Tasting the Bitterness of Slavery: The Hazeret vs. Maror Debate

I have often been puzzled by the presence of two reserved spots on many seder plates for the same role during the evening's festivities.  The "Maror" segment (just after making the berakhah over the matzah and just before eating the Korekh, the sage Hillel's sandwich), includes the unique berakhah,

Barukh attah Adonai, Eloheinu melekh ha'olam, asher qiddeshanu bemitzvotav, vetzivanu al akhilat maror.
Praised are You, Lord, our God, Ruler of the universe, who has sanctified our lives through His commandments, and commanded us to eat maror.  

On some seder plates, you will find only a spot for maror.  On others, you will find an additional one for "hazeret," which is also a type of maror.  Confused?  Me too.

The source for this mitzvah is Exodus 12:8, which states that the Israelites were commanded to eat the Paschal Lamb with something called merorim, the plural of maror, and it is unclear what was meant here.  According to the JPS Torah Commentary, maror "probably referred originally to the kind of pungent condiment with which pastoral nomads habitually season their meals of roasted flesh."

But the rabbis of the Mishnah, trying to interpret for their day (that is, the first couple of centuries of the Common Era), stated that this mitzvah can be fulfilled by eating one of five different types of vegetables.  Problem is, we do not know what most of them are!

Today, the practice among most of the Diaspora is to use horseradish, which for my entire life has been the traditional understanding of the word maror.  Israeli Jews, however, generally use Romaine lettuce, which is known as hazeret.  Hence the presence of the additional spot on the seder plate.

Rabbi David Golinkin just produced a new teshuvah on the subject, and it makes for a great historical romp through the pungent condiments of the Middle East and Eastern Europe.  Check it out here.

I won't spoil the surprise, but remember that whatever the answer, your family's custom is still your family's custom, and I wouldn't go changing anything at home merely on the basis of one rabbi's deduction.  Pesah is a joyous festival of freedom, not an opportunity to tell your grandparents that they have been misled for their whole lives.  Enjoy! 

חג שמח!


~
Rabbi Seth Adelson

Rabbi David Golinkin addresses "Qol Ishah" (men hearing women's voices)

In the wake of the current flap in Israel about issues surrounding what everybody is now calling "hadarat nashim," the exclusion of women, it is surely useful to take a balanced look at one of the issues on the table from a halakhic perspective with a historical eye.

Below is Rabbi David Golinkin's recent teshuvah (rabbinic response to a question regarding Jewish law) on the subject of qol ishah, literally, "a woman's voice."  The teshuvah was penned in response to an incident in September, 2011, when nine observant cadets in an officers' training program walked out of an IDF entertainment troupe performance at an official military function because they objected to listening to a woman sing solo.

Rabbi Golinkin was a featured Shabbat guest of Temple Israel of Great Neck last year, and he gave us a taste of his skill in interpreting halakhic questions for our times.  The teshuvah below is true to form.

Enjoy!

"KOL B'ISHAH ERVAH" - IS IT REALLY FORBIDDEN FOR JEWISH MEN TO LISTEN TO WOMEN SINGING?Volume 6, Issue No. 2, November 2011Rabbi David Golinkin 

In memory ofRabbi Moshe Zemer z"l(1932-2011)Rabbi, scholar and mentsch

Question: On September 5, 2011, an IDF entertainment troupe performed at an official military event focusing on Operation Cast Lead at Bahad Ehad, the officers' training base in the Negev. When a female soldier began to sing solo, nine observant Israeli officer cadets got up and left; they said that it was forbidden for them to listen to women singing. Their Regiment Commander Uzi Kliegler ran after them and ordered them to return to the ceremony. "Anyone refusing [this] order will be dismissed from the course." In the end, four cadets refused to return to the hall and were dismissed from the officers' training course while five were allowed to continue the course after convincing the committee that the move had not been preplanned. It should be noted that a considerable number of the officers' course cadets are observant and most of them did not walk out.

Subsequently, various Orthodox rabbis were quoted in the media as being for or against their action. The Ashkenazic Chief Rabbi of Israel Yonah Metzger issued a formal responsum on September 25^th justifying their actions and urging the army to arrange that only men should sing at military events where many observant men are present. Is it really forbidden for Jewish men to listen to women singing? Was there any halakhic justification for the soldiers to walk out?

Responsum:

I) The Three Talmudic SourcesAll halakhic discussions of this topic are based primarily on one sentence uttered by the Amora Samuel in Babylon ca. 220 c.e. Some rabbis have claimed that his intent is clear; we shall see below that that is very far from the case. The sentence appears in three places in rabbinic literature, twice in the Babylonian Talmud and once in the Jerusalem Talmud.

