Halakhic Thinking re: Mechitsah

                 The Low Down on the Height of the Mechitsah     

Toward Defining The Contemporary Orthodox Identity

By Alan J. Yuter

The  synagogue mechitsah, the partition separating women from men in the Orthodox shul, has evolved over time to become the defining distinction between what is accepted to be authentic Orthodox Judaism that the Torah law prescribes and non-compliant, non-Orthodox communities. As with any culture, a person’s actual opinions are inevitably conditioned by one’s teachers and peers, rabbis and rebbes, congregations and communities, and peers and friends.[i] The polemic and hyperbole that has been applied to the synagogue mechitsa  often leaves dissenters with the hard choice of remaining silent and compliant or as being marked as an outsider. The most efficient way to be accepted as an Orthodox Jew in good standing before God is by that person adopting an unquestioning and uncritical submission to the designated, rabbinic elite.   Principled, idiosyncratic commitments are less valued than deferring to the Orthodox elite.

People often allow their personal piety to be worn on their sleeves for observers to notice. The easiest and socially inexpensive way to proclaim one’s ideological orthodoxy is by denouncing those who may not conform to the culture Orthodoxy’s benchmarks.  Thus, lower mechitsot, or partitions segregating women from men in the Orthodox synagogue, may imply lower and possibly inadequate religious standards.  If one is prepared to endorse a less than adequately sized partition segregating the genders in the synagogue prayer setting, one’s “fear of Heaven” may also be suspect.

Authentically religious Jews look into their canonical books and not only to uninformed peers or people mistaken to carry canonical or statutory authority. The Orthodox Judaism that is encoded in the Oral Torah library only canonizes books; other religions often canonize people as well. Orthodoxy’s currently enfranchised elite are said to possess the Holy Spirit,[ii]  which bestows upon them the ability, expertise, and authority to parse the Canonical Oral Torah library, understand its message, and to articulate its normative implications, that God speaks to Jewry in their voice alone. Thus, the Great Rabbi is singularly entitled to read intuitively and knowingly between the Torah’s lines but no one else has the right to read, understand, or apply the Torah Canon’s actual, plain sense meaning.[iii]

There are two major approaches to Law in general and to the Halakhah, Jewish law, in particular. The Legal Formalist, or Legal Positivist, examines the legal systems[iv] the “ought to do” and ought not  to do” legislated rules which are interpreted and applied but are not created by the judge. In contrast, Legal Realism maintains that the Law is made by the judges when rendering real life legal decisions.[v]   While the Old Babylonian Codex Hammurabi records Hammurabi ’s Legal vision, his Letters reveal that his personal behavior did not conform to his own Code’s normative benchmarks. In Old Babylonian culture, Legal Realism reigned.

 A plain sense reading of the Torah seems to present a Positive legal order according to which God’s command, “obey the norms of the Torah contract,” is the Basic Norm of Jewish Law.  The Hebrew idiom for Judaism’s “Basic Norm" is “’ol malchut shamayim, the “yoke of Heaven’s Kingdom,” according to which God the Creator is accepted as Israel’s King and Commander, as well.

Genesis 1:3 reads “And God said/issued an imperative, ’let there be light,’ and there was light.” The canonical Hebrew imperative, vay-hi or, literally “light, be[!],” is immediately followed by “vay-hi or, “light came into being.” While the Semitic root “amr” usually means “say” in Biblical Hebrew, in Arabic, Aramaic, and occasionally even in Biblical Hebrew,[vi] “command” is the preferred rendering. Note that the command’s fulfillment report employs the same diction as the command itself. This semantic device indicates that God the Creator is also God the Commander, and God expects exact compliance with the divine directives. When compliance takes place, God rewards the well-performing person with sanctification,[vii] or holiness,[viii]  but the consequence for non-compliance with God’s command is death.[ix]

Hebrew Scripture’s Law requires precise adherence to the Lawgiver’s actual words, as evidenced by Scripture’s consistent concern for exact compliance with God’s word:

13 “Now all has been heard;
    here is the conclusion of the matter:
Fear [=hold in a state of awe and 

           wonder/take seriously] God and keep 

          His commandments,
    for this is the duty of all mankind.
¹⁴ For God will bring every deed into   

                 judgment, including every hidden thing,
    whether it is good or evil.”[x]

From these Hebrew Scriptural witnesses, we conclude that, for Biblical theology, God the Commander “stands“ at the top of the Torah’s hierarchical order of legal norms. Israel is held to account regarding its adherence to the exact, specific norms that are memorialized in the Torah’s actual words.  Scripture explicitly commands vigilance when anticipating unscrupulous pretenders to legitimate legislative authority who would dare to add to or to detract from Torah Law.[xi] However, Legal Realists’ personal sense of what might be considered to be reasonable to the intellectual elite who may, on occasion cancel the legislated norm if they deem the norm to be unworthy. Legal Realists’ tend to be cultural aristocrats who in antiquity might validate their power by means of miracles—or by exploiting the art of allusion—in order to present themselves in everyday life to be the Creator’s duly ordained deputies, and in modernity as those who are able to establish what " is proper and good" in God’s eyes.[xii] 

According to Positivist Halakhah, the statute/norm is unalterable, unless the given norm is revoked by a Bet Din [=rabbinical court] greater in wisdom and number than the court that issued the initial ruling[xiii]  or provides for its own suspension.[xiv]  Since a plain sense reading of the Written Torah document indicates that God’s words are to be taken face value, we have adopted the Positivist/Formalist position in this study. [xv]  Taking the Commander’s diction as the Divine word, the Halakhic Positivist must pay close attention to the legal text’s lexicon, syntax, and diction when defining the norm encoded in the canonical text. Below we will examine the mechitsah issue from both Legal Realist and Legal Positivist perspectives. In Talmudic literature, the idiom “mechitsah,” or partition wall, is attested in the laws of plantings, in order to avoid mixing diverse seeds, the sukkah wall, and the eruv, the merging or enclosure of courtyards into one single residence, permitting carrying within its perimeter on Shabbat. According to Jewish law, a kosher eruv also requires a walled perimeter that is more enclosed than open, and the eruv arrangement enjoys the consent of every non-Jew and non-observant Jew residing within the eruv’s perimeter.   There is no mention of a synagogue mechitsah requirement in the canonical Babylonian Talmud or related literature,  the medieval Maimonidean Yad, or the early modern  Shulhan ‘Aruch legal compendium.  There is no textual evidence of a positive Torah norm requiring a synagogue mechitzah in the Oral Torah canon.   But we do know that men, women, and children heard the Torah being read in the women’s section of the Temple on Yom Kippur[xvi] and on the Sukkot holiday during the Haqhel ritual.[xvii]

Rabbi Moshe Feinstein and others argue that the “great reform” [Hebrew, tiqqun gadol] made for the intermediate Sukkot festival day ritual of water drawing in the Temple is the “source” for the synagogue partition being viewed as a Biblical prohibition.[xviii] A formal separation of women and men was made in the Temple based on an obscure passage preserved by the Biblical Chronicler.[xix] There are three Formalist difficulties with this rendering. According to the formal principles of Jewish law, Torah law does not derive from any Biblical post-Pentateuch book,[xx] and I-II Chronicles were among the last books of Hebrew Scripture to have been composed, by all accounts.[xxi]  Second, the idiom tiqqun, or “enactment,” is not a divinely authorized, but necessarily human, positive rabbinic law that semantically cannot be a Biblical obligation.[xxii]  This difficulty was also addressed by the ultra-Orthodox R. Yom Tov Schwartz, who answered [me’anneh] the letters,  Iggarot, or responsa, of R. Feinstein.[xxiii]  Third, Jewish Law does not require basins, animal or grain sacrifices, or necessarily raised women sections in contemporary Orthodox synagogues. Oral Law norms alone provide the instances in which the synagogue functions as a miniature Temple. And men were welcome in the Temple’s women’s section on occasion, as noted above.

