The Halakhic Status of Partnership Minyanim
Professor Aaron Koller in his recent Commentator article “Women in Tefillin and Partnership Minyanim” (published online 2/19/14), responds to a pair of letters written by my Rebbe, HaRav Herschel Schachter. Prof. Koller implies that R. Schachter’s objection to “partnership minyanim” is not halakhic, but sociological, and that partnership minyanim are fundamentally not halakhically problematic. (“The first subject was partnership minyanim, in which roles technically open to women traditionally not afforded to them, are in fact given to them.”) I am not interested in addressing in this forum the important question of sociology, which is the focus of Prof. Koller’s article, but I do think the record regarding “halakhah” needs to be corrected.
The article (and the en passant definition of Partnership Minyanim, on page 15 of the February 15th issue of Commentator as “egalitarian within Halacha”) might leave readers with the erroneous impression that partnership minyanim are technically permitted from the vantage point of halakhah as the term is typically used in our community when, in fact, they are not. Both the article and the definition assume that these minyanim are permitted according to (admittedly) minority opinions within normative traditional halakhic discourse. This assertion is inconsistent with the basic principles governing the normative halakhic process. Although I respect and support the general impulse to expand opportunities for women’s participation in religious ritual and in communal leadership, these can only be done in a manner consistent with halakhah. Partnership minyanim do not meet this criterion.
There are multiple problematic aspects to partnership minyanim, and I restrict my comments here to the most manifest ones.
The claim that partnership minyanim are “technically permissible” relies on the work and authority of Rabbi Mendel Shapiro and Rabbi Prof. Daniel Sperber. Ruthlessly compressed, their assertion of halakhic permissibility rests on two fundamental claims:
1) It is no longer an affront to communal dignity to call women for aliyot, even though that may have been the case in Talmudic times. (This is the key issue for R. Shapiro.)
2) In our contemporary context, adhering to the Talmudic mandate of calling only men to the Torah represents an affront to women’s human dignity. The Talmudic mandate of kevod ha-tzibbur is overridden by the equally (if not more) important principle of kevod ha-briyot. (This is the approach adopted by R. Prof. Sperber.)
The background to these claims lies in the interpretation of the Talmud (bMegillah 23a). In that discussion, in which the gemara rules that women may not be called to (or read) the Torah, the stated rationale for the prohibition is “kevod ha-tzibbur,” communal honor or dignity. The contours of “communal honor” have been extensively discussed in the halakhic literature. In normative halakhic practice, however, the precise halakhic definition of kevod ha-tzibbur is immaterial. As anyone familiar with halakhic process knows, the governing halakhic principle, including situations where the rationale is no longer applicable, is “kol davar she-beminyan tzarikh minyan aher le-hattiro (bBeitzah 5a).” That is to say, Talmudic enactments retain binding authority regardless of the situational applicability of any stated rationale, unless explicitly stated otherwise. As such, with the exception of the most exigent circumstances, it is beyond the authority of most, if not all, posekim to disregard such a halakha.
Within the parameters of normative halakhah, that is, halakhah as it has been historically interpreted and practiced within our community, halakhists are not empowered to abrogate Talmudic enactments, even those whose rationales might no longer apply. The reshut le-horot (authority to decide halakhah) of rabbinic ordination bestows authority to render decisions within the framework of normative halakha and through the standard halakhic process. It does not, and by definition cannot, confer authority to abrogate those principles. In our halakhic system, a rabbi can no sooner articulate a “minority opinion” that permits women’s aliyot than he can pronounce a “minority opinion” rendering stam yeinam halakhically fit for consumption on the grounds that avoiding commercially produced wine of Gentiles will not prevent intermarriage, the stated rabbinic rationale in prohibiting such wine (bShabbat 17b). Even if we were to concur with R. Shapiro’s assessment that no affront to communal dignity inheres in calling women for aliyot, the Talmudic enactment would remain in force.