1. Berakhot 24a contains a lengthy sugya about whether one may recite the Shema in immodest situations such as two men sharing a bed or a family sharing a bed or when the man's clothes are torn and do not cover his privates. The Talmud continues:Rabbi Yitzhak said: a handbreadth in a woman is ervah[=nakedness, unchastity, impropriety]. [The Talmud discusses this and concludes: "rather he is talking about his wife and when reciting Keriyat Shema."]Rav Hisda said: a thigh in a woman is ervah, as it is written (Isaiah 47:2) "Bare your thigh, wade through the rivers" and it is written (ibid., v. 3) "your ervah shall be uncovered and your shame shall be exposed".Samuel said: kol b'ishah ervah, a woman's voice is ervah, as it is written (Song of Songs 2:14) "for your voice is sweet and your appearance is comely".Rav Sheshet said: Hair in a woman is ervah, as it is written (ibid. 4:1) "your hair is like a flock of goats".There are at least three major problems with this sugya:

a. None of these four Amoraim mention the Shema at all and it appears that this unit was copied here in its entirety from some other context.

b. Jastrow in his Talmudic dictionary (s.v. ervah, p. 1114) and many others think that Samuel is referring to a woman singing. But it is not at all clear whether Samuel means the speaking voice of a woman or thesinging voice of a woman. On the one hand, he may mean the speakingvoice of a woman (see Psalm 104:24; 21; midrashim on the verse in Song of Songs 2:14 in the Bar Ilan Responsa Project; Metzudat David to Song of Songs ad loc.). On the other hand, he may mean the singingvoice of a woman (see the beginning of the verse in Song of Songs;Ta'anit 16a; and six midrashim on Song of Songs 2:14).

c. It is also not clear if this is halakhah or aggadah. If they were making halakhic statements, they would have said: "it is forbidden to look at a woman's thigh or to hear her voice or look at her hair"; therefore they seem to be making aggadic statements followed by verses.At the most, we can say that the editor of the sugya who copied this unit here was trying to say that when one recites the Shema he should avoid a woman's handbreadth or thigh or voice or hair.

2. Kiddushin 70a-b contains a lengthy story about a man from Nehardea who insults Rav Yehudah while visiting Pumbedita. Rav Yehudah then excommunicates him and declares him a "slave". The man then summons Rav Yehudah to a din torah in front of Rav Nahman in Nehardea. Rav Yehudah asks his friend Rav Huna whether he should go and Rav Huna advises him to go. Rav Yehudah then goes to Nehardea to the house of Rav Nahman but, since he resents going, he challenges everything that Rav Nahman does and says, frequently using the words of Samuel to do so. The story continues:[Rav Nahman:] May my daughter Dunag come and give us drink?[Rav Yehudah] said to him: So said Samuel: one does not use a woman.[Rav Nahman:] But she is a minor![Rav Yehudah:] Samuel said explicitly one does not use a woman at all, whether she is an adult or a minor![Rav Nahman:] would my Lord like to send shalom to my wife Yalta?[Rav Yehudah] said to him: So said Samuel: kol b'ishah ervah, a voice of a woman is ervah [i.e. I am not allowed to talk to her].[Rav Nahman:] it is possible to talk to her via a messenger.[Rav Yehudah] said to him: So said Samuel: one does not ask after the welfare of a woman.[Rav Nahman:] Via her husband![Rav Yehudah] said to him: So said Samuel: one does not ask after the welfare of a woman at all.[Yalta then tells her husband Nahman to get to the point so that Rav Yehudah should stop insulting him.]Once again, this sugya is making secondary use of Samuel's words "kol b'isha ervah", but in this case it is not the later anonymous editors of the Talmud who have quoted Samuel but Rav Yehudah, one of his main disciples, who quotes him almost 500 times in the Babylonian Talmud. Rav Yehudah understood Samuel to say: a voice of a woman is ervah i.e. do not talk to women. This is in keeping with other Talmudic dicta about avoiding conversations with women (Avot 1:5; Eruvin 53b; Nedarim 20a; Hagigah 5b;Sanhedrin 75a; Berakhot 43b at bottom; and cf. the brief discussion by Tal Ilan).

3. Yerushalmi Hallah Chapter 2:4, ed. Vilna fol. 12b = ed. Venice fol. 58cAccording to the Torah (Numbers 15:17-21), when a person bakes a loaf of bread or a cake, they are supposed to give a small portion of the dough calledhallah to a Kohen. Today this small portion is burned after reciting a blessing. The mishnah in Hallah (2:3) says that a woman can sit and separate herhallah [and make the blessing] while naked because she can cover herself. The Talmud Yerushalmi comments:From this we learn that her rear end is not forbidden because of ervah.This is true regarding her reciting the blessing for hallah, but to look at her, anything is forbidden. As we have learned: a person who looks at her heel is like one who looks at the house of her womb [=vagina], and a person who looks at the house of her womb is as if he slept with her.Samuel said: a voice of a woman is ervah. What is the reason? "vehaya mikol znutah, "the land was defiled from the sound of her harlotry" (Jeremiah 3:9; the new JPS tanakh translates following Radak: "the land was defiled by her casual immorality").For the third time, Samuel's words are quoted in a secondary fashion in a Talmudic discussion. He was not part of this discussion and his words are not connected to the main topic which is looking at a scantily clad woman who is sitting and separating dough for hallah. Once again, it is not clear what Samuel meant to say, but there is no hint whatsoever that he is referring to the singing voice of woman; it is more likely that he is referring to her speaking voice.Thus if we were to rule on the basis of the three Talmudic passages we could say that Samuel and his fellow Amoraim quoted in Berakhot were making aggadic statements about the dangers of looking at and listening to women. On the other hand, we could say on the basis of Kiddushin (and probablyYerushalmi Hallah) that Samuel made a halakhic ruling that it is forbidden to speak to women or, on the basis of the context in Berakhot, that it is forbidden to speak to or look at women while reciting Keriyat Shema. It is pretty clear from the careful analysis above that none of these three passages say anything about a woman singing.