R. Feinstein was scandalized with mixed gender seating during synagogue based prayer, and he claimed that this gender mixing and contact, even if unintentional, violates a presumed Torah norm  prohibiting levity or qallut rosh.[xxiv] According to the Talmud, one may not engage in qallut rosh in a synagogue, indicating that the entire category is conventional but not covenantal.[xxv] I do not recall that avoiding qallut rosh was ever viewed as a Pentateuchal obligation. Nevertheless, R. Feinstein is unwavering regarding the synagogue mechitsah in spite of the fact that it goes unmentioned in the Oral Torah canon, but he does not object to eating in shteibels, or small chapels of Hassidic prayer.   By defining these small synagogues as batei midrash, dedicated study rooms,  the leniency of allowing eating in a bet midrash is somehow transferred to the small chapel.  While the Talmud does not mention, much less forbid, mixed gender settings per se to be qallut rosh, eating in the synagogue is most assuredly forbidden as an instance of qallut rosh.[xxvi] R. Feinstein’s vehemence has carried the day in Orthodox culture, and the mechitsah has become a defining feature of institutional Orthodoxy.

A close reading of R. Feinstein’s Introduction to Iggarot Moshe reveals the mindset of a Legal Realist, and not of a Legal Positivist. While affirming a perfect Torah law de jure to be a Positive legal order, R. Feinstein observes that a perfect Torah cannot be responsibly applied literally, perfectly, or at face value in an imperfect, human, social reality. R. Feinstein hereby adopts the Legal Realist perspective whereby the judge who is a Great Torah sage is authorized, obliged, and able to fill Orthodoxy’s leadership vacuum,  rule on pressing matters of law, and to determine appropriate policy for the Orthodox community in its  immediate current culture context.  His concern for the dire dangers challenging Orthodoxy suggest that in emergency situations and when called for, the Law itself may be suspended.[xxvii]    Realizing the danger of invoking the Torah’s emergency clause by suspending the Law in a fashion that may appear to be compulsive, cavalier, and capricious, the Positivist Maimonides immediately cautions the legal decisor regarding danger of the slippery slope should this norm be invoked often or irresponsibly.[xxviii]

As a Great Sage to whom dicey questions were so often directed, R. Feinstein not only had to rule correctly, as the religious authority of his community, he was obliged to lead responsibly as well. He could not and did not consider the positive statute alone; he took into account the social contexts, tradeoffs, consequences, and implications of his decisions as they are applied in the real world.  He also had to rule wisely and convincingly,[xxix]which sometimes requires compromise and trade-offs.  After all, he did not have a police force to enforce his rulings. His moral authority was all that he had in his possession, and that he needed to do his job.

Legal Positivists might not be sufficiently sensitive to challenges to   Orthodox social culture, communal expectations or policy, because they focus upon Halakhah’s explicit, recorded norms. Mixed-gender synagogue prayer was the issue that identified R. Feinstein as the outstanding Orthodox Legal Realist of his time.  On one hand, mixed gender synagogue seating profoundly offended the community’s sensibilities, but to date there has been no success at all in identifying  a Canonical, Oral Torah document that reports this assumed, positive legal norm.

R. Avrohom Gordimer, who is both a lawyer and an Orthodox activist,  explains how Orthodoxy’s living culture, or “Tradition,” also known as  “Masorah,” really works.  His  words read like a Legal Realist manifesto:

“Mesorah reflects enduring and traditional practices that are based on solid halachic and/or hashkafic (ideological and attitudinal) considerations, when such considerations are not formally codified or patently evident. In the case of synagogue ornamentation, the synagogue is classified as a Mikdash Me’at, a ‘Miniature Beis Ha-Mikdash’ (Holy Temple), and, as such, must reflect the highest degree of holiness and dignity. Anything that hints at Kalus Rosh (secular levity or amusement) is disallowed. This tradition and sentiment, which is based on halachic and hashkafic concepts yet is not codified specifically in terms of the actual adornment of the synagogue, forms the Mesorah as to the appropriate physical decor of a shul (and precludes introducing superhero or sports themes, as appealing and “Jewish” as they may seem).”[xxx] 

Orthodox Legal Realism elevates and reifies habit, appropriateness, expectations, and mimetic usage into actual law, and significantly, it also affords its own rabbinic elite immunity from review when their decisions differ from the “official religion,” what is taken to be a divinely inspired Oral Torah mandate. According to this approach, rational discussion assumes that the question is in fact subject to rational discourse and public review. But Gordimer’s “Tradition” is a social or taste culture, not the true legal order prescribed by the Written and Oral Torah library.[xxxi] This Judaism maintains that the “customs of Israel are Torah,”[xxxii]  but Torah is “the word of the Lord,”[xxxiii] and social customs are clearly not divine mandates. Since social customs are not the word of the Lord, but are accepted as distinctly human, social constructs, customs  cannot generate the sanctity of a divine order appropriately fulfilled.[xxxiv] Keenly aware not only of the Hartian “rules of obligation,” i.e. the Halakhah ’s prescriptive  norms, the Legal Positivist is also mindful of the “rules of recognition,” the rules that confirm a given norm’s validity. As opposed to Rabbis Feinstein and Gordimer, the Maimonidean Positivist  understands “Tradition” to be the Oral Torah transmission from Moses to R. Ashi, with whom hora’ah, the authority to legislate apodictic legislation, comes to an  end.[xxxv]   According to this school of Orthodox thought, “Tradition” is the publicly vetted Oral Torah legal order transmitted from one generation’s Bet  Din ha-Gadol  to the next.[xxxvi] It is what Israel ought to do according to the Torah covenant; it is not necessarily what Israel happens to do in everyday life. 

Mixed gender synagogue seating violates [a] the traditional, historical practice of Jewry until the 19^th Century, [b] traditional expectations of living continuity, and [c] its implementation often leads to future communal turbulence.  Since family seating presented a mortal threat to Orthodox synagogue expectations, membership, theology, and leadership models, R. Feinstein the community leader formulated his substantive political/theological agenda, the goal of which is the preservation of Yiddishkeit, the living Eastern European, traditional culture guided by Great Rabbis whose Torah learning and principled piety provided  the source of their authority and power.  In Eastern Europe, Yiddish was that Jewish language by which they proclaimed that the local Jewish population was neither Russian nor Polish by ntionality.[xxxvii]   R. Feinstein strained to minimalize the social dislocation caused by the migrations, with Yiddishkeit culture providing the social glue that sustains “traditional” Jewish life. This agenda may be gleaned from his many responsa:

• R. Feinstein strives to preserve Orthodox social culture as it was preserved by Jewry’s ancestors. Compliance with contemporary  rabbinic directives is a much more valued disposition than the creative individualism of independent minds.
• Changes in Jewish culture are usually socially disruptive because they foster assimilation and undermine current religious standards and commitments. The Orthodox Legal  Realist “Tradition of Israel” is the real life culture—as well as Law—of the Haredi  Orthodox elite.
• No change in usage or policy may be implemented without the approval of the Great Sages.
• Orthodox Judaism must resist any, all, and every deviation that threatens the integrity of Orthodoxy’s Halakhah, ethos, and ideological narrative. Pretenders and competitors to Orthodoxy are so religiously illegitimate that it is even forbidden to officially communicate with them.

Mixed gender prayer may choreograph the unorthodox notion that God “must” agree to the radical egalitarianism of the secular, intellectual elite. For the unorthodox rabbinic elite, “God” is usually a concept, but is neither the Creator nor Commander of the cosmos. Given the emergency principle cited above,[xxxviii] R. Feinstein’s Legal Realism might actually be compatible with Legal Formalism because the emergency principle allows rabbinic discretion, and even law suspension, during emergencies.[xxxix] Extreme threats on occasion may require extreme responses. Liberal Jewish ideologies do not, with  few exceptions, affirm a God Who commands, makes distinctions between individuals, and Who holds humankind to account for what it does. Mixed gender “prayer” violates the Yiddishkeit religious ethos and must be regarded and resisted as a counterfeit cult.

