזוזה שהיא נוהגת בנשים כבאנשים, יכול אף תפילין ינהגו בנשים כבאנשים? ת"ל "למען תהיה תורת ה' בפיך"—לא אמרתי אלא במי שהוא חייב בתלמוד תורה. מכאן אמרו הכל חייבין בתפילין חוץ מנשים ועבדים.
מיכל בת כושי היתה מנחת תפילין, אשתו של יונה היתה עולה לרגלים, טבי עבדו של רבן גמליאל היה מניח תפילין:
"ולזכרון בין עיניך למען תהיה תורת ה' בפיך"—מכאן אמרו כל המניח תפילין כאלו קורא בתורה, וכל הקורא בתורה פטור מן התפילין.

Mekhilta of R. Yishmael, Bo, Massekhta de-Pisha Parashah 17
“So that God’s teaching will be in your mouth.”—Why was this said?  From the statement “It shall be for you a sign,” I might have thought that women are included [in the obligation to wear tefillin].  Indeed, it would be logical: given that mezuzah and tefillin are both positive commandments, if mezuzah is gender blind [because it applies to anyone who lives in a Jewish home], ought not tefillin also be gender blind?  Therefore, the verse says: “So that God’s teaching will be in your mouth”—[Tefillin only applies] to one who is obligated in Torah study.  This is the basis for saying that all are obligated in tefillin except for women and slaves.
Michal bat Kushi used to put on tefillin, Yonah’s wife used to make the festival pilgrimage, Tavi, Rabban Gamliel’s slave used to put on tefillin.
“As a reminder between your eyes, so that God’s teaching will be in your mouth”—This is the basis for saying that putting on tefillin is like reading from the Torah and one who reads from the Torah is exempt from tefillin.

            The Mekhilta makes a number of key points.  First, it anchors the exemption from tefillin in an exemption from the obligation to study Torah.  [This same linkage is affirmed on Talmud Bavli Kiddushin 34a.]  This is the first thing we must understand:  Tefillin is not a mitzvah anchored in prayer; it is a mitzvah anchored in the obligation to learn. Perhaps more powerfully: those who wear tefillin are entrusted with a microcosmic Torah that they place on their bodies.  It doesn’t make sense for someone who does not share equally in the burden of the intellectual and spiritual core of Torah study to be obligated in its physical corollary.  If that wasn’t clear enough, the final line of the Mekhilta passage above emphasizes that learning Torah and wearing tefillin are essentially the same thing; indeed, one who is truly learning is exempt from wearing tefillin while doing so!

            Second, the Mekhilta takes women’s exemption from Torah study for granted, apparently as a self-evident fact known from elsewhere.  Indeed, all early rabbinic sources assume—but do not demonstrate—the exemption of women from Torah study.  It is only much later sources in the Talmudim (Yerushalmi Berakhot 3:3 and Bavli Kiddushin 29b) that link this fundamental assumption back to verses, stating that the phrase found in Deuteronomy 11:19, ולמדתם אותם את בניכם—you shall teach them to your banim—intends banim not to be read as the gender-neutral “children” but as the gender specific “sons.”  [Rambam Talmud Torah 1:1 notably does not cite this prooftext, recognizing it to be a post facto scriptural anchoring of a self-evident law.]  Early figures in Mishnah Sotah 3:4 argue whether it is critical nonetheless to teach women Torah or whether this is unnecessary, foolish or forbidden.  But none question the basic assertion: women themselves are not expected to sustain and produce a culture of learning.

            Third, and most important: the Mekhilta makes clear that women’s exemption from Torah study and the corollary exemption from tefillin are not about gender at all.  In fact, women and slaves are exempt from these mitzvot.  Indeed, the supplemental stories about Michal and Tavi—both of whom don tefillin despite their exemptions—treat as equally exceptional and interesting the notion that a woman or a slave would put on tefillin.  This strongly suggests that Torah study and tefillin are both markers of freedom and full citizenship in rabbinic society.  I would go further: it is not at all clear that rabbinic sources generate these categories internally.  They may well take external categories from the Roman world in which they live and map them onto our internal rituals and practices.  Women and slaves—neither of whom could vote in ancient Rome, nor in most ancient civilizations—are self-evidently not expected in the Beit Midrash, which is the seat of rabbinic power, creativity and influence.  The Mekhilta picks up only from that starting point—it would be absurd for someone so excluded to be expected to wear tefillin.