II) The Rif Ignored Samuel's Statement in Both Passages in the Babylonian TalmudThe Rif, Rabbi Yitzhak Alfasi (1013-1103) was one of the most influentialposkim [halakhic decisors] in Jewish history. Maimonides states that he relied on the Rif in his Mishneh Torah in all but thirty places (Responsa of the Rambam, ed. Blau, No. 251, p. 459 and the literature cited there in note 7).Hilkhot Harif, also known as Talmud Kattan, the little Talmud, codified Jewish law by abbreviating each sugya in the Talmud. He omitted the aggadic passages and most of the give and take of the Talmudic sugya, leaving only the opinions which he considered Jewish law. In the sugya in Berakhotquoted above, the Rif (ed. Vilna, fol. 15a) omitted the opinion of all four Amoraim quoted by the Talmud, as emphasized by Rabbi Zerahia Halevi (Hamaor Hakattan, ibid., fol. 15b) and by the Ra'avad of Posquieres (quoted by the Rashba to the sugya in Berakhot). In his code on Kiddushin (ed. Vilna, fol. 30b), the Rif quotes a few of the dicta of Samuel quoted by Rav Yehudah but omits the dictum "kol b'ishah ervah". This means that the Rif considered all four of the Amoraic statements in Berakhot to be aggadah and not halakhah!

III) It is Forbidden to Talk to Women or to Certain WomenIn the Rambam's (Egypt, 1135-1204) summary of the sugya in Berakhot(Hilkhot Keriyat Shema 3:16), he rules that one may not recite Keriyat Shemawhile looking at a woman, even his wife, as per the Talmud's explanation of Rabbi Yitzhak quoted above in Berakhot, but he omits Samuel's opinion entirely. But in his laws of forbidden sexual relationships (Hilkhot Issurei Biah21:2, 5) he rules that one should not wink at or laugh with or look at the little finger of one of the arayot, i.e. one of the forbidden sexual relationships listed in Leviticus 18, "and even to hear the voice of the ervah or to see her hair is forbidden". The Rambam seems to understand Samuel to mean "kol b'ishah-ervah" [assur], "the voice of a woman who is an ervah" is forbidden. This is a rather novel interpretation since that is not exactly what Samuel said. In any case, the Rambam is clearly referring to her speaking voice and not to her singing voice.This is proven by his famous reponsum about listening to secular Arabic girdle poems sung to music (Responsa of the Rambam, ed. Blau, No. 224, pp. 398-400). After giving four reasons to forbid this music he writes: "And if the singer is a woman, there is a fifth prohibition, as they of blessed memory said kol b'ishah ervah, and how much the moreso if she is singing". In other words, Samuel was referring to women speaking and the Rambam adds that it is even more forbidden if she is singing.Rabbi Ya'akov ben Asher (Toledo, 1270-1343) followed the Rambam in his Tur, one of the major codes of Jewish law (Tur Even Haezer 21) as did the Maharshal (Cracow, 1510-1573, quoted by the Perishah to Even Haezer 21, subparagraph 2).A similar opinion is found in Sefer Hassidim, which is attributed to Rabbi Judah Hehassid, a contemporary of the Rambam (Regensburg, ca. 1150-1217; ed. Margaliot, paragraph 313). He says that "a young man should not teach girls practical Jewish law even if her father is standing there, lest he or the girl be overcome by their yetzer [=evil inclination] and kol b'ishah ervah, rather a father should teach his daughter and wife". Thus, Rabbi Judah thinks that Samuel was referring to listening to the speaking voice of a woman or girl.This also seems to be the opinion of Rabbi Yitzhak ben Isaac of Vienna (1180-1250; Or Zarua, Part I, fol. 24a, paragraph 133) and the Rosh (1250-1320; Piskey Harosh to Berakhot, Chapter 3, paragraph 37).

