Recently, Rabbi Ysoscher Katz released a teshuva permitting breast-feeding in shul. In turn Rabbi Ozer Glickman commented on Facebook, generating the start of a discussion between them. Facebook does not do well for hosting such a conversation; it was moved to this blog. The discussion will be on Facebook. But first a few prefaces.

Rabbi Ysoscher Katz is the Chair of the Talmud Department. at Yeshivat. Chovevei Torah; Director of the Lindenbaum. Center for the Study of Halakha received ordination from Rabbi Yechezkel Roth, dayan of UTA Satmer. Rabbi Katz studied in Brisk and in Yeshivat Beit Yosef, Navaradok.

Rabbi Ozer is a Rosh Yeshiva at Rabbi Isaac Elchanan Theological Seminary. He has worked in hedge funds, banking, and risk management. He has also studied critical Talmud in the general academy.

The interesting contrast here is that the former has moved from the Haredi world to the modern world and is self-conscious as modern, while the latter has moved from the Conservative Conservadox world and is self-conscious of his journey.

The Topic: Breastfeeding in public was accepting in many segments of the United States for the last few decades, but the discussion was opened anew in 2007-2008 when people objected to a magazine cover. It quickly became another chip in the culture wars for the last eight years. However, recently Pope Francis made a bold action and others affirmed the act as natural. Rabbi Katz wrote a teshuva permitting breast feeding in public, here is the definitive Hebrew version online, and as PDF Breastfeeding and showing affection in shul. Word Breastfeeding and Showing Affection in Shul.

Finally, who is supporting breastfeeding in public? The clearest answer is a select percentage of millennials since they are of child birthing years.

Rabbi Glickman responded to the Teshvah with a Facebook post rejecting Rabbi Katz’s current self-identity as modern and his pesak as a modern pesak as meaningful for someone deciding Jewish law. Remember, the discussion will be on Rabbi Katz’s wall. The conclusion was posted three days later here.

On the Politics of P’sak

At the invitation of Rabbi Ysoscher Katz, I am publishing thoughts on his recent piece on nursing in shul posted on Facebook. Rabbi Katz and I have begun to develop a relationship founded on the mutual respect appropriate for two b’nai Torah in public and private discourse. At the outset, let me state unequivocally that I acknowledge Rabbi Katz to be a talmid chacham with the highest standards of integrity and honesty. I value his opinion, sincerity, and Torah knowledge. That said, there is a fundamental disagreement that has cropped up on the last three things of his that I have read. I am looking forward to discussing this difference with Rabbi Katz personally after the chagim at what we hope will be the first of several regular discussions.

When Rabbi Katz published his invitation to the community to participate in Torah study and prayer on Shabbat ha-Gadol, I noticed it. The Torah was described as “progressive.” I guess that is a dog-whistle word to the base, i.e., proponents of so-called Open Orthodoxy, that the Torah would be to their social and political taste. Given our relationship of candor with one another, I wrote to him privately (eschewing the mores of social media which demand a snarky, arrogant dismissal, often anonymous) questioning whether Torah should be consciously anything other than Torah. We agreed to table the discussion.

When Rabbi Katz published his post on kitniyot, I noticed it again. Rabbi Katz offered one suggestion for those that self-identify as Modern Orthodox and another for those who self-identify as ultra-Orthodox. I again responded, this time in the comments but with respect and affection.

When I read his piece on nursing, I saw the trope again and this time I am moved to respond to him in more detail (I will at a later time comment on the specific textual readings he offers in his extraordinarily well-written teshuva).

It is clear that poskim operate on the basis of political (in the policy rather than electoral sense) views. As human beings who engage with society, they cannot help but have views on the societies in which we live. I do not believe, however, that a genuine poseik ever proceeds with a conscious political agenda. Poskim may intend their decisions for certain ethnicities within the Jewish people that maintain distinct halakhic traditions and practices but never for groups that self-identify sociologically. Writing a Modern Orthodox teshuva is not the same.

It reminds me of a cousin by marriage who is a Conservative Rabbi. When he has discussed halakhah with me, he never discusses the issues; he can only refer to decisions by the Rabbinical Assembly or the United Synagogue. There is no supposition that there is anything actually called Halakhah without a prefix.

I do not teach Modern Orthodox Halakhah in the Yeshiva and I suspect Rabbi Katz doesn’t in his either. I don’t write teshuvot (there are plenty of real poskim to do that) but when I teach Torah I attempt to teach the real thing, without a prefix. It isn’t Modern Orthodox and it isn’t even consciously Orthodox- it’s Torah.

