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.

1 comment:

Mikhal-Sarah Gordon said...

Were standards of cleanliness for Jewish women much lower than those for Jewish men (or for women generally as compared to men)? Based on the Western world of the last four hundred years or so, the standards of cleanliness are as high or higher for women as for men, and the social censure for failing to uphold them much higher. Women who failed at cleanliness got several words of their very own to describe them, "Slattern" and "moggy", ones not applied regularly to equally sloppy men. Both date back to the 17th century.
In a recent study it was shown that women who interrupt a meeting (that is really an experiment) to use the bathroom are judged negatively, while women who interrupt it to get paperwork are not. Men are not judged for either. As you can imagine, women learn very young to control their flatulence...for HOURS at a stretch, not just during morning prayers.
One senses that, as with comments that women cannot control themselves sexually, there is a degree of projection happening. As with sexuality and bathroom issues, the bar for guf naki is set twice as high for women, and policed ten times as strictly. Nobody interrogates men about their washing habits as they unzip their tefillin bags: they are assumed to know and be correctly fulfilling the requirements automatically, while for women the assumption is ignorance and bad practice. Yet women are entirely trusted with family purity: to count correctly, to know red day discharge from white day discharges (or know when to consult a Rabbi on the ambiguous), and to bathe/shower herself correctly before entering the miqvah. That's a lot of responsibility for people some of these Rabbis think can't walk and chew gum.
At the end what gets me on the guf naki issue is that not one person who opposes women wearing tefillin has ever suggested I not touch a mezuzah, which contains 2 of the 4 passages in the tefillin, or that I not touch the Torah when it comes round, or not study it. In fact I've been told the Torah CAN'T be made tamei by women. Nobody has ever explained why tefillin differ in this regard. What are the sources for that?