IV) It is Forbidden to Listen to Women Singing While Reciting the ShemaThe halakhic authorities in this camp ruled according to their understanding of the sugya in Berakhot which is connected to Keriyat Shema and ignored the sugya in Kiddushin.Rav Hai Gaon (Pumbedita, 939-1038) ruled (Otzar Hageonim to Berakhot,Perushim, p. 30, paragraph 102) that a man "should not recite the Shemawhen a woman is singing because kol b'ishah ervah... but when she is just talking normally it is permitted; and even if she is singing, if he can concentrate in his heart on his prayer so that he does not hear her or pay attention to her - it is permissible...". In other words, he understood from the context in Berakhot that Samuel only says kol b'isha ervah when one is reciting the shema and he further understood that Samuel is referring to a woman singing. Even so, Rav Hai allowed a man to recite keriyat shemawhen a woman is singing if he is able to ignore her voice.This general approach was followed by a number of classic Ashkenazic poskim such as Rabbi Eliezer of Metz (1115-1198; Sefer Yerei'im Hashalem, paragraph 392); the Ra'aviah (Cologne, 1140-1225; ed. Aptowitzer, Vol. 1, pp. 52-53, Berakhot, paragraph 76); and the Mordechai (Nuremberg, 1240-1298; to Berakhot, paragraph 80). Rabbi Eliezer of Metz, on the one hand, adds a stringency that one may not recite the Shema "or dvar kedushah" when a woman is singing; but also a leniency - that because of our sins we live among the Gentiles and therefore we are not careful not to learn while Gentile women are singing. The Ra'aviah adds a leniency that one may recite keriyat shema when a woman is singing if he is used to it (or: to her voice).This general approach was also followed by Aharonim such as the Bet Shmuel to Shulhan Arukh Even Haezer 21, subparagraph 4 who expands the prohibition to tefillah [= prayer] as opposed to only the shema.   

V) A Combination of the Previous Two ApproachesA number of prominent halakhic authorities combined the previous two approaches. They ruled that a man should not talk to a woman on the basis of Samuel in Kiddushin as in paragraph III above and that a man should not recite the Shema while a woman is singing on the basis of Berakhot as understood in paragraph IV above.This camp includes the Ra'avad of Posquieres (1120-1198; quoted inHiddushei Harashba to Berakhot 24a [mislabeled 25 in the printed editions]); the Meiri (Provence, d. 1315; in Bet Habehirah to Berakhot 24a, pp. 84-85); and Rabbi Yosef Karo in his Shulhan Arukh (Orah Hayyim 75:3 and Even Haezer 21:1, 6).

VI) It is Forbidden to Listen to All Women Singing at any TimeThis approach was first suggested as a possible interpretation by Rabbi Joshua Falk (Poland, 1555-1614) in his Perishah to Tur Even Haezer 21, subparagraph 2, but he himself rejected it. The first to actually rule this way in practice was Rabbi Moshe Sofer (Pressburg, d. 1839; Responsa Hatam Sofer, Hoshen Mishpat, No. 190).Aside from the fact that this very strict approach contradicts all of the halakhic sources we have seen above, we also know from the research of Emily Teitz that this approach contradicts the actual practice of Jewish women who sang in the home, on festive occasions, as singers and in the synagogue throughout the Middle Ages.Unfortunately, the Hatam Sofer's strict ruling was adopted by many later authorities. Some tried to find "leniencies" such as allowing girls and boys to sing at the same time (Rabbi Y.Y. Weinberg, Seridei Eish) or allowing men to listen to women who cannot be seen, such as on a record or on the radio.

VII) Kevod Haberiyot Sets Aside Various ProhibitionsIn any case, even if one were to rule entirely according to the Hatam Sofer, it would be forbidden to get up and leave a concert where women are singing. Even if Samuel meant to give a halakhic ruling (which is not at all clear) and even if he meant to prohibit listening to all women singing (which we have disproved above), there is a well-known halakhic principle that kevod haberiyot [=the honor of people] sets aside various prohibitions.(1) There is no question that leaving a concert is insulting to the women performing as well as to most of the soldiers at the concert and to the commanding officers - indeed that is why the commanding officer removed those soldiers from the officers' training course.

VIII) Summary and ConclusionsWe have seen above that there is no general prohibition against women singing in classic Jewish law based on the Talmud and subsequent codes and commentaries until the early nineteenth century. The current blanket prohibition accepted by Haredi and some modern Orthodox rabbis was first suggested and rejected by Rabbi Joshua Falk (d. 1614) and was only given as a halakhic ruling by Rabbi Moshe Sofer, the Hatam Sofer, in the early nineteenth century. However, this opinion is not in agreement with the simple meaning of the dictum by Samuel and with all of the opinions of the Rishonim. The Rif ignored Samuel's dictum in both Berakhot and Kiddushin. Some Rishonim ruled according to the sugya in Kiddushin that Samuel was referring to the speaking voice of women to the extent that such conversation would lead to forbidden sexual relations. This interpretation seems to be the intent of the parallel in Yerushalmi Hallah. On the other hand, Rav Hai Gaon and most of the Rishonim in Ashkenaz interpreted the words of Samuel according to the sugya in Berakhot and therefore ruled that it is forbidden to recite Keriyat Shema where a woman is singing because of kol b'isha ervah. Finally, some of the rabbis of Provence and Rabbi Joseph Karo ruled according to both of these interpretations. Furthermore, Emily Teitz has shown that in practice Jewish women sang at home, at semahot, as singers and in the synagogue throughout the Middle Ages. Thus, there is therefore no halakhic justification for anyone walking out when women sing. But even if one accepts the very strict ruling of the Hatam Sofer, it is forbidden to walk out in order not to insult the female performers.