The second halakhic argument constitutes a distortion of the halakhic principle of kevod ha-briyot. There is a legal principle that kevod ha-briyot can override a rabbinic prohibition, but it is operative only when a confluence of events brings an individual’s compliance with a limited set of rabbinic prohibitions into conflict with his or her dignity. It is not the rabbinic dictate itself that is the source of shame, but the consequences of its observance in a given circumstance. Neither the rabbis of the Talmud nor posekim, however, would recognize the principle as it is being used here, namely, the claim that the halakhah itself affronts women’s kevod ha-briyot by not allowing them aliyot. Total nullification of a halakhah on the basis of kevod ha-beriyot is a radical departure from standard halakhic practice.
In light of the above, there is no appropriate minority support in normative Orthodox halakhah in favor of the institution of partnership minyanim. Creating an appropriate minority opinion would require shoulders far broader than those that have been invoked to date in support of this practice.
The rapid sociological changes of the recent past, especially as they relate to gender roles, confront us, as a community committed to leading lives governed by halakhah, with a set of challenges whose scope and magnitude I do not minimize. Failure to recognize, acknowledge, and grapple seriously with these challenges would constitute an abdication of the responsibility to provide rabbinic leadership for the world in which our community lives. I do not have the temerity to predict what our community will look like in the next 100 or 200 years nor do I reflexively attribute inherent sanctity to the status quo. I am certain, however, that our way forward must meet these challenges with honesty and humility, and without violating the integrity of the halakhic process.
 This letter presents the essence of a longer, and considerably more detailed, halakhic argument that I shall be presenting, iy”H, elsewhere in the very near future.
 I leave a broader discussion regarding the question of women wearing tefillin for another occasion for the sake of brevity. Suffice it to say, while women wearing tefillin is not prohibited by Talmudic edict, the ruling of the Rema (OH 38:3) in this matter is normative for Ashkenazim.
 There are rare exceptions to this rule: a) When Talmudic or subsequent texts intimate that this prohibition was situationally dependent (cf. Ritva Avodah Zarah 6b, s.v. hahu ima’ah) or b) when the minhag (customary practice) of substantial parts of the observant community has been otherwise (cf. Tosafot Beitzah 30a, s.v. tnan). With respect to calling a woman to the Torah, there is nary a hint in the text to suggest that the prohibition is limited in scope and the minhag be-khol tefutzot Yisrael has been to forbid doing so.
 R. Meir of Rothenburg’s famous responsum (Shut Maharam Prague 4:108) permitting calling women for aliyot in a city all of whose residents were kohanim a) addressed a circumstance in which Maharam’s sole perceived alternative to calling a woman would have been to not read the Torah at all, and b) has been normatively rejected by the Shulhan Arukh. (OH 135:12). Thank you Baruch Freedman for the correction.
 By contrast, this is a key argument employed in Rabbi Elliot Dorff’s responsum in favor of allowing the prohibition of stam yeinam to fall into disuse, adopted by the Conservative Rabbinical Assembly Committee on Law and Standards on Dec. 4, 1985. The author writes: “Since the prohibition against the use of wine made by Gentiles is no longer an effective means for preventing intermarriage, which was its specific, original goal, we shall let the prohibition fall into disuse without protest.” See “On the Use of All Wines.” Accessed at http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19861990/dorff_wines.pdf on Feb. 28, 2014.
 By contrast, this approach lies at the heart of the responsum “Homosexuality, Human Dignity and Halachah,” by Rabbis Elliot N. Dorff, Daniel S. Nevins, and Avram I. Reisner, accepted by the Rabbinical Assembly Committee on Law and Standards on Dec. 6, 2006. The authors conclude that “for homosexuals who are incapable of maintaining a heterosexual relationship, the rabbinic prohibitions that have been associated with other gay and lesbian intimate acts are superseded based upon the Talmudic principle of kvod habriot, our obligation to preserve the human dignity of all people.” Accessed at http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/dorff_nevins_reisner_dignity.pdf on Feb. 28, 2014.