This approach to thinking about Torah study and tefillin is borne out in other sources from the Talmudic era.  On Talmud Bavli Ketubot 28a, R. Yehoshua b. Levi rules that it is forbidden for a master to teach his slave Torah.  On Talmud Bavli Gittin 40a, he offers a corollary ruling: a slave who puts on tefillin in the presence of his master is thereby emancipated!  On Ketubot 28a, Rashi pithily explains why Torah study and putting on tefillin are so problematic for a slave: they are מנהג בן חורין—the way free people act.  Based on a slightly modified version of R. Yehoshua b. Levi, later poskim (Rambam Avadim 8:17 and Shulhan Arukh YD 267:70) rule that actively clothing a slave in tefillin or instructing him to read Torah in public renders him free, in a way that no other mitzvah performance would.

We see here how the commandments of Torah study and tefillin are, for Hazal, intimately bound up with notions of freedom and full citizenship.  The performance of other mitzvot is less indicative of these states of being and social standing.  Once we acknowledge the inextricable link between Torah study and tefillin, an inescapable conclusion emerges: Any discussion of gender and tefillin must be connected to a discussion of gender and Torah study.  This is especially true in the context of a Jewish school, which is responsible for training the next generation of Torah students and scholars.

Thinking about gender and tefillin in the contemporary world: Four Approaches

There are at least four ways to think about gender and tefillin.

Nothing has Changed, Take 1

One approach is to maintain that women are indeed exempt from Torah study and remain, at best, visiting and welcome members of the Beit Midrash.  Here and there, they may make significant contributions, but we and God expect nothing of them when it comes to generating the culture of learning that lies at the heart of a community of Torah.  Their exemption from tefillin is consistent with and a powerful reminder and marker of this fact.  And, in the context of this assumption, it would indeed probably only be wise for a few isolated individuals (like Michal and Tavi, the woman and slave mentioned as exceptions in the original Mekhilta source quoted above) to take on a mitzvah that has traditionally had such high standards and potent symbolism associated with it.  This approach would use the language of option—at most bordering on encouragement—when speaking about women and tefillin, since women remain different from men with respect to their underlying obligation to the culture of Torah study.  That underlying gender gap can either be grounded in a claim that women remain descriptively or prescriptively lower-class citizens in the broader society, or in an ontological claim, grounded in biology, that posits that men and women are different on the intellectual and spiritual claim and thus we expect different things from them.

This approach maintains a great deal of harmony with earlier sources in affirming the tight connection between Torah study and tefillin.  Its weaknesses: 1) If it posits or reifies the social inferiority of women, it is increasingly out of step with reality.  2) If it imports a biological essentialism that is lacking in the early sources, it fails to explain why slaves are exempt from tefillin as well.  3) It does not make any sense of co-ed religious schools that assign an equal load of Jewish learning to boys and girls and even have them learning in the same classes, sometimes with women teaching the Torah content.  It is not really coherent for a school to suggest that a girl is exempt from Torah study even as she can be given an F in a mandatory Talmud course. 

But I suspect this approach will continue to have strength in educational settings where men and women are segregated and do not share the same curriculum.  And even in coeducational settings, if the students are treated as consumers, rather than potential producers of Torah, it may well be that women will never truly see themselves as protagonists in the rabbinic conversation (whose male-dominated landscape presents enormous challenges for gender-blind Torah to begin with) and thus find it odd to think of themselves as obligated in Torah study and its corollary, tefillin.  There are unlikely to be more than a few outlier women who wear tefillin in such communities, as has been the case throughout Jewish history.  Indeed, given some of the other concerns historically raised surrounding tefillin—how they have become culturally gendered male and our reticence around wearing them more than the absolute minimum demanded—such communities are likely to be negative, not just neutral, about most cases of women and tefillin.

Severing the link between Talmud Torah and Tefillin

A second approach is to demand of women that they be full members of the Beit Midrash, bearing its burdens of consistent learning and daring creativity, while maintaining a gender gap surrounding the obligation of tefillin.  The key to this approach is to weaken the link between tefillin and Torah study.  Boys and girls may be equally obligated to study Torah, but only boys put on tefillin, which will no longer be strongly linked with Torah study.  This approach has been taken by many Conservative institutions for some time and is now currently emerging from a number of modern Orthodox high schools.

In certain ways, this feels like a safe move: there is ample precedent for women to study Torah, at least in certain contexts, such that equally including men and women in this act doesn’t feel violative of tradition and expected norms of behavior.  By contrast, tefillin, with its more checkered history around gender, is more fraught, and thus the temptation to dissuade, or at least not demand, gender-equality in this area of practice.  In fact, I suspect the conservatism of this approach will make it attractive for many.  But I fear the link between Talmud Torah and tefillin will not be so easily severed (quite aside from the question of whether it should be—I think it should not). 

