Halakhah Study Group 010

נושא: HSG

BET MIDRASH VIRTUALI

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אם קטן קורא בתורה בצבור בסימן רפ"ב. אם אין כהן אלא סומא או שאינו בקי. בסימן קל"ט:

בני אדם החבושין בבית האסורין אין מביאים אצלם ספר תורה אפילו בראש השנה ויום הכיפורים: הגה והיינו דוקא בשעת הקריאה לבד אבל אם מכינים לו ספר תורה יום או יומים קודם מותר ואם הוא אדם חשוב בכל ענין שרי:

Whether [it is permissable for] a minor to read from the Torah in public see Section 282. If the only priest present is blind or not versed [in reading from the Torah] see Section 139.

We do not bring a Sefer Torah to people incarcerated in prison even on Rosh ha-Shanah and on Yom Kippur. Note: This applies specifically to the Torah reading itself, but if the Sefer Torah is prepared for him a day or two previously it is permitted; and if he is an important person it is permitted under all circumstances.

1:
Paragraph 13 of Section 135 is really a kind of place holder. It raises two issues contingent to the subject of this section which are actually dealt with in other sections. The issue of whether a person who is sight-incapacitated can be called to read from the Torah is dealt with in Section 139. Since it is likely that we shall reach that section in the not too distant future it can wait until then. The other issue, of a minor being called to read from the Torah, is dealt with in Section 282. Since it is very unlikely that we shall reach that section in the foreseeable future (!) I think it would be advisable to interpolate the topic here.

2:
The following is the text of the relevant paragraph (3) in Section 282:

All may complete the seven to be called, even a woman or a minor who understands Who is the object of the blessing; but the sages said that a woman should not read in public because of the dignity of the congregation. Note: These are part of the number to be called provided they are not all women or minors. A Canaanite slave has the same status as a woman, but if his mother was Jewish he may be called. It is prohibited to read with uncovered head. There is no prohibition to call a rich and important dignitary before a Torah scholar since this is not [intended as] an insult to the Torah scholar but as an honouring of the Torah which is honoured by important dignitaries. A mamzer may be called to the Torah (see above, Section 137 about the order of those to be called).

The first part of this paragraph is an almost verbatim quotation from the famous baraita in the Gemara [Megillah 23a]: All may complete the seven to be called, even a minor and even a woman; but the sages say that a woman whould not read publicly because of the dignity of the congregation. The salient addition to this quotation is the restriction of the term 'minor' to a child 'who understands Who is the object of the blessing'. This phrase is borrowed from the Gemara [Berakhot 48a], where we are told that the great Amora Rabba, in similar circumstances, once questioned the two youngsters of his household (who were later to become great Amora'im themselves) Abayyé and Rava, as follows:

Question: To Whom are we making this blessing?
Response: To God.
Question: And where does God reside?
Response: Rava pointed upwards and Abayyé went outside and pointed to the sky.

Thus it is quite clear both from the Gemara and from the Shulĥan Arukh that in principle both children with a basic understanding and women may be called as part of the seven honoured to read the Torah.

3:
We should perhaps pause here to investigate the rather jarring caveat of the baraita (faithfully copied by the Shulĥan Arukh) that 'a woman should not read in public because of the dignity of the congregation'. I suppose that we can accept that any congregation that feels that its dignity is slighted by honouring a woman with an Aliyyah to the Torah will refrain from doing so – but such a congregation is hardly likely to be a Conservative congregation! However, if we examine the parallel passage in the Tosefta [Megillah 3:5] we find it differently worded:

All may complete the seven to be called – even a woman, even a minor. A woman should not be brought to read in public.

If we combine the two readings it becomes apparant that what the sages are saying is that it could be a slight upon the dignity of the congregation if a woman had to be specially called in to read because this would mean that there were no men present who were able to do so. (In Tannaïtic times each person read their own Aliyyah.) Under the circumstances that prevail today the caveat is no longer relevant.

4:
It is surely interesting that the note that the Ashkenazi Rabbi Moshe Isserles adds does not dispute the right of women and minors to be called to the Torah; he merely quotes earlier sources which say that women and children should constitute all of the seven called. However, in his compendium-commentary, Arukh ha-Shulĥan, Rabbi Yeĥi'el Mikha'el Epstein explains that in Tannaïtic times only the first person and the last person to be called recited blessings, the rest just reading their passage. Nowadays, each person honoured with an Aliyyah recites the blessings. Thus each person is enabling the congregation to fulfill its duty of hearing the Torah read – and a minor cannot enable the congregation to fulfill a duty because 'only someone who is in duty bound themselves can enable another to fulfill his duty'.