Rabbi Joseph B. Soloveitchik argues that the synagogue gender separation is a Biblical requirement and the absence of this separation violates the rule of “thou shalt not see a matter of nakedness.” [xl] He also declares that the mechitsah must be “attributed” to an uncited, unidentified rabbinic enactment.   In order to convincingly stress the “Biblical” nature of the separate seating in the synagogue requirement, R. Soloveitchik appropriately cites a Torah verse to justify his claim.[xli]  But there are two problems with this assertion.   Rabbis functioning after the Talmud came to closure simply do not possess the Halakhic authority, jurisdiction, or standing to derive apodictic laws from Biblical texts.[xlii] Such claims also require the approval of the Supreme Court of Israel, the Bet Din ha-Gadol.   As noted above, the juridic power to create or legislate apodictic rabbinic norms has sadly lapsed in our day.  And the Torah does not provide for oracular legal  promulgation,[xliii] at least for the Legal Positivist. Since the Talmud does not explicitly claim that mixed seating violates Biblical law, the claim that it does is problematic, at best.   A learned colleague suggested that R. Soloveitchik “must” be referring to Maimonides, Laws of Shema 15:3, which disallows praying in the presence of “nakedness,” the external sex organs, or excrement. Jewish law only requires that women cover those body parts that by social  convention are covered.[xliv]   Simply put, a woman may not dress provocatively.   But if women are properly clad, why would mixed synagogue seating be forbidden according to Torah law?  R. Soloveitchik actually allowed mixed gender classes at his Maimonides Day School for Torah study, which like prayer, may not be performed in the immediate presence of either nakedness or excrement. And since classroom furniture is more exposing than synagogue pews, there is greater risk of visual impropriety in the day school  classroom than in the synagogue sanctuary.  The assertion that one may not fulfill the shofar requirement in a mixed seating synagogue setting is anomalous because a ritual slaughterer who slaughters while stark naked has acted improperly,  his act of slaughtering is not disqualified either by the absence of the slaughtering benediction or by his lack of clothes.[xlv] Perhaps R. Soloveitchik attaches the protocols of prayer to the shofar blast. If the shofar is a prayer without words,[xlvi] then the shofar rite should be performed with the same solemnity, and protocol, as prayer.

R. Soloveitchik’s imputation of the mechitsah requirement to a Rabbinic decree is a similarly challenging claim. If a proposed norm is not memorialized by and recorded in the Oral Torah canon for citation, it is simply is not a valid norm.  The claim that a restriction exists by conception or imputation but without citation conflicts with Oral Torah principle that the absence of evidence may not be construed  to be evidence of absence.[xlvii]  On one hand, the synagogue partition “requirement” does not appear  in any extant Talmudic text and it is also unattested in the classical legal compendia. On the other hand,  the Tosafist report[xlviii] that the partition may be erected on the Shabbat for “conventional modesty” is evidence [a] that mechitsot were part medieval Jewry’s religious inventory, [b]  the mechitsah institution is neither Biblical, as argued  by R. Feinstein, nor Rabbinic, as proposed by R. Soloveitchik. While the classical  Rabbinic canon seems to be silent regarding  mandatory gender separation during communal prayer, the [c] historical development of gender separation for formal communal events yields a very proper, appropriate policy the function of which is to preemptively avoid ‘erva,  or sexual improprieties. After all, a practice that is adopted by all of  Torah compliant Jewry does  become binding Jewish law,[xlix] and on this ground the mechitzah is mandatory.

Rabbis Soloveitchik and Feinstein may have thought  that the mechitsah message defines a distinct Orthodox identity in opposition to the egalitarian radicalism of the non-Orthodox streams, which reject the God Who commands and makes distinctions.[l]  Since homosexuality has been accepted to be “normative” for every non-Halakhic stream in Jewish life, the Orthodox  Rabbinic fears were actually prophetic and their emergency-driven Halakhic hyperbole aimed—in retrospect successfully—in protecting their laity’s thick Orthodox culture.

The mechitsah issue has had a life of its own within Orthodoxy. In a taped lecture, R. Isochor Frand, a teacher at Baltimore’s Ner Israel Yeshiva, contrasts R. Feinstein’s relatively “liberal” position to the more rigorously strict Hungarian position. But Frand neither addresses nor cites R. Soloveitchik’s consistent position, that the statutory mechitsah height is 10 handbreadths, or 40,” which is also the required height of the Sukkah and eruv  wall, as well.  In other words, once a wall is required, the  Oral Torah definition of a wall being 40” long of necessity applies. Protective rabbinic extensions of, or fences around, Torah law are designed to prevent the community from sinning,[li]  unwittingly or accidentally. When Nadav and Avihu invented an invalid, unauthorized cultic rite—they raised a “foreign” fire on the Tabernacle altar, which God did not command them to present,  and lost their lives because they dared to intuit how to  approach the Lord’s sacred Presence.[lii] The Torah insists that one may neither add to nor subtract from the Law, even if one does possess oracular powers.[liii]   According to Jewish Law, the 40” partition rises to the sky, following the rabbinic rule of gud asiq. By claiming that the synagogue partition serves to implement the gender segregation that prevents levity and inappropriate license [R. Feinstein], or to avoid visual impropriety [R. Soloveitchik], Great  Rabbis’ instincts, intuitions, and Torah informed internalized sense of propriety have assumed post facto Halakhic validity, and are part of the Legal Realist’s toolbox. 

bQiddushin 81a does report that ad hoc partitions were occasionally erected to prevent intergender immodesties. But the claim that the synagogue gender partition originates  as a duly legislated Oral Torah norm cannot be made on the basis of the currently available textual evidence. R. Chaim Navon echoes our finding:

“What about a mechitza in the synagogue itself? Here the solid, unequivocal and consistent custom in all Jewish communities is that there should be a mechitza in the synagogue during prayer times. Jewish prayer is conducted in the framework of total separation between men and women. No halakhic authority challenges the obligation to have a mechitza. Nevertheless, it is not at all clear that this practice has an unequivocal halakhic foundation.[liv]

In my view, the gender separation for communal Jewish prayer is an evolved, after-the-fact normative obligation. When asked at my pre-employment Baltimore B’nai Israel interview why I insisted on maintaining the mechitsah in the sanctuary, I responded that 

“my personal work product requires gender segregation for shul based prayer. I am unable to do my job, that is serve a Halakhic community, without it. Without the mechitsah in place, I am unable be a believable advocate for Torah because I would have forfeited my own membership in the community of the committed.  I am unable to sell a congregational community to prospective members as a  social and spiritual home that did not segregate the genders, because the mechitsah reminds that segment of Jewry that would consider my work product and mission appropriate, that men and women are different, distinctions individuate every person into a unique carrier of God’s image, and protocols are always in place to remind Jewry that sexual activity is proper only with one’s spouse, in a state ritual purity and sanctity.”

Just because there is no clear canonical source of obligation for the mechitsa does not necessarily mean that the mechitsa should be removed. The synagogue mechitsa reminds Jewry what is unique to the Torah’s religious narrative:

• God created both animal and vegetable life in male and female types. There is both order and meaning in Creation.
• God created the human animal in the Divine image, “male and female [He] created them.”[lv] While the genders are distinct, the Divine image inheres equally in both.
• Scripture commends and commands that the genders relate to each other in sanctity and with restraint. In a secular age in which many assume that there is neither Judge nor judgment, people crave pleasure now and they do not want to wait, where Naturalism proclaims that transcendence is a myth, free will—and personal accountability—an allusion,[lvi] the mechitsa choreographs a robust, contrarian narrative  to modernity’s naturalistic  secularism. The God Who created the cosmos by distinguishing between light and dark, heaven and earth, solid land and liquid seas, is also the same God Who commands humankind to holy. 
• Rashi sees sexual restraint as the instrument by which holiness is generated.[lvii] Maimonides’ Book of Holiness deals with the laws regarding sex and food, that is how Jews ought to respond to their basic human drives. By reminding Jewry that there is a Judge and judgment, there are objects and behaviors that are forbidden by God, and others that are permitted. In my view, a tasteful mechitsa choreographs  these overarching values.