This is a major difference between Rabbi Katz and me. He is much more taken with the notion of Modern Orthodoxy. This stands to reason. I grew up in a Conservadox community (the lines weren’t so clear back then) with a lifestyle very close to the one I live today, the major difference being knowledge. My rabbi was a YU musmakh. Whatever I didn’t do correctly during high school wasn’t because I held other beliefs; it was because I didn’t know better. Without being too personal, Rabbi Katz consciously affiliates with a group very different from the one in which he was raised. It is natural, I would think, that he is more conscious of his current affiliation than I am of mine.

But it is more than that. In my mind, Modern Orthodoxy is descriptive, not prescriptive. I would not ever say about any practice, “We don’t do that- we’re Modern Orthodox.” There is no Modern Orthodox halakhah. There are sociological descriptions of what people who identify themselves as Modern Orthodox do. That is more for sociologists than for poskim.

I note the observations that Rabbi Katz makes about “our women.” I do not think the identity between men and women that he describes regarding attitudes toward public prayer and Torah study are as widespread as he represents. If this is a teshuva for his kehillah, then he is well within his mandate. Teshuvot, though, are written for broad swaths of the Jewish people. The mores he describes are limited to small clusters. It may well be that we should aspire to these changes but I know vast swaths of the religious community that self-identifies as Modern Orthodox in New Jersey, Pennsylvania, Chicago, Los Angeles, Michigan, Canada, Massachusetts, Tennessee not to mention Yerushalayim, Beit Shemesh, Modiin… where nursing a baby in a minyan would offend.

It may be that the commenter was correct: this was intended as “Open Orthodoxy pesika.” That is a notion that I still find difficult to accept.

Please note: Rabbi Katz and I are committed to a calm, cordial and respectful tone. Our מחלוקות are לשם שמים. It would be nice if commenters would maintain the same tone.

Editors original FB comment: So what is the operative factor here? 1) a self-identified catering to an audience 2) a mistake in what the community reactions are to breastfeeding – the “our women” issue 3)The use of modern/progressive as a meta-halakha?

לכבוד הגאון ר’ עוזר גליקמן שליט”א

אחדשת”ה כראוי וכיאות

I first want to thank you for your thoughtful comments and insightful feedback. It is reassuring to know that in a world of סתירת נערים where people who תורתם אינם אומנותם promote a Torah which thrives on an ethos of איש את רעהו חיים בלעו, there are still gedolim Be’Torah like yourself, who are able and willing to disagree with dignity and also focus on גופן של דברים.

As for your actual critique: you infer from my writings that I believe in “prefix” pesika, that there is such a thing as “Modern” or “Progressive” Torah, which is intrinsically different than its non-modern or non-progressive form. You argue that such a halakhic posture is wrong. You believe that pesika should be an objective exercise in which religious affiliation or philosophical inclination plays no role. In other words, from your perspective we differ on whether the judicial process is objective or subjective. You claim that my pesika is subjective and are strongly opposed to this approach. You see a major divide in our judicial philosophies.

(While you label it “politics” of psak, I prefer to call it the “philosophy” of psak. Politics describes considerations that are external to the judicial exercise. Philosophy, in contrast, describes considerations that are intrinsic to the pesika enterprise.)

While at first blush it seems that we strongly disagree, we actually agree-with a caveat. I too believe that agenda driven Torah is wrong and inauthentic. I, nevertheless, maintain that it is a mistake to assume that Torah exists in a pristine and objective void. Every posek brings to bear his religious orientation when deciding halakhic matters.

I will illustrate my point with an exercise I use in my halakha classes.

Satmar Rav (Rav Yolish Z”L) and R. Moshe Feinstein Z”L famously disagreed on three things, chalav stam, artificial insemination, and the required height of the mechitza.

I do not reveal to my students which views each of them held. I only tell them that each respectively paskened the same way on all three, le’chumra, or le’kulah. I then ask them if they can guess who paskened leniently and who stringently. Using the information they have about these two poskim’s judicial personalities, they always guess correctly: that R. Moshe took the more lenient position on all three issues, while Satmar Rav paskened more stringently on all three.

This outcome is not a coincidence. Their consistent approach implies that there is an underlying principle informing their decisions, an overarching “philosophy” that animates their pesak. This to me is clear evidence that each posek brings a certain orientation to his pesika. The Satmar Rav’s orientation towards chumra was based on his suspicious view of human nature. R. Moshe had the opposite orientation. His halakhic orientation was permissive because he was less cynical about human intentions.

Therefore, regardless of how much a posek claims that his psak is objective, it is simply untrue. Every psak is guided by the posek’s convictions and internal value system. A posek should consequently not strive for an objectivity which does not exist. He instead needs to develop an internal compass which will lead towards an “orientation” which is true to the text and consistent with tradition’s values. While not determinative, this orientation will then guide the posek’s pursuit of Torat emes.