That leads me to a fear of two possible outcomes, both of which would be undesirable and would contraindicate the religious values of those advocating this approach: 1) By maintaining a gender gap around tefillin, we will unwittingly maintain a gender gap in Talmud Torah.  Men and women who grow up in a world in which men are expected to put on tefillin and women are not will come to understand that the enterprise of Torah expects men to produce Torah and women, at best, to consume it.  This is further reinforced by the fact that there are so few places where women can learn for many years at an advanced level.  The “tefillin gap” will sadly confirm that women are not being trained as poskot who can take full responsibility for Torah.  When done consciously, this is the first approach outlined above, and it has integrity.  When this is an unconscious result and is the opposite of what the institutions say they want with respect to women’s Torah study, it is a religious and pedagogic failure.  2) By maintaining a gender gap around tefillin in a secular and religious context that otherwise demands high intellectual and spiritual achievement from both men and women, the mitzvah of tefillin will (further) suffer in practice and gradually become irrelevant.  Boys will grow up in a beit midrash with peers from whom they learn and with whom they generate Torah.  They will see that those peers do not put on tefillin.  They will reach an inevitable conclusion: Tefillin is a strange, arcane ritual devoid of much meaning that is at best the basis for a nostalgic male bonding ritual at a Men’s Club event.  Tefillin will be diminished and will no longer be a powerful embodiment of a Talmud Torah whose telos is not in the mind, but in the body.  It will be a mere ritual practice that affords meaning to those who connect with it.  I suspect this process is farther underway with more observant boys than we are aware of. 

This approach therefore seems unstable.

Nothing Has Changed, Take 2

A third approach would hark back to the Mekhilta and its assumption that women and slaves were exempt from Torah study.  It would recognize that the exemption was based on class and social standing, not gender alone, and therefore conclude that in a society in which men and women are equal under the law (with respect to suffrage and basic rights) and equally educated, the obligation in Talmud Torah is automatically gender blind.  The dramatic upheaval in the social status of women in recent decades does not change anything about the halakhah in this regard, it simply applies the eternal halakhah to a new reality: the set of free citizens expected to contribute to the culture of Torah study and creativity has grown.  By extension, the obligation of tefillin is gender-blind as well, even though it was not previously.  The scope of a set of statutes exempting minors from culpability in an area of law might dramatically change if the state redefines who is considered a minor (e.g. by lowering the age of majority from 21 to 18) without the core value of the law (minors are exempt) changing one iota.  So too, this approach contends that nothing has changed: free citizens are obligated in Torah study and its physical corollary, the wearing of tefillin.  Whether or not contemporary men and women follow through on their commitments in this regard, the driving texts and values expressed by the Written and Oral Torah demand that they rise to these expectations.

The great advantages of this approach are its honesty, its fidelity to the values of the earlier texts and its compatibility with the (stated) goals of coeducational schools with rigorous expectations around Torah study.  Such schools (and the communities they spring from) do expect the same things from their boys and girls and don’t think of their Talmud classrooms as functioning in academic mode for boys and extracurricular mode for girls.  The disadvantage: It ignores history entirely, particularly the deeply gendered history around the highly embodied mitzvah of tefillin.  To expect that all women, en masse, suddenly put on tefillin after millennia of communal indifference (and some significant opposition) may be impractical and unwise.  And the practice of putting on tefillin can alienate many women from their home community even if they are comfortable with the practice in private.  No matter how good the theory of this approach is, any failure to acknowledge and name the complicated feelings of many women around tefillin may undermine an eventual goal of a gender-blind practice.  While I endorse this approach philosophically, I don’t think it exhausts our responsibility in addressing this issue.

Moving through history towards core values

A fourth approach builds on the third, assuming gender-blind obligation in Talmud Torah in the contemporary world and therefore a theoretical corollary gender-blind obligation in tefillin.  But in reality, this approach would acknowledge that tefillin might be very different for women than other mitzvot from which they were classically exempt, including the study of Torah.  Tefillin has a deep history of being male, and as a mitzvah that is worn, it feels to many women like the inappropriate donning of clothing intended for another gender.  This is already captured by Targum Yonatan on Deuteronomy 22:5—a verse forbidding cross-dressing—which describes tzitzit and tefillin as male garments not to be worn by women.  Though this explicit reason does not achieve acceptance in mainstream halakhic sources (see Responsa Rabaz III:73 for one example), the instinct behind it likely informs some of the opposition to allowing (classically exempt) women to perform this mitzvah optionally.  It can hardly be an accident that the only two mitzvot that medieval German authorities (Maharam of Rothenberg and Maharil) single out as inappropriate for women to perform voluntarily are tzizit and tefillin, both of which involve wearing something on the body.  While mainstream sources do not actually consider women who wear tefillin to violate a Biblical ban on cross-dressing, this concern is plausibly strong enough to justify a delay in how easily and quickly we expect contemporary women to fulfill their obligation.