• This summary only represents my view, apologetic, and Jewish construction of reality, as a Legal Positivist.  Most Orthodox rabbis are Legal Realists. R. Feinstein’s mechitsa responsa, when read from a Legal Positivist perspective, are problematic. But in his Introduction to Iggerot Moshe, R. Feinstein concedes that it is impossible to apply the pure Torah law in real life. When popular Orthodox practice conflicts with Oral Torah norms, R. Feinstein will defend popular practice against what appears to be an unambiguous Oral Torah directive. For example, He permits standing for the Ten Commandments[lviii] and clapping and dancing on holy days,[lix] but will not forbid smoking cigarettes because otherwise pious Jews and Great Rabbis smoke.[lx] I am unaware of  a rule of recognition that claims that if everyone does a forbidden act, the act somehow becomes permitted.[lxi] The sacred community and its rabbinic elite are de facto sources of law in Orthodox Legal Realism.  Clarifying R. Soloveitchik’s “two traditions,”[lxii] R. Avrohom Gordimer[lxiii] affirms that in addition to the recorded, Positive Oral law norms, Orthodox Yiddishkeit culture is a second, also unwritten Oral Torah, compliance with which is mandatory and is not subject to review or challenge. This popular culture is R. Soloveitchik’s “second type of Tradition.”[lxiv] His “first type of Tradition” is Maimonides’ Legal Positivism. For Maimonides and the Legal Positivists, this is the only normative Jewish Tradition. “Two tradition Orthodoxy”  affirms that the “customs of Israel are [also] Torah”  understands Torah to be revealed in the life of the sacred community as well as in the sacred library. According to this Orthodoxy, the mechitsa reflects the unwritten Oral Torah according to which  Great Rabbis are able to intuit as they promulgate law as  Legal  Realists, creating law for a living community. Because Maimonides disapproved of adding piyyutim [liturgical poetry] to the prescribed, formal prayers,[lxv] R. Soloveitchik does not regard Maimonides to be a Halakhic man,[lxvi] precisely because Maimonides does not accept this second type of Tradition to be normative.

1. Halakhic Legal Positivism observes 
   
   1. that lacking an  explicit norm in the Oral Torah that establishes the synagogue mechitsa is a requirement, with some evidence that the original modesty mechitsa was an ad hoc response to situational intergender impropriety, it must nevertheless be maintained because it was a practice accepted by all Israel.
   2. Modern Orthodox circles prefer the “letter of the law” Legal Positivist position because this point of view focuses upon legislated norms but not the habits, folkways, and conventions.  As long as the Law is fulfilled, non-Jewish cultures,  ideas, and interests may be may explored, and if found to be compatible with Torah, they may even be adopted.[lxvii]  Modern Orthodoxy maintains that    whatever is not forbidden by formal Jewish law is permitted, carving out a social space for legitimate Orthodox autonomy.
   3. For this version of Orthodoxy, Torah is an accessible, readable, object/heftsa documentary trove which contains norms that command, forbid, and when silent permit and authorize autonomous behavior, nurturing, fostering, and cultivating a citizen who is able to assess the communal elite fairly, generously, and honestly.

1. Halakhic Legal Realism transfers the power of norm creation from the object/heftsa of the canonical text to the person/gavra of the rabbinical judge.
   
   1. Jewish Legal Realism from the time of the Tosafists  has proclaimed that the “customs of Israel [are considered to be] Torah” which, like Oral Torah legislation, must be accepted as if they too were  the “word of the Lord.” 
   2. Jewish Legal Realists are less bound by the canonized statute than they are by their own intuitive sense of  Halakhic and social propriety. Conflicts between the canonized Oral Torah norm and the accepted community practice are often resolved by deferring to the community’s present  sense of propriety. 
   3. Religious Legal Realists’ rulings are not usually subject to review, because [a] their spokespeople often speak in a prophetic or divine voice,[lxviii] [b] with dissent derided as improper. [lxix] Jewish Law assumes that Halakhic mistakes are not heresies but errors,[lxx] because people are supposed to be judged generously, with the benefit of doubt.[lxxi] Great Rabbis rarely invoke legal theory, because their authority derives more from Max Weber’s traditional and charismatic leadership models than from reason. Appeals to reason  may be assessed and challenged,[lxxii] which is not the case for traditional and charismatic leadership. While Raabad follows the opinion of the individual he deems to be the greater rabbi, Maimonides, anticipating Weber, accepts the most compelling, rational claim, based on the facts and the logic of the case.[lxxiii] When first dealing with the mechitsa issue over 40 years ago,[lxxiv]  and reading the data as a Legal Positivist, I discovered that non-Orthodox thinkers are informed but not obliged by the Oral Torah Law. I also realized that institutional Orthodoxy is not as Halakhically consistent as one would expect. Torah cannot be both minhag Yisrael, what Jews happen to do, and “the word of the Lord,” or what Jews  ought to do. A Legal Realist who is guided by intuition, who believes that Israel received a virtually inerrant mimetic culture that is the contemporary expression of God’s will, would regard the synagogue mechitsa to be an embodiment of a Torah ethos. But a Legal Positivist defines Torah inductively by exposing the Torah polity’s ethos that is created by the Halakhic norms.

If one adopts Legal Realism, the Law is always able to be responsive, because proceeds from the judge rather than from the legislature it; and if one adopts Legal Positivism, one is able to guide one’s actions based on public information and expectations.  The Positivist judge is an umpire, applying but not daring to create law.   Orthodox Legal  Realists have no patience the Positivist’s relentless focus on the statute, norm, and rule. They have determined that Orthodoxy requires the synagogue mechitsa  and they assign an appropriate valence to that requirement.  The Positivist might argue that while there is no clear  norm requiring the synagogue mechitzah and there  is even some reasonable evidence, cited above,  that there never was such a rule requiring the mechitsa. Culture aristocrat that he/she is, the Legal Realist will not allow the naked letter of the law to subvert the practice that elite presumes to be right and good.   Note well that in most political arenas, the Positivist is the reactionary/conservative and the Realist is the radical/liberal. This is not the case for contemporary  Orthodoxy.  Orthodox modernists are bound by the Positive Jewish law, but not by nostalgia, habits, or folkways. The Oral Law does not forbid all assimilation; it only forbids what it explicitly forbids by formal norm. And since neither Maimonides nor the Talmud speak of a second, undocumented “tradition” that conflates what Orthodox Jewry happens to do with what it is obliged by its Torah Law to do, Orthodox Legal Positivists will not necissarilly be bound by this undocumented, and unvetted, “tradition.”

The canonical Tradition rules that for a Milhemet mitsvah, a war fought for  the security of the Jewish land, people, or state, everyone, even the bride and groom, are conscripted.[lxxv] The Hazon Ish disagreed   vehemently with this Oral Torah norm,[lxxvi] objecting to women’s military service on moral, or cultural grounds.  But he does not offer a legal argument.   Instead, he appeals to the immortality of coercion and the sexual license associated with military life.[lxxvii] Acutely aware of the tension between Orthodox Jewish law and current Orthodox cultural sensibilities and norms,   R. Alfred  Cohen observes:

“At all times, authentic Jewish leadership is not constricted by the niceties of academic precedent but acts from a broader and deeper appreciation of halachic norms, which may take precedence over considerations. We also have to realize that rabbis employ a variety of methods in arriving at a Halachic conclusion, so that at times there is a certain anomaly in their conclusions.”[lxxviii]

The  synagogue mechitsah, the partition separating women from men in the Orthodox shul, has evolved over time to become the defining distinction between what is accepted to be authentic Orthodox Judaism that the Torah law prescribes and non-compliant, non-Orthodox communities. As with any culture, a person’s actual opinions are inevitably conditioned by one’s teachers and peers, rabbis and rebbes, congregations and communities, and peers and friends.[i] The polemic and hyperbole that has been applied to the synagogue mechitsa  often leaves dissenters with the hard choice of remaining silent and compliant or as being marked as an outsider. The most efficient way to be accepted as an Orthodox Jew in good standing before God is by that person adopting an unquestioning and uncritical submission to the designated, rabbinic elite.   Principled, idiosyncratic commitments are less valued than deferring to the Orthodox elite.