5:
It follows that nowadays only youngsters who have reached Bar-Mitzvah or Bat-Mitzvah should be called to the Torah. In August 1999 I wrote in a shiur in the Rabin Mishnah Study Group as follows:

From the Halakhic point of view, the male leaves childhood and becomes adolescent with the onset of puberty, which is defined as when he has produced at least two hairs around the genitalia. Strictly speaking, this physiological criterion applies to the status of Bar-Mitzvah and Bat-Mitzvah, and presumably, in much earlier times a physiological examination was made to check for the onset of puberty. When this examination later became an embarrassment, it was accepted that on average girls reach puberty at the age of twelve and boys a year later. At this age they are considered – regardless of the actual physiological phenomena – to have left childhood and to have embarked on the often tempestuous journey of adolescence towards adulthood.

It became the custom that as regards Bar-Mitzvah (and Bat-Mitzvah) since there was now only the presumption that the youngster had reached physical puberty they would be called only to Maftir, an extra Aliyyah beyond the statutory seven which is the prerogative of the person who will read the Haftarah, the portion from the prophetic literature of the Tanakh.

6:
Paragraph 14 is concerned with the propriety of bringing a Sefer Torah to someone who is not able to attend the public rteading in the synagogue. The example given in this paragraph is that of someone incarcerated in prison. (The same principle of course would apply in other cases.) In the middle ages Jews were often imprisoned by non-Jewish power-lords in order to extract their ransom from the Jewish community. For example, Rabbi Me'ir of Rothenberg (1215-1293) whom we mentioned in a previous shiur, was imprisoned in Alsace (on the Franco-German border) in 1286. An enormous ransom was demanded which the Jewish community was prepared to pay; but the rabbi himself ruled that the ransom was extortionate and should not be paid. He was still incarcerated when he died.

7:
The honour due to a Sefer Torah, which houses God's word, is such that it is to be treated with loving reverence and not trundled from place to place 'as needed'. The congregation goes to the Torah in its palace (the Holy Ark), not the Torah to the congregation. However, if a Sefer Torah is lodged in a place for a few days and not brought specially for a one-off occasional reading this is not regarded as a slight. It became the custom to stipulate that when a Sefer Torah is moved from place to place it must not be returned before it has been read from during public worship on three separate occasions. In a responsum dated 1997 (and published in the 6th volume of the Responsa of the Va'ad Halakhah of the Rabbinical Assembly of Israel, Jerusalem 1998) Rabbi David Golinkin shows that the Babylonian Talmud permits the one-off use of a Sefer Torah, but the Talmud or Eretz-Israel greatly restricts this permission. He writes:

Normally, when there is a dispute between the Yerushalmi and the Bavli, the halakhah follows the Bavli. Thus the basic halakhah in this case is that there is no restriction on moving a Sefer Torah temporarily to another place. R. Meir of Rothenberg and R. Yosef Karo, however, were influenced by the Yerushalmi when they ruled that one may not bring a Sefer Torah to Jewish prisoners even on Rosh Hashanah and Yom Kippur. But their ruling was the exception. Most authorities permitted bringing a Sefer Torah to a sick and/or important person or to the house of a mourner, or to the house of a Hatan, or for the sake of a group of people.

The preponderence of the section we have just completed has been concerned (overly concerned?) with the rights, privileges and duties of the Kohen – at least as far as Torah Reading is concerned. Previously Yiftah Shapir had asked concerning the Priestly Blessing. He now writes:

I still have some questions concerning Kohanim in our times and days. I know that Kohen is not allowed to marry a divorced woman, and neither he can marry a Giyoret. I understand that the prohibition on marrying a Giyoret is because it is said אשה זונה וחללה לא יקחו and a Giyoret is considered a זונה. Now – We also know that one of the 7 noahide commandments is גילוי עריות and that we assume in our days and times that most of the goyim do accept these mitzvas. So – if they are not suspected of committing גילוי עריות why are their daughters considered זונות and why are they forbidden for Kohanim? Does our movement have any psak considering this issue? how do we treat sons of a Kohen and Giyoret?

I respond:

First of all it would perhaps be useful to explain some of the recondite terms that Yiftah uses.

'Giyoret' means a female convert to Judaism. 'It is said" [Leviticus 21:7] of the Kohen: "They shall not marry a woman who is a prostitute, or profaned." 'The 7 noahide commandments' refers to seven precepts which are considered binding on all non-Jewish monotheists, and they include the prohibition of licentiousness. The Hebrew term 'Gilu'i Arayyot' refers to prohibited sexual intercourse.