Engaging and legitimating discomfort for those who experience women and tefillin as an inappropriate crossing of gender boundaries has two advantages: 1) It can maintain a gendered practice around tefillin without claiming that women are exempt.  Men and women can be equally obligated in Torah study, even as the cultural gender context surrounding its physical manifestation might make some women feel they are doing something forbidden when they wear it.  We are under no obligation to cultivate that feeling—indeed, those following this approach probably have an obligation to steer people away from it—but we do no one a service by pretending it doesn’t exist when it is real.  2) Concerns about gendered attire are notoriously unstable across and even within cultures.  Honoring a particular woman’s feeling or experience in this regard is not a normative statement about how subsequent generations ought to feel.  Those who grow up with mothers who put on tefillin at home and with girls who do so at school will no longer feel the gendered associations in the same way that their ancestors might have.  We can thus maintain a gender-blind discourse around obligation—which is critical to be faithful to what Talmud Torah and tefillin are supposed to be about—while creating the space and pace of change required to move from one paradigm to another.  [Perhaps making tefillin more personalized might also help women take on this mitzvah.  I will note that there is no obstacle to painting the backs of the straps various colors (Shulhan Arukh OH 33:3); that might enable some communities to personalize tefillin in a way that would feel more comfortable around the clothing issue.]

Those taking this approach will avoid speaking about the contemporary obligation in tefillin in gendered terms, even as they will acknowledge that the implementation of a theoretically gender-blind mitzvah against the backdrop of a deeply gendered history cannot (and perhaps should not) happen overnight.  Those who have already been raised with a gender-blind model of this mitzvah will be poised to be particularly important and influential leaders in this transitional period.

My money is on the fourth approach.  As a father, I will in the next year purchase tefillin for my daughter and present it to her just as I would to my sons: as one of the most powerful and beautiful ways that we transform our Torah into something concrete and transform our bodies into agents of God.  As a teacher and educator, I will never speak about options or exemptions for women so as not to torpedo this mitzvah’s future, but will also fight to create space for women to make the journey towards tefillin in a way that honors its complicated past.

As the Mekhilta teaches us, our connection to tefillin is ultimately derivative of the culture of Torah study we feel obligated to build.  My dream is that I will someday learn insights of Torah from my grandsons and granddaughters, because they felt obligated to participate in creating a culture of learning that will continue to sustain our people.  I expect that tefillin, in keeping with its essence, will be an integral piece of turning that dream into a reality.

Appendix: Historic Opposition to Women Wearing Tefillin

Voluntary wearing of tefillin

For much of Jewish history, most Jewish communities and authorities expressed no resistance to women wearing tefillin.  The Mekhilta’s report above about Michal provides a concrete example of a specific woman who did so, despite being exempt.  Talmud Bavli Eruvin 96a reports this tradition with an explicit addendum saying that the Sages were aware of her practice and that of Yonah’s wife and did not protest.  Tosefta Eruvin 8:15 also seems unfazed by the possibility that women would put on tefillin when necessary to transport them from one place to another on Shabbat.

By contrast, Yerushalmi Berakhot 2:3 challenges this report of rabbinic acquiescence to Michal and Yonah’s wife with the fact that women are exempt from the mitzvot they performed.  The assumption is that women should not be doing mitzvot—or at least these mitzvot—if they are exempt from them.  R. Abahu thus contradicts the earlier report, declaring that Yonah’s wife was sent away from her pilgrimage and that the Sages objected to Michal’s wearing of tefillin.

In any event, the overwhelming majority of medieval authorities follow the Talmud Bavli’s lead, treating its report of rabbinic acceptance as normative.  They therefore show no special concern about allowing women to put on tefillin any more than they would for other mitzvot from which they were classically exempt.  Many explicitly permit them to do so.  [For a few examples, see Tosafot Eruvin 96a, Sefer Hahinukh #421, Meiri on Eruvin 96a, Rashba Rosh Hashanah 33a, Responsa Rashba I:123, Ritva on Eruvin 96b.]