People often allow their personal piety to be worn on their sleeves for observers to notice. The easiest and socially inexpensive way to proclaim one’s ideological orthodoxy is by denouncing those who may not conform to the culture Orthodoxy’s benchmarks.  Thus, lower mechitsot, or partitions segregating women from men in the Orthodox synagogue, may imply lower and possibly inadequate religious standards.  If one is prepared to endorse a less than adequately sized partition segregating the genders in the synagogue prayer setting, one’s “fear of Heaven” may also be suspect.

Authentically religious Jews look into their canonical books and not only to uninformed peers or people mistaken to carry canonical or statutory authority. The Orthodox Judaism that is encoded in the Oral Torah library only canonizes books; other religions often canonize people as well. Orthodoxy’s currently enfranchised elite are said to possess the Holy Spirit,[ii]  which bestows upon them the ability, expertise, and authority to parse the Canonical Oral Torah library, understand its message, and to articulate its normative implications, that God speaks to Jewry in their voice alone. Thus, the Great Rabbi is singularly entitled to read intuitively and knowingly between the Torah’s lines but no one else has the right to read, understand, or apply the Torah Canon’s actual, plain sense meaning.[iii]

There are two major approaches to Law in general and to the Halakhah, Jewish law, in particular. The Legal Formalist, or Legal Positivist, examines the legal systems[iv] the “ought to do” and ought not  to do” legislated rules which are interpreted and applied but are not created by the judge. In contrast, Legal Realism maintains that the Law is made by the judges when rendering real life legal decisions.[v]   While the Old Babylonian Codex Hammurabi records Hammurabi ’s Legal vision, his Letters reveal that his personal behavior did not conform to his own Code’s normative benchmarks. In Old Babylonian culture, Legal Realism reigned.

 A plain sense reading of the Torah seems to present a Positive legal order according to which God’s command, “obey the norms of the Torah contract,” is the Basic Norm of Jewish Law.  The Hebrew idiom for Judaism’s “Basic Norm" is “’ol malchut shamayim, the “yoke of Heaven’s Kingdom,” according to which God the Creator is accepted as Israel’s King and Commander, as well.

Genesis 1:3 reads “And God said/issued an imperative, ’let there be light,’ and there was light.” The canonical Hebrew imperative, vay-hi or, literally “light, be[!],” is immediately followed by “vay-hi or, “light came into being.” While the Semitic root “amr” usually means “say” in Biblical Hebrew, in Arabic, Aramaic, and occasionally even in Biblical Hebrew,[vi] “command” is the preferred rendering. Note that the command’s fulfillment report employs the same diction as the command itself. This semantic device indicates that God the Creator is also God the Commander, and God expects exact compliance with the divine directives. When compliance takes place, God rewards the well-performing person with sanctification,[vii] or holiness,[viii]  but the consequence for non-compliance with God’s command is death.[ix]

Hebrew Scripture’s Law requires precise adherence to the Lawgiver’s actual words, as evidenced by Scripture’s consistent concern for exact compliance with God’s word:

13 “Now all has been heard;
    here is the conclusion of the matter:
Fear [=hold in a state of awe and 

           wonder/take seriously] God and keep 

          His commandments,
    for this is the duty of all mankind.
¹⁴ For God will bring every deed into   

                 judgment, including every hidden thing,
    whether it is good or evil.”[x]

From these Hebrew Scriptural witnesses, we conclude that, for Biblical theology, God the Commander “stands“ at the top of the Torah’s hierarchical order of legal norms. Israel is held to account regarding its adherence to the exact, specific norms that are memorialized in the Torah’s actual words.  Scripture explicitly commands vigilance when anticipating unscrupulous pretenders to legitimate legislative authority who would dare to add to or to detract from Torah Law.[xi] However, Legal Realists’ personal sense of what might be considered to be reasonable to the intellectual elite who may, on occasion cancel the legislated norm if they deem the norm to be unworthy. Legal Realists’ tend to be cultural aristocrats who in antiquity might validate their power by means of miracles—or by exploiting the art of allusion—in order to present themselves in everyday life to be the Creator’s duly ordained deputies, and in modernity as those who are able to establish what " is proper and good" in God’s eyes.[xii] 

According to Positivist Halakhah, the statute/norm is unalterable, unless the given norm is revoked by a Bet Din [=rabbinical court] greater in wisdom and number than the court that issued the initial ruling[xiii]  or provides for its own suspension.[xiv]  Since a plain sense reading of the Written Torah document indicates that God’s words are to be taken face value, we have adopted the Positivist/Formalist position in this study. [xv]  Taking the Commander’s diction as the Divine word, the Halakhic Positivist must pay close attention to the legal text’s lexicon, syntax, and diction when defining the norm encoded in the canonical text. Below we will examine the mechitsah issue from both Legal Realist and Legal Positivist perspectives. In Talmudic literature, the idiom “mechitsah,” or partition wall, is attested in the laws of plantings, in order to avoid mixing diverse seeds, the sukkah wall, and the eruv, the merging or enclosure of courtyards into one single residence, permitting carrying within its perimeter on Shabbat. According to Jewish law, a kosher eruv also requires a walled perimeter that is more enclosed than open, and the eruv arrangement enjoys the consent of every non-Jew and non-observant Jew residing within the eruv’s perimeter.   There is no mention of a synagogue mechitsah requirement in the canonical Babylonian Talmud or related literature,  the medieval Maimonidean Yad, or the early modern  Shulhan ‘Aruch legal compendium.  There is no textual evidence of a positive Torah norm requiring a synagogue mechitzah in the Oral Torah canon.   But we do know that men, women, and children heard the Torah being read in the women’s section of the Temple on Yom Kippur[xvi] and on the Sukkot holiday during the Haqhel ritual.[xvii]

Rabbi Moshe Feinstein and others argue that the “great reform” [Hebrew, tiqqun gadol] made for the intermediate Sukkot festival day ritual of water drawing in the Temple is the “source” for the synagogue partition being viewed as a Biblical prohibition.[xviii] A formal separation of women and men was made in the Temple based on an obscure passage preserved by the Biblical Chronicler.[xix] There are three Formalist difficulties with this rendering. According to the formal principles of Jewish law, Torah law does not derive from any Biblical post-Pentateuch book,[xx] and I-II Chronicles were among the last books of Hebrew Scripture to have been composed, by all accounts.[xxi]  Second, the idiom tiqqun, or “enactment,” is not a divinely authorized, but necessarily human, positive rabbinic law that semantically cannot be a Biblical obligation.[xxii]  This difficulty was also addressed by the ultra-Orthodox R. Yom Tov Schwartz, who answered [me’anneh] the letters,  Iggarot, or responsa, of R. Feinstein.[xxiii]  Third, Jewish Law does not require basins, animal or grain sacrifices, or necessarily raised women sections in contemporary Orthodox synagogues. Oral Law norms alone provide the instances in which the synagogue functions as a miniature Temple. And men were welcome in the Temple’s women’s section on occasion, as noted above.