David Golinkin Jerusalem 4 Kislev 5772

Notes1. See David Golinkin, Ma'amad Ha'ishah Bahalakhah: She'elot Uteshuvot, Jerusalem, 2001, pp. 120-121 and the literature cited there; Daniel Sperber,Darkah Shel Halakhah, Jerusalem, 2007, pp. 34 ff. and in a reworked form inWomen and Men in Communal Prayer: Halakhic Perspectives, New York, 2010, pp. 74 and ff.; Rabbis Elliot Dorff, Daniel Nevins and Avrum Reisner, "Homosexuality, Human Dignity and Halakhah", 2006 at www.rabbinical.org. Bibliography I) ArticlesRabbi Sol Berman, "Kol Isha", Joseph Lookstein Memorial Volume, New York, 1980, pp. 45-66 (the most thorough study of this topic; summarized in Hebrew by Kaddish Goldberg in Amudim 614 [Tishrei 5758], pp. 26-27)Rabbi Ben Cherney, "Kol Isha", Journal of Halacha and Contemporary Society 10 (Fall 1985), pp. 57-75Rabbi Boaz Cohen, Law and Tradition in Judaism, New York, 1959, p. 174, note 28Orah Cohen, On Both Sides of the Divide: Gender Separation in Jewish Law(Hebrew), Bet El, 2007, pp. 189-196Elyakim Getzel Ellenson, Ha'ishah Vehamitzvot (Hebrew), Vol. 2, Jerusalem, 1987, pp. 81-91Rabbi Louis Epstein, Sex Laws and Customs in Judaism, New York, 1948, pp. 93-100M.Sh. Geshuri, "The Woman and Her Singing in the Biblical Period", (Hebrew), Mahanayim 98, pp. 92-103Rabbi M. Harari, Mikraei Kodesh, p. 233 quoted by Aviad Hacohen, Alon Shevut 11 (Nissan 5758), p. 64, note 3Tal Ilan, Jewish Women in Greco-Roman Palestine, Tubingen, 1995, pp. 126-127Admiel Kosman, " 'And Miriam chanted for them' - Kol Isha?", online at Bar Ilan University's Parashat Hashavua Study Center, February 7, 2004Hannah Pinhassi, Deot 44 (October 2009), pp. 14-17Rabbi Moshe Halevi Steinberg, Hilkhot Nashim, Jerusalem, 1983, p. 45 and the literature in note 23Emily Taitz, "Kol Isha - The Voice of Women: Where was it heard in medieval Europe?", Conservative Judaism 38/3 (Spring 1986), pp. 46-61Rabbi Moshe Zemer, Halakhah Shefuyah, Tel Aviv, 1993, pp. 234-237, 347 =Evolving Halakhah, Woodstock, Vermont, 1999, pp. 278-279Rabbi Yonatan Rosenzweig, Tehumin 29 (5769), pp. 138-143; Reaction: Rabbi Yaakov Ariel, Tehumin 30 (5770), pp. 212-215II) ResponsaRabbi Moshe Alashkar, Responsa Maharam Alashkar, No. 35Rabbi Yisachar Baer Eilenburg, Responsa Be'er Sheva, Be'er Mayyim Hayyim, No. 3Rabbi David Bigman, "A New Analysis of 'Kol B'isha Erva' ", February 4, 2009,www.jewishideas.orgRabbi Yuval Cherlow, Reshut Harabbim, Petah Tikvah, 2002, pp. 130-131Rabbi J. Simcha Cohen, Intermarriage and Conversion: A Halakhic Solution, Hoboken, New Jersey, 1987, Chapter 19Rabbi Moshe Feinstein, Igrot Moshe, Orah Hayyim, Part I, No. 26; Part 4, No. 15, paragraph 2Rabbi Meir Friedmann, "Mitwurkung von Frauen beim Gottesdienste" (German), Hebrew Union College Annual 8-9 (1931-1932), pp. 511-523Rabbi David Golinkin, Ma'amad Ha'ishah Bahalakhah: She'elot Uteshuvot, Jerusalem, 2001, pp. 102-103Rabbi Yaakov Hagiz, Responsa Halakhot Ketanot, Vol. 2, No. 93Rabbi Hayyim David Halevi, Aseh Lekhah Rav, Vol. I, No. 28; Vol. 3, No. 6Rabbi Jonah Metzger, "Kol B'ishah Ervah" (Hebrew), September 25. 2011Rabbi Meir Ben-Tziyon Hai Ouziel, Mishpitei Ouziel, Vol. 4, Hoshen Mishpat, No. 6Rabbi Eliezer Waldenberg, Tzitz Eliezer, Vol. 5, No. 2; Vol. 7, No. 28Rabbi Yehiel Yaakov Weinberg, Seridei Eish, Vol. 2, No. 8Rabbi Yitzhak Yaakov Weiss, Minhat Yitzhak, Vol. 8, No. 126Rabbi Ovadiah Yosef, Yabia Omer, Vol. 1, Orah Hayyim, No. 6III) News Articles (in chronological order)The Jerusalem Post International Edition, August 19-25, 1979, p. 15 (the rabbi of the Wall ordered a mixed group of people singing with Rabbi Shlomo Carlebach to leave the Kotel Plaza)Haaretz, June 24, 2008 (IDF forbids observant soldiers from walking out of military assemblies)The Jerusalem Post, Nov. 21, 2008, p. 7; The Jerusalem Post Magazine, December 11, 2009, pp. 28-30 (on a film intended for women only)The Jewish Press, February 20, 2009, p. 30 (on a women's concert in Brooklyn)Ynet, September 9, 2011 (news report about the latest incident)Yizhar Hess, Yisrael Hayom, September 13, 2011, p. 35 (a Masorti reaction to the latest incident)The Jerusalem Post, September 16, 2011 (Orthodox rabbinic reactions to the latest incident)Shmuel Rosner, The New York Times, November 18, 2011