Personally, my pesika is agenda free but at the same time guided by a deep sense of what I believe the Torah was meant to do. In my case, it is a strong belief that a Torat chaim coupled with a Torat chesed (Mishlei 31) is one which is aware of contemporary realities and proactively responds to them.

Derech agav, I also wish to address what seems to be a slight misunderstanding about a phrase I use in the Teshuva. When I mention “our women” (נשי דידן), I was talking about shul going, not breastfeeding.

It was an argument I utilized in the context of addressing the judicial silence on the subject. As I researched the topic I was surprised to learn that in close to two thousand years of pesika, the question of breastfeeding in shul never arose.

I believe that the explanation is sociological, that female shul attendance on the scale we are witnessing today is a relatively new phenomenon and, therefore, questions relating to female presence in shul rarely if ever came up. Until recently, women, especially those of child bearing age, would attend shul twice a year, on Rosh Ha’shana for tekiat shofar and Yom Kippur for however long they could stay in shul. (In certain communities they would also come for the kria of parshat zachor.) A Rabbi, consequently, was never asked to address this question, breastfeeding moms were not in shul. Today this sociological reality is no longer true. “Our women” have full-fledged lives even during their child-bearing years. They have rich secular and professional lives and expect the same in the religious arena. Thus when I was referring to “,נשי דידן” I was making a sociological, not a judicial claim.

בידידות והוקרה, ובברכת חג כשר ושמח,

To this Rabbi Glickman responded:

I enjoyed again reading your thoughts. I am especially charmed by the conscious desire to narrow the gap between us. Our positions may be a reflection of either our temperaments or characters. It may simply boil down to the fact that Ysoscher Katz is a much nicer person than Ozer Glickman. This is something I suspected when I first met you.

My recalcitrance, however, is unconscious and unwitting. And that is precisely my point. I may have views on economics, politics, and social policy and they may impact my view of halakhah. I suspect that they may be very different from yours. They do not, however, directly determine how I read a gemara. You and I can debate the meaning of a text and its relative weight in halakhic decision-making without dealing with the political differences between us. We are not encapsulated by our political personae and neither are the poskim to whom we both look for guidance.

The parallels between Open Orthodoxy and classical Conservative Judaism are too great to ignore. Consider Professor Louis Finkelstein’s The Pharisees in which the rabbis are transformed to populists beneficently caring for the downtrodden masses and Rabbi Akiva is recast as FDR. Consider Professor Louis Ginzberg’s essay “On the Significance of the Halakhah for Jewish History.” Beis Shammai represent the mindset of the wealthy capitalist and Beis Hillel the perspectives of labor. I do not need to reject their analyses out of hand if there is historical truth in what they claim. My point was that poskim are not prisoners of their political mindsets and that Jewish law is not social policy.

Classical Conservative Judaism failed when the historical analyses of Finkelstein and Ginzburg were turned from being descriptive into being prescriptive. Open Orthodoxy makes the same error. I simply don’t believe that Beis Hillel set out to decide halakhic matters on the basis of their philosophic approach. It was unwitting. They and all other poskim would not routinely violate what they believed textually should be the correct halakhah in favor of a philosophic principle. I attribute a greater degree of intellectual honesty to them. If the demands of the system say forbidden, all the orientation in the world won’t change the final decision.

A detail: I didn’t misconstrue what you meant by “our women.” In the Modern Orthodox community in which I live, women attend shul but not as frequently as men do. Open Orthodoxy seeks identity between the genders. I neither believe that the facts on the ground, at least in the part of the ground that I live on, support this nor do I believe that it would be a good thing if they did. Equality does not mean identity, but that’s a discussion for another time.

The exercise you describe in your halakhah class was very enlightening. I’d like to propose another exercise for your classroom. Next time you are writing on a woman-oriented halakhic question, let the students vote how their rebbe would decide before looking into any sources. I’m willing to bet they know the answer every time. Did I for a moment believe that a progressive would not assert a woman’s right to nurse? Anywhere? At any time?

That isn’t the case in my classroom, by the way, so at least we are consistent. I may have a formalist notion of law and it may be a major factor in the way I weigh legal sources. You may be a legal realist and it may be a major factor in the way you weigh legal sources. When I ponder a halakhic problem, however, that orientation is unconscious. I may not be reading the sources with full objectivity but I strive to. This makes me less predictable. Another discussion for another time: rabbinic Judaism appears to me to be unassailable formalist. That’s worth dis-cussing, too.

At this point in our discussion, though, which I hope will continue פנים אל פנים, I think we can be candid with one another. For my part, I think that an Orthodoxy that is dominated by progressivism is neither Orthodox nor Open. To redeem myself in your eyes, I am going to find some progressive question where my scholarly Kohanic friend will prove the point by opting for halakhic integrity