R. Feinstein was scandalized with mixed gender seating during synagogue based prayer, and he claimed that this gender mixing and contact, even if unintentional, violates a presumed Torah norm  prohibiting levity or qallut rosh.[xxiv] According to the Talmud, one may not engage in qallut rosh in a synagogue, indicating that the entire category is conventional but not covenantal.[xxv] I do not recall that avoiding qallut rosh was ever viewed as a Pentateuchal obligation. Nevertheless, R. Feinstein is unwavering regarding the synagogue mechitsah in spite of the fact that it goes unmentioned in the Oral Torah canon, but he does not object to eating in shteibels, or small chapels of Hassidic prayer.   By defining these small synagogues as batei midrash, dedicated study rooms,  the leniency of allowing eating in a bet midrash is somehow transferred to the small chapel.  While the Talmud does not mention, much less forbid, mixed gender settings per se to be qallut rosh, eating in the synagogue is most assuredly forbidden as an instance of qallut rosh.[xxvi] R. Feinstein’s vehemence has carried the day in Orthodox culture, and the mechitsah has become a defining feature of institutional Orthodoxy.

A close reading of R. Feinstein’s Introduction to Iggarot Moshe reveals the mindset of a Legal Realist, and not of a Legal Positivist. While affirming a perfect Torah law de jure to be a Positive legal order, R. Feinstein observes that a perfect Torah cannot be responsibly applied literally, perfectly, or at face value in an imperfect, human, social reality. R. Feinstein hereby adopts the Legal Realist perspective whereby the judge who is a Great Torah sage is authorized, obliged, and able to fill Orthodoxy’s leadership vacuum,  rule on pressing matters of law, and to determine appropriate policy for the Orthodox community in its  immediate current culture context.  His concern for the dire dangers challenging Orthodoxy suggest that in emergency situations and when called for, the Law itself may be suspended.[xxvii]    Realizing the danger of invoking the Torah’s emergency clause by suspending the Law in a fashion that may appear to be compulsive, cavalier, and capricious, the Positivist Maimonides immediately cautions the legal decisor regarding danger of the slippery slope should this norm be invoked often or irresponsibly.[xxviii]

As a Great Sage to whom dicey questions were so often directed, R. Feinstein not only had to rule correctly, as the religious authority of his community, he was obliged to lead responsibly as well. He could not and did not consider the positive statute alone; he took into account the social contexts, tradeoffs, consequences, and implications of his decisions as they are applied in the real world.  He also had to rule wisely and convincingly,[xxix]which sometimes requires compromise and trade-offs.  After all, he did not have a police force to enforce his rulings. His moral authority was all that he had in his possession, and that he needed to do his job.

Legal Positivists might not be sufficiently sensitive to challenges to   Orthodox social culture, communal expectations or policy, because they focus upon Halakhah’s explicit, recorded norms. Mixed-gender synagogue prayer was the issue that identified R. Feinstein as the outstanding Orthodox Legal Realist of his time.  On one hand, mixed gender synagogue seating profoundly offended the community’s sensibilities, but to date there has been no success at all in identifying  a Canonical, Oral Torah document that reports this assumed, positive legal norm.

R. Avrohom Gordimer, who is both a lawyer and an Orthodox activist,  explains how Orthodoxy’s living culture, or “Tradition,” also known as  “Masorah,” really works.  His  words read like a Legal Realist manifesto:

“Mesorah reflects enduring and traditional practices that are based on solid halachic and/or hashkafic (ideological and attitudinal) considerations, when such considerations are not formally codified or patently evident. In the case of synagogue ornamentation, the synagogue is classified as a Mikdash Me’at, a ‘Miniature Beis Ha-Mikdash’ (Holy Temple), and, as such, must reflect the highest degree of holiness and dignity. Anything that hints at Kalus Rosh (secular levity or amusement) is disallowed. This tradition and sentiment, which is based on halachic and hashkafic concepts yet is not codified specifically in terms of the actual adornment of the synagogue, forms the Mesorah as to the appropriate physical decor of a shul (and precludes introducing superhero or sports themes, as appealing and “Jewish” as they may seem).”[xxx] 

Orthodox Legal Realism elevates and reifies habit, appropriateness, expectations, and mimetic usage into actual law, and significantly, it also affords its own rabbinic elite immunity from review when their decisions differ from the “official religion,” what is taken to be a divinely inspired Oral Torah mandate. According to this approach, rational discussion assumes that the question is in fact subject to rational discourse and public review. But Gordimer’s “Tradition” is a social or taste culture, not the true legal order prescribed by the Written and Oral Torah library.[xxxi] This Judaism maintains that the “customs of Israel are Torah,”[xxxii]  but Torah is “the word of the Lord,”[xxxiii] and social customs are clearly not divine mandates. Since social customs are not the word of the Lord, but are accepted as distinctly human, social constructs, customs  cannot generate the sanctity of a divine order appropriately fulfilled.[xxxiv] Keenly aware not only of the Hartian “rules of obligation,” i.e. the Halakhah ’s prescriptive  norms, the Legal Positivist is also mindful of the “rules of recognition,” the rules that confirm a given norm’s validity. As opposed to Rabbis Feinstein and Gordimer, the Maimonidean Positivist  understands “Tradition” to be the Oral Torah transmission from Moses to R. Ashi, with whom hora’ah, the authority to legislate apodictic legislation, comes to an  end.[xxxv]   According to this school of Orthodox thought, “Tradition” is the publicly vetted Oral Torah legal order transmitted from one generation’s Bet  Din ha-Gadol  to the next.[xxxvi] It is what Israel ought to do according to the Torah covenant; it is not necessarily what Israel happens to do in everyday life. 

Mixed gender synagogue seating violates [a] the traditional, historical practice of Jewry until the 19^th Century, [b] traditional expectations of living continuity, and [c] its implementation often leads to future communal turbulence.  Since family seating presented a mortal threat to Orthodox synagogue expectations, membership, theology, and leadership models, R. Feinstein the community leader formulated his substantive political/theological agenda, the goal of which is the preservation of Yiddishkeit, the living Eastern European, traditional culture guided by Great Rabbis whose Torah learning and principled piety provided  the source of their authority and power.  In Eastern Europe, Yiddish was that Jewish language by which they proclaimed that the local Jewish population was neither Russian nor Polish by ntionality.[xxxvii]   R. Feinstein strained to minimalize the social dislocation caused by the migrations, with Yiddishkeit culture providing the social glue that sustains “traditional” Jewish life. This agenda may be gleaned from his many responsa:

• R. Feinstein strives to preserve Orthodox social culture as it was preserved by Jewry’s ancestors. Compliance with contemporary  rabbinic directives is a much more valued disposition than the creative individualism of independent minds.

   

• Changes in Jewish culture are usually socially disruptive because they foster assimilation and undermine current religious standards and commitments. The Orthodox Legal  Realist “Tradition of Israel” is the real life culture—as well as Law—of the Haredi  Orthodox elite.

   

• No change in usage or policy may be implemented without the approval of the Great Sages.

   

• Orthodox Judaism must resist any, all, and every deviation that threatens the integrity of Orthodoxy’s Halakhah, ethos, and ideological narrative. Pretenders and competitors to Orthodoxy are so religiously illegitimate that it is even forbidden to officially communicate with them.

   

Mixed gender prayer may choreograph the unorthodox notion that God “must” agree to the radical egalitarianism of the secular, intellectual elite. For the unorthodox rabbinic elite, “God” is usually a concept, but is neither the Creator nor Commander of the cosmos. Given the emergency principle cited above,[xxxviii] R. Feinstein’s Legal Realism might actually be compatible with Legal Formalism because the emergency principle allows rabbinic discretion, and even law suspension, during emergencies.[xxxix] Extreme threats on occasion may require extreme responses. Liberal Jewish ideologies do not, with  few exceptions, affirm a God Who commands, makes distinctions between individuals, and Who holds humankind to account for what it does. Mixed gender “prayer” violates the Yiddishkeit religious ethos and must be regarded and resisted as a counterfeit cult.