גוף נקי—A Clean Body

Nonetheless, some kept the disapproving strand in the Talmud Yerushalmi alive.  R. Yitzhak of Dampierre (France, 12th c.) tried to expound on the basis for the objection to Michal.  He, following in the wake of his uncle, R. Tam, was a forceful proponent of the idea that women could voluntarily perform mitzvot from which they were exempt.  He was opposed to the notion that the concerns about Michal and Yonah’s wife were grounded in a general discomfort with women performing mitzvot from which they were exempt.  Instead, he searched for other reasons to explain the Sages’ opposition in this case.  Yonah’s wife, he argued, was sent away for fear of the improper optics of bringing an unnecessary sacrifice to the Temple. 

In trying to explain the objection to Michal’s tefillin, R. Yitzhak reached for another concept associated with tefillin—the requirement to maintain a clean body.  On Talmud Bavli Shabbat 49a, R. Yanai states this requirement as a prerequisite for wearing tefillin.  This seems to have been a fairly minimal standard: Abaye defines it as controlling flatulence while wearing tefillin and Rava defines it as not sleeping in them.  Nonetheless, we can hear over time attempts to use this requirement to justify not wearing tefillin at all.  Tosafot on Shabbat 49a argue that this move is illegitimate, because a person can certainly easily meet this standard and they bemoan the fact that tefillin is a widely neglected mitzvah.  Indeed, R. Moshe of Coucy (Semag Asin #3), pleads with the men of his time to at least wear tefillin during prayer; they can surely maintain their bodily integrity during such a limited amount of time in such a lofty context.  [This helps explain our current practice of wearing tefillin only during morning prayer.]

Back to R. Yitzhak: in searching for a way to explain the resistance to Michal, R. Yitzhak suggests that R. Abahu in the Yerushalmi felt that women were not as careful to maintain a clean body as were men.  Therefore, even if they are generally allowed to perform mitzvot from which they are exempt, women should not put on tefillin because of these bodily concerns.  It is not clear if R. Yitzhak’s claim relates to the standards articulated by Abaye and Rava, or if he is appealing to a sense (or a reality?) that women’s bodies were less clean than those of men, either due to menstruation or the care of children.

We should not, however, expect to find full coherence in R. Yitzhak’s innovative gendered use of guf naki, for several reasons:  1) R. Yitzhak is explaining a tradition that he does not consider authoritative, rather than ruling like it.  The notion that women could perform mitzvot from which they were exempt was a point of consensus among the Tosafists and they saw Michal’s wearing of tefillin as indicative of this position.  2) He is primarily motivated not by the proper normative meaning of the tradition in the Yerushalmi, but by providing an alternative to an interpretation he wants to marginalize: the idea that women may not more generally perform mitzvot from which they are exempt.  3) He is doing all of this in a culture where barely any men are putting on tefillin, such that any limitation on tefillin and women is of minimal impact on female participation in religious life.

It is the Maharam of Rothenberg (Germany, 13th c.) who is the first figure to affirm the normative status of the Yerushalmi’s tradition and to adopt R. Yitzhak’s explanation of it.  He thus argues for objecting to women’s donning of tefillin on account of their inability to keep their bodies sufficiently clean.  It is worth noting that Maharam, like those before him, had no broader objection to women performing mitzvot from which they were exempt.  It is also worth noting that Maharam’s opposition to tefillin for women is followed by Maharil’s opposition to tzitzit for women a century later (also in Germany).  Given the awkward way in which guf naki is brought into the gendered conversation about tefillin, it is not implausible to see it as the legal language for an opposition to what might have been perceived as a kind of ritual cross dressing, specific to these mitzvot that are worn.  If so, we would expect that opposition to fade if and when tefillin were no longer experienced as necessarily male.  [There are many such instances in this area of halakhah, such as in the gendered history of pants.]

Rema follows Maharam’s approach and its language of guf naki eventually dominates the Ashkenazi communal landscape, leading to common practice in Orthodox communities until today: women are allowed and even encouraged to perform mitzvot from which they were classically exempted but are dissuaded from putting on tefillin.


However, even within the framework of guf naki, there is a solid case for claiming that this is no longer an obstacle.  Maharshal (Yam Shel Shlomo Kiddushin 1:64) justifies Maharam’s approach as the way all Sages always thought about women and tefillin.  Michal, he argues, avoids rabbinic opprobrium because she was exceptional: she was extremely righteous, was part of a royal family, had no children and could easily keep her body clean, unlike other women.  The advent of indoor plumbing and hygienic products has enabled all people to be cleaner than in earlier centuries, and the advances for feminine hygiene have been particularly striking.  Even one on the branch of the halakhic tree that is concerned about guf naki in a gendered way can plausibly claim that such concerns no longer apply the way they once did.  But as we have shown, guf naki is likely not really the heart of the matter to begin with: tefillin’s connection with Torah study and the issues of gender and class that surround it are much more central.