Yaakov Katz, The Jerusalem Post, November 25, 2011, pp. 14-15

Rabbi David Golinkin refutes a recent Israeli halakhic ruling about rental or sale of property to non-Jews

Below is a teshuvah (literally, "answer," a rabbinic response to a question of Jewish law) by Rabbi David Golinkin, the head of the Schechter Institute for Jewish Studies, the Israeli seminary and teaching institute of the Masorti (Conservative) movement. He wrote this in response to the recent halakhic dustup caused by a group of Israeli Orthodox rabbis who ruled that Jews may not rent or sell property in Israel to non-Jews.

Rabbi Golinkin refers to a wide range of rabbinic sources, many of which will be unknown to those who are not well-versed in halakhic literature, but his point is clear: there is an overwhelming basis on which to permit Jews in Israel (and, of course, everywhere else) to rent or sell to non-Jews.

Enjoy!


* * * *


Is it permissible to sell or rent an apartment to a non-Jew in the Land of Israel? (1)
By Rabbi David Golinkin

Question: On December 7, 2010, The Jerusalem Post reported (Jpost.com) that a group of forty municipal rabbis in Israel published a letter which said that it is forbidden to sell or rent apartments to non-Jews (nokhrim) in Israel.

Amongst the reasons given for the prohibition are the danger of intermarriage and the lowering of real estate prices in areas where non-Jews live. Gentiles' "different lifestyle from Jews" can endanger lives, they wrote.

If a Jew sells or rents property to a gentile, his neighbors must warn him, and if he does not change his ways, the neighbors must avoid the person, and may not conduct business with him, according to the petition. A person who rents or sells to non-Jews also may not get aliyahs in synagogue.

Amongst the municipal rabbis who signed the petition are Rabbi Yaakov Edelstein of Ramat HaSharon, Rabbi Haim Pinto of Ashdod, Rabbi Dov Lior of Kiryat Arba, Rabbi David Abuhazeira of Yavne, Rabbi David Bar-Chen of Sderot, and others.

In addition, one of the best-known National-Religious rabbis, Rabbi Shlomo Aviner, signed the letter, as did [Rabbi Ovadiah] Yosef's son, Rabbi Yaakov Yosef...

Another ten rabbis reportedly plan to sign the letter...


Is this really the standard and only approach to this question in Jewish law?

Responsum:

I) "Lo Tehonem"

These rabbis object to handing over territories to non-Jews on the basis of Deuteronomy 7:1-2:
When the Lord your God brings you to the land that you are about to enter and possess, and He dislodges many nations before you... seven nations much larger than you... you must doom them to destruction, grant them no terms and have no mercy upon them (lo tehonem).

The simple meaning of "lo tehonem" is"have no mercy upon them" as translated above,but the Sages explained it to mean "do not give them a hold (hanayah) on the land" (Avodah Zarah 20a). Rabbi Daniel Sperber has shown (Netivot Pesikah, Jerusalem, 2008, pp. 63-71) that in the early, uncensored printings, Tosafot (to Yevamot 23a s.v hahu) and the Ba"H to Tur Hoshen Mishpat 249 interpret this to mean that one may not sell or give parts of Eretz Yisrael to any non-Jew. This was also the opinion of the Netziv in the nineteenth century (Responsa Meishiv Davar, Kuntress Dvar Hashemitah, fol. 58a) andthe Hazon Ish in the twentieth (Shvi'it 24, 3).

However, many authorities rule that this prohibition applies only to idol worshippers such as the seven nations mentioned in the verse, lest they "turn your children away from me to worship other gods" (Deut. 7:4). (Responsa of the Rashba, Part I, No. 8; the Meiri to Avodah Zarah 20a; R. Baruch Halevi Epstein, Torah Temimah to Deut. 7:2; R. Abraham Isaac Hacohen Kuk, Responsa Mishpat Kohen, No. 63 [which is based on the censored versions of the Ba"h]; R. Zvi Pesah Frank, Sefer Kerem Tziyon, Part 3, p. 13; R. Ovadiah Yosef, Torah Shebea'l Peh 15 [5733], pp. 31-32 and again in Tehumin 10 [5749], pp. 37-38; and cf. R. Yaakov Warhaftig, Tehumin 2 [5741], pp. 201-203).