Rabbi Joseph B. Soloveitchik argues that the synagogue gender separation is a Biblical requirement and the absence of this separation violates the rule of “thou shalt not see a matter of nakedness.” [xl] He also declares that the mechitsah must be “attributed” to an uncited, unidentified rabbinic enactment.   In order to convincingly stress the “Biblical” nature of the separate seating in the synagogue requirement, R. Soloveitchik appropriately cites a Torah verse to justify his claim.[xli]  But there are two problems with this assertion.   Rabbis functioning after the Talmud came to closure simply do not possess the Halakhic authority, jurisdiction, or standing to derive apodictic laws from Biblical texts.[xlii] Such claims also require the approval of the Supreme Court of Israel, the Bet Din ha-Gadol.   As noted above, the juridic power to create or legislate apodictic rabbinic norms has sadly lapsed in our day.  And the Torah does not provide for oracular legal  promulgation,[xliii] at least for the Legal Positivist. Since the Talmud does not explicitly claim that mixed seating violates Biblical law, the claim that it does is problematic, at best.   A learned colleague suggested that R. Soloveitchik “must” be referring to Maimonides, Laws of Shema 15:3, which disallows praying in the presence of “nakedness,” the external sex organs, or excrement. Jewish law only requires that women cover those body parts that by social  convention are covered.[xliv]   Simply put, a woman may not dress provocatively.   But if women are properly clad, why would mixed synagogue seating be forbidden according to Torah law?  R. Soloveitchik actually allowed mixed gender classes at his Maimonides Day School for Torah study, which like prayer, may not be performed in the immediate presence of either nakedness or excrement. And since classroom furniture is more exposing than synagogue pews, there is greater risk of visual impropriety in the day school  classroom than in the synagogue sanctuary.  The assertion that one may not fulfill the shofar requirement in a mixed seating synagogue setting is anomalous because a ritual slaughterer who slaughters while stark naked has acted improperly,  his act of slaughtering is not disqualified either by the absence of the slaughtering benediction or by his lack of clothes.[xlv] Perhaps R. Soloveitchik attaches the protocols of prayer to the shofar blast. If the shofar is a prayer without words,[xlvi] then the shofar rite should be performed with the same solemnity, and protocol, as prayer.

R. Soloveitchik’s imputation of the mechitsah requirement to a Rabbinic decree is a similarly challenging claim. If a proposed norm is not memorialized by and recorded in the Oral Torah canon for citation, it is simply is not a valid norm.  The claim that a restriction exists by conception or imputation but without citation conflicts with Oral Torah principle that the absence of evidence may not be construed  to be evidence of absence.[xlvii]  On one hand, the synagogue partition “requirement” does not appear  in any extant Talmudic text and it is also unattested in the classical legal compendia. On the other hand,  the Tosafist report[xlviii] that the partition may be erected on the Shabbat for “conventional modesty” is evidence [a] that mechitsot were part medieval Jewry’s religious inventory, [b]  the mechitsah institution is neither Biblical, as argued  by R. Feinstein, nor Rabbinic, as proposed by R. Soloveitchik. While the classical  Rabbinic canon seems to be silent regarding  mandatory gender separation during communal prayer, the [c] historical development of gender separation for formal communal events yields a very proper, appropriate policy the function of which is to preemptively avoid ‘erva,  or sexual improprieties. After all, a practice that is adopted by all of  Torah compliant Jewry does  become binding Jewish law,[xlix] and on this ground the mechitzah is mandatory.

Rabbis Soloveitchik and Feinstein may have thought  that the mechitsah message defines a distinct Orthodox identity in opposition to the egalitarian radicalism of the non-Orthodox streams, which reject the God Who commands and makes distinctions.[l]  Since homosexuality has been accepted to be “normative” for every non-Halakhic stream in Jewish life, the Orthodox  Rabbinic fears were actually prophetic and their emergency-driven Halakhic hyperbole aimed—in retrospect successfully—in protecting their laity’s thick Orthodox culture.

The mechitsah issue has had a life of its own within Orthodoxy. In a taped lecture, R. Isochor Frand, a teacher at Baltimore’s Ner Israel Yeshiva, contrasts R. Feinstein’s relatively “liberal” position to the more rigorously strict Hungarian position. But Frand neither addresses nor cites R. Soloveitchik’s consistent position, that the statutory mechitsah height is 10 handbreadths, or 40,” which is also the required height of the Sukkah and eruv  wall, as well.  In other words, once a wall is required, the  Oral Torah definition of a wall being 40” long of necessity applies. Protective rabbinic extensions of, or fences around, Torah law are designed to prevent the community from sinning,[li]  unwittingly or accidentally. When Nadav and Avihu invented an invalid, unauthorized cultic rite—they raised a “foreign” fire on the Tabernacle altar, which God did not command them to present,  and lost their lives because they dared to intuit how to  approach the Lord’s sacred Presence.[lii] The Torah insists that one may neither add to nor subtract from the Law, even if one does possess oracular powers.[liii]   According to Jewish Law, the 40” partition rises to the sky, following the rabbinic rule of gud asiq. By claiming that the synagogue partition serves to implement the gender segregation that prevents levity and inappropriate license [R. Feinstein], or to avoid visual impropriety [R. Soloveitchik], Great  Rabbis’ instincts, intuitions, and Torah informed internalized sense of propriety have assumed post facto Halakhic validity, and are part of the Legal Realist’s toolbox. 

bQiddushin 81a does report that ad hoc partitions were occasionally erected to prevent intergender immodesties. But the claim that the synagogue gender partition originates  as a duly legislated Oral Torah norm cannot be made on the basis of the currently available textual evidence. R. Chaim Navon echoes our finding:

“What about a mechitza in the synagogue itself? Here the solid, unequivocal and consistent custom in all Jewish communities is that there should be a mechitza in the synagogue during prayer times. Jewish prayer is conducted in the framework of total separation between men and women. No halakhic authority challenges the obligation to have a mechitza. Nevertheless, it is not at all clear that this practice has an unequivocal halakhic foundation.[liv]

In my view, the gender separation for communal Jewish prayer is an evolved, after-the-fact normative obligation. When asked at my pre-employment Baltimore B’nai Israel interview why I insisted on maintaining the mechitsah in the sanctuary, I responded that 

“my personal work product requires gender segregation for shul based prayer. I am unable to do my job, that is serve a Halakhic community, without it. Without the mechitsah in place, I am unable be a believable advocate for Torah because I would have forfeited my own membership in the community of the committed.  I am unable to sell a congregational community to prospective members as a  social and spiritual home that did not segregate the genders, because the mechitsah reminds that segment of Jewry that would consider my work product and mission appropriate, that men and women are different, distinctions individuate every person into a unique carrier of God’s image, and protocols are always in place to remind Jewry that sexual activity is proper only with one’s spouse, in a state ritual purity and sanctity.”

Just because there is no clear canonical source of obligation for the mechitsa does not necessarily mean that the mechitsa should be removed. The synagogue mechitsa reminds Jewry what is unique to the Torah’s religious narrative:

• God created both animal and vegetable life in male and female types. There is both order and meaning in Creation.

   

• God created the human animal in the Divine image, “male and female [He] created them.”[lv] While the genders are distinct, the Divine image inheres equally in both.

   

• Scripture commends and commands that the genders relate to each other in sanctity and with restraint. In a secular age in which many assume that there is neither Judge nor judgment, people crave pleasure now and they do not want to wait, where Naturalism proclaims that transcendence is a myth, free will—and personal accountability—an allusion,[lvi] the mechitsa choreographs a robust, contrarian narrative  to modernity’s naturalistic  secularism. The God Who created the cosmos by distinguishing between light and dark, heaven and earth, solid land and liquid seas, is also the same God Who commands humankind to holy. 