In July 1996 in the Rabin Mishnah Study Group I wrote as follows:

The Torah basis for the prohibition of the union of a kohen with a divorcee is to be found in Vayikra [Leviticus 21:6-7]: "They [the kohanim] shall be sacred to their God and shall not profane their God's Name; for they offer the fire offerings … of their God, so they must be sacred. They shall not take a prostitute, a promiscuous woman, and they shall not take a woman whose husband divorced her, for he [the kohen] is sacred to his God."

We should notice two points. Firstly, the rationale given by the Torah is the ritual task of the kohen: because he serves in the Bet Mikdash he is dedicated and set aside. Secondly, the dedicated status of the kohen precludes him from contracting a union with what we might call "women of dubious repute".

What is not immediately clear is why the Torah seems to find a logical connection between the prostitute and the divorcee. In Devarim [Deuteronomy 24:1] the Torah discusses 'grounds' for divorce: "If a man marries a woman …, should she cease to be pleasing to him in that he finds some flaw in her, he shall write her a deed of separation, deliver it into her hand and dismiss her from his household…" Pertinent to our present discussion are two terms: "in that" and "some flaw". Rabbinic interpretation of this verse bifurcates according to the understanding of these terms. Bet Shammai understand the term "in that" [ki] as meaning 'because' and Bet Hillel understand it as meaning 'if'. Bet Shammai understand the term "some flaw" [ervat davar] as specifically indicating sexual promiscuity, and Bet Hillel understand it as indicating any flaw in the relationship. Thus Bet Shammai understand divorce to be mandatory when the wife has been unfaithful to her husband (and only then), whereas Bet Hillel see divorce as an option and for any reason. Even though later halakhah opts for the interpretation of Bet Hillel, it seems clear that the Torah text supports the interpretation of Bet Shammai, according to which the fact that a woman was "divorced by her husband" is in itself sufficient reason to assume sexual promiscuity on her part – which puts her in the same category as the prostitute and precludes her subsequent union with a kohen who is 'dedicated' to divine worship.

The responsum of the late Rabbi Theodore Friedman, which permitted Conservative rabbis to officiate at the marriage of a kohen to a divorcee, made the following points: the kohen is no longer involved in the ritual of the Bet Mikdash; kohanim are only assumed to have that status by hearsay (there are no accurate records); it is no longer axiomatic that a divorced woman is promiscuous. Thus Teddy Friedman's responsum permitted such a marriage provided that the man renounce for himself and his future offspring all claims to kehunah [priestly status] and provided the marriage ceremony was conducted privately.

However, more recent halakhic developments within the Conservative Movement have been even more lenient. In 1996 a responsum by Rabbi Arnold Goodman was accepted by the Committee for Jewish Law and Standards of the Rabbinical Assembly we find the following major points:

The prohibitions of a kohen marrying a divorcee is clearly Biblical. The reality is that very few kohanim who turn to us for marriage are concerned about their status as kohanim. Our refusal to solemnize their marriage would only lead them to be married either in a civil ceremony or in a ceremony without full huppah and kiddushin.
While we regret the dissolution of a marriage, divorce in our day offers men and women an opportunity for a second chance to develop a successful marital relationship. We also no longer perceive a divorcee as a woman who has been discarded by her former husband and hence not suitable as a spouse for a kohen.
The principle that bet din matnin la'akor davar min haTorah [A Rabbinical Court may revoke a biblical rule – SR] is applied only when faced with extreme situations, and we regard intermarriage crises as such a situation. We also note the high rate of intermarriage of divorced women who are often single mothers with minor children.
We, therefore, support the decision of two Jews to marry even when he is a kohen and she is a gerushah [divorcee – SR], and a member of the Rabbinical Assembly may solemnize such marriage.
With the negating of the prohibition in Leviticus 21:7, children born of marriages between a kohen and a gerushah are not halalim, and the kohen is no longer disqualified to serve as a kohen in our Services or rituals.
Such marriages may be properly celebrated in a public manner. Our goal continues to be to assured that such celebrations be kasher.

Also in 1996 another responsum by Rabbi Arnold Goodman was accepted by the C JLS which stated that "Given our ongoing commitment to accepting converts and the fact of modern life that Jews and non-Jews often develop relationships leading to marriage, we affirm Rabbi Klein's conclusion that – following conversion of the Gentile – a marriage between a kohen and a giyoret is not a prohibited marriage and may be solemnized by a member of the Rabbinical Assembly." (These days there is no reason to assume that non-Jews are 'steeped in licentiousness'.)

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