Most of the Arabs in Israel today are Muslims and almost all halakhic authorities agree that Muslims are monotheists and not idol worshippers (Maimonides, Hilkhot Ma'akhalot Asurot 11:7; Responsa of Maimonides, ed. Blau, No. 448, p. 726; and cf. R. Yosef Kapah, Ketavim, Vol. 3, Jerusalem, 2002, pp. 1412-1416; Rashba as quoted by Tur Yoreh Deah 124; Taz to Shulhan Arukh Yoreh Deah 124, subparagraph 4; R. Hayyim David Halevi, Aseh Lekhah Rav, Vol. 9, No. 13; R. Ovadiah Yosef, Responsa Yabia Omer, Vol. 7, Yoreh Deah, No. 12; R. David Frankel, Teshuvot Va'ad Hahalakhah Shel Knesset Harabbanim B'yisrael, Vol. 6 [5755-5758], p. 216).

Therefore, many authorities rule that it is permissible to sell or give parts of Eretz Yisrael to Muslims. (R. Raphael Meyuhass, Mizbah Adamah, Salonika, 1777, fol. 12b; Rabbi Kuk and Rabbi Frank quoted above; R. Yitzhak Isaac Halevi Herzog, Tehumin 2 [5741], pp. 169-179 which was abbreviated in Shanah B'shanah 5746, pp. 136-140; R.Shaul Yisraeli, Amud Hayemini, No. 12, paragraph 3; and R.Ovadiah Yosef, Torah Shebe'al Peh 21 (5740), p. 14) as well as in Torah Shebea'l Peh 15 [5733], pp. 31-32 and in Tehumin 10 [5749], pp. 37-38).

Furthermore, even though many halakhic authorites claim that Christianity is a form of idol worship (see Rabbi David Frankel, ibid., pp. 213-215, 216-219), many others disagree and say that it is not (the Meiri in many places; Rabbi Moshe Isserles, Orah Hayyim 156, Rabbi Moshe Rivkes, Ba'er Hagolah to Hoshen Mishpat 425:5 and many more - see Rabbi David Frankel, ibid., pp. 219-224). Thus, according to many authorities, it is permissible to sell land in Israel to Christians as well.

II) The Approach of Nahmanides
Other opponents of selling land or houses in Israel to non-Jews rely on the opinion of Nahmanides. The book of Numbers (33:53) states: "And you shall take possession of the land and settle in it, for I have assigned the land to you to possess". Nahmanides interprets this verse as a positive commandment: "...that we may not leave the land in the hands of other nations ...and the Sages called this a commanded war". (Nahmanides' additions to Sefer Hamitzvot by the Rambam, No. 4 and cf. Nahmanides' commentary to the verse.) In other words, we are commanded to conquer Eretz Yisrael and keep her in Jewish hands regardless of the danger and any loss of Jewish life that might occur in the process.

However, Nahmanides is the only one who considers it a mitzvah to capture and retain the land of Israel. (Maimonides, Sefer Hahinukh and others do not include it in their enumerations of the 613 mitzvot.) Furthermore, many have explained that even according to Nahmanides, this mitzvah only applies in the days of the Messiah (R. Isaac de Leon in Megilat Esther to Sefer Hamitzvot ad. loc. and others).

III) Kiddush Hashem and Hillul Hashem
These two mitzvot relate to all of our relations with our non-Jewish neighbors; Kiddush Hashem is the sanctification of God's name and Hillul Hashem is the desecration of God's name. They stem from the same verse in Leviticus (22:32): "You shall not desecrate My holy name, that I may be sanctified in the midst of the people of Israel - I am the Lord who sanctifies you". This verse means that any good or holy act that a Jew does, sanctifies God's name in the eyes of his Jewish and gentile neighbors, while any bad or profane act that a Jew does, desecrates God's name in the eyes of the public.

Furthermore, Maimonides emphasizes that rabbis in particular must be careful about how they behave because any inappropriate behavior which causes people to criticize them is considered a hillul hashem (Hilkhot Yesodei Hatorah 5:11). There is no question that the letter published by the group of rabbis last week was a hillul hashem, which desecrated God's name in the eyes of the world.

IV) Mishum Eivah
The Sages of the Talmud allowed Jews to do quite a number of activities related to non-Jews which were normally forbidden, mishum eivah - in order to prevent ill will (Entziklopedia Talmudit, Vol. 1, cols. 492-493, s.v. Eivah). Thus, even if one were to claim that it is forbidden to sell or rent property to non-Jews in Israel, it could be permitted mishum eivah. There is no question that such discrimination against non-Jews in Israel could lead to increased attacks against Jews in Israel and the Diaspora and to refusal to rent or sell homes to Jews in the Diaspora.