   

• Rashi sees sexual restraint as the instrument by which holiness is generated.[lvii] Maimonides’ Book of Holiness deals with the laws regarding sex and food, that is how Jews ought to respond to their basic human drives. By reminding Jewry that there is a Judge and judgment, there are objects and behaviors that are forbidden by God, and others that are permitted. In my view, a tasteful mechitsa choreographs  these overarching values.

   

• This summary only represents my view, apologetic, and Jewish construction of reality, as a Legal Positivist.  Most Orthodox rabbis are Legal Realists. R. Feinstein’s mechitsa responsa, when read from a Legal Positivist perspective, are problematic. But in his Introduction to Iggerot Moshe, R. Feinstein concedes that it is impossible to apply the pure Torah law in real life. When popular Orthodox practice conflicts with Oral Torah norms, R. Feinstein will defend popular practice against what appears to be an unambiguous Oral Torah directive. For example, He permits standing for the Ten Commandments[lviii] and clapping and dancing on holy days,[lix] but will not forbid smoking cigarettes because otherwise pious Jews and Great Rabbis smoke.[lx] I am unaware of  a rule of recognition that claims that if everyone does a forbidden act, the act somehow becomes permitted.[lxi] The sacred community and its rabbinic elite are de facto sources of law in Orthodox Legal Realism.  Clarifying R. Soloveitchik’s “two traditions,”[lxii] R. Avrohom Gordimer[lxiii] affirms that in addition to the recorded, Positive Oral law norms, Orthodox Yiddishkeit culture is a second, also unwritten Oral Torah, compliance with which is mandatory and is not subject to review or challenge. This popular culture is R. Soloveitchik’s “second type of Tradition.”[lxiv] His “first type of Tradition” is Maimonides’ Legal Positivism. For Maimonides and the Legal Positivists, this is the only normative Jewish Tradition. “Two tradition Orthodoxy”  affirms that the “customs of Israel are [also] Torah”  understands Torah to be revealed in the life of the sacred community as well as in the sacred library. According to this Orthodoxy, the mechitsa reflects the unwritten Oral Torah according to which  Great Rabbis are able to intuit as they promulgate law as  Legal  Realists, creating law for a living community. Because Maimonides disapproved of adding piyyutim [liturgical poetry] to the prescribed, formal prayers,[lxv] R. Soloveitchik does not regard Maimonides to be a Halakhic man,[lxvi] precisely because Maimonides does not accept this second type of Tradition to be normative.

   

1. Halakhic Legal Positivism observes 

    

   
    

   1. that lacking an  explicit norm in the Oral Torah that establishes the synagogue mechitsa is a requirement, with some evidence that the original modesty mechitsa was an ad hoc response to situational intergender impropriety, it must nevertheless be maintained because it was a practice accepted by all Israel.

       

   2. Modern Orthodox circles prefer the “letter of the law” Legal Positivist position because this point of view focuses upon legislated norms but not the habits, folkways, and conventions.  As long as the Law is fulfilled, non-Jewish cultures,  ideas, and interests may be may explored, and if found to be compatible with Torah, they may even be adopted.[lxvii]  Modern Orthodoxy maintains that    whatever is not forbidden by formal Jewish law is permitted, carving out a social space for legitimate Orthodox autonomy.

       

   3. For this version of Orthodoxy, Torah is an accessible, readable, object/heftsa documentary trove which contains norms that command, forbid, and when silent permit and authorize autonomous behavior, nurturing, fostering, and cultivating a citizen who is able to assess the communal elite fairly, generously, and honestly.

       

1. Halakhic Legal Realism transfers the power of norm creation from the object/heftsa of the canonical text to the person/gavra of the rabbinical judge.

    

   
    

   1. Jewish Legal Realism from the time of the Tosafists  has proclaimed that the “customs of Israel [are considered to be] Torah” which, like Oral Torah legislation, must be accepted as if they too were  the “word of the Lord.” 

       

   2. Jewish Legal Realists are less bound by the canonized statute than they are by their own intuitive sense of  Halakhic and social propriety. Conflicts between the canonized Oral Torah norm and the accepted community practice are often resolved by deferring to the community’s present  sense of propriety. 

       

   3. Religious Legal Realists’ rulings are not usually subject to review, because [a] their spokespeople often speak in a prophetic or divine voice,[lxviii] [b] with dissent derided as improper. [lxix] Jewish Law assumes that Halakhic mistakes are not heresies but errors,[lxx] because people are supposed to be judged generously, with the benefit of doubt.[lxxi] Great Rabbis rarely invoke legal theory, because their authority derives more from Max Weber’s traditional and charismatic leadership models than from reason. Appeals to reason  may be assessed and challenged,[lxxii] which is not the case for traditional and charismatic leadership. While Raabad follows the opinion of the individual he deems to be the greater rabbi, Maimonides, anticipating Weber, accepts the most compelling, rational claim, based on the facts and the logic of the case.[lxxiii] When first dealing with the mechitsa issue over 40 years ago,[lxxiv]  and reading the data as a Legal Positivist, I discovered that non-Orthodox thinkers are informed but not obliged by the Oral Torah Law. I also realized that institutional Orthodoxy is not as Halakhically consistent as one would expect. Torah cannot be both minhag Yisrael, what Jews happen to do, and “the word of the Lord,” or what Jews  ought to do. A Legal Realist who is guided by intuition, who believes that Israel received a virtually inerrant mimetic culture that is the contemporary expression of God’s will, would regard the synagogue mechitsa to be an embodiment of a Torah ethos. But a Legal Positivist defines Torah inductively by exposing the Torah polity’s ethos that is created by the Halakhic norms.

       

If one adopts Legal Realism, the Law is always able to be responsive, because proceeds from the judge rather than from the legislature it; and if one adopts Legal Positivism, one is able to guide one’s actions based on public information and expectations.  The Positivist judge is an umpire, applying but not daring to create law.   Orthodox Legal  Realists have no patience the Positivist’s relentless focus on the statute, norm, and rule. They have determined that Orthodoxy requires the synagogue mechitsa  and they assign an appropriate valence to that requirement.  The Positivist might argue that while there is no clear  norm requiring the synagogue mechitzah and there  is even some reasonable evidence, cited above,  that there never was such a rule requiring the mechitsa. Culture aristocrat that he/she is, the Legal Realist will not allow the naked letter of the law to subvert the practice that elite presumes to be right and good.   Note well that in most political arenas, the Positivist is the reactionary/conservative and the Realist is the radical/liberal. This is not the case for contemporary  Orthodoxy.  Orthodox modernists are bound by the Positive Jewish law, but not by nostalgia, habits, or folkways. The Oral Law does not forbid all assimilation; it only forbids what it explicitly forbids by formal norm. And since neither Maimonides nor the Talmud speak of a second, undocumented “tradition” that conflates what Orthodox Jewry happens to do with what it is obliged by its Torah Law to do, Orthodox Legal Positivists will not necissarilly be bound by this undocumented, and unvetted, “tradition.”

The canonical Tradition rules that for a Milhemet mitsvah, a war fought for  the security of the Jewish land, people, or state, everyone, even the bride and groom, are conscripted.[lxxv] The Hazon Ish disagreed   vehemently with this Oral Torah norm,[lxxvi] objecting to women’s military service on moral, or cultural grounds.  But he does not offer a legal argument.   Instead, he appeals to the immortality of coercion and the sexual license associated with military life.[lxxvii] Acutely aware of the tension between Orthodox Jewish law and current Orthodox cultural sensibilities and norms,   R. Alfred  Cohen observes:

“At all times, authentic Jewish leadership is not constricted by the niceties of academic precedent but acts from a broader and deeper appreciation of halachic norms, which may take precedence over considerations. We also have to realize that rabbis employ a variety of methods in arriving at a Halachic conclusion, so that at times there is a certain anomaly in their conclusions.”[lxxviii]