V) Mipnei Darkei Shalom
In the Tannaitic period (ca. 70-220 c.e), Jews, Christians and idol worshippers lived side by side in many towns and villages in the Land of Israel. A baraita which appears in Gittin 61a and parallels (see my responsum in the Teshuvot Va'ad Hahalakhah Shel Knesset Harabbanim B'yisrael, Vol. 6 [5755-5758], pp. 287-288) lists a series of rabbinic enactments mipnei darkei shalom, because of the ways of peace, including feeding non-Jews, visiting their sick, and burying their dead. The Mishnah (Gittin 5:8-9) also lists a number of similar enactments. These sources do not relate to our specific topic, but renting or selling apartments to non-Jews in the State of Israel today would certainly be in the spirit of mipnei darkei shalom found in the Mishnah and beraitot.

VI) What is hateful to you do not do to others
There is a famous story in the Talmud (Shabbat 31a) about a convert who came to Hillel and asked to convert on condition that Hillel would teach him the entire Torah while standing on one foot. Hillel replied: "Mai d'alakh saney l'haverakh la te'eveid, zo hee kol hatorah kula v'idakh peirushah hu zil gemor" - "what is hateful to you do not do to others, this is the entire Torah, the rest is commentary, go and learn".

For 1900 years, from the Destruction of the Second Temple until the twentieth century, Jews were discriminated against by non-Jews. More specifically, non-Jews frequently refused to sell land or rent houses to them. This is why Jews lived in ghettos for many centuries and this ghettoizing of the Jews reached its climax in Nazi Europe. Even in the United States, there were many cities and neighborhoods which posted signs "no dogs and Jews allowed". Now, after 1900 years, when we have our own sovereign State of Israel where we are the majority, we must follow the dictum of Hillel which he considered "the entire Torah", the most basic commandment in the Torah: "what is hateful unto you to do not do to others".

VII) Love the Stranger
The Torah contains many mitzvot related to the Ger Toshav or resident alien (see David Golinkin, Insight Israel: The View from Schechter, Jerusalem, 2003, pp. 85-89). While there is disagreement among rabbis as to whether these laws apply to non-Jews living in Israel today (see ibid.), the spirit of these Biblical and Rabbinic laws demands that we treat all non-Jews in Israel with respect for "you shall love him [the stranger] as yourself, for you were strangers in the Land of Egypt" (Leviticus 19:33-34).

VIII) The Laws of the State of Israel
Israel is a democracy which guaranties equal rights to all of its citizens and forbids racism or incitement to racism.

As I have shown elsewhere (Responsa in a Moment, Jerusalem, 2000, pp. 90-91), the democratic institutions of the State of Israel are not something to be "tolerated" outside of Jewish law. Rather, they are part and parcel of Jewish law -- and living in accordance with its laws is as important as observing Shabbat and keeping kosher. There are three ways of proving this assertion:
a) The Talmudic sage Samuel, who lived in third-century Babylonia, coined the phrase "dina d'malkhuta dina" - "the law of the land is the law" (Nedarim 28a and parallels), which meant that Jews must obey the laws of the countries in which they reside. But many rabbis state that this applies to a Jewish state as well(Entziklopedia Talmudit, vol. 7, cols. 307-308).If so, Jewish law requires Jews to observe the secular laws of the State of Israel.
b) Throughout Jewish history, every Jewish kahal, or community, was governed democratically on the basis of a passage in the Talmud(Bava Batra 8b; cf. Menahem Elon, Jewish Law: History, Sources, Principles, Philadelphia and Jerusalem, 1994, Chapter 19; Ephraim Kanarfogel, Proceedings of the American Academy of Jewish Research 58 (1992), pp. 71-106). The State of Israel is the modern equivalent of the kahal, and its democratic institutions must be treated with the same respect and authority as the medieval kahal.
c) Rabbi Abraham Isaac Kuk and Rabbi Shaul Yisraeli, two of the foremost religious Zionists of the twentieth century, have explained that, in our day, the democratically elected government and leaders of Israel have taken the place of the king and must be obeyed accordingly (Responsa Mishpat Kohen, Jerusalem, 1984, No. 144, pp. 337-338, and Amud Hayemini, Tel Aviv, 1965, Part I, Nos. 7, 9).

IX) The Fifth Tur
There is a famous dictum which I heard from Rabbi Theodore Friedman z"l many years ago. One of the standard codes of Jewish law is called Arba'ah Turim, The Four Columns, written by Rabbi Jacob Ben Asher in Toledo in the 14th century. However, when a rabbi writes a responsum or makes a ruling in Jewish law he must also rely on the fifth Tur - hasechel hayashar - common sense. This too is lacking in the letter of the rabbis published last week.

X) Conclusion
Thus, according to Jewish law, it is perfectly permissible to sell or rent houses to non-Jews in the Land of Israel for all of the reasons cited.

Finally, if we are concerned that certain areas of the country such as the Galilee need more Jews, we must achieve that by Zionist education, not by discrimination. If there is concern that blocks of apartments are being bought up by Iran and Saudi Arabia, then the government of Israel must deal with this national problem.

David Golinkin
Jerusalem
8 Tevet 5761

Notes
1. This responsum is partially based on my book Responsa in a Moment, Jerusalem, 2000, pp. 32-33, 90-91; and cf. R. Shlomo Brody, "Ask the Rabbi", The Jerusalem Post Magazine, November 19, 2010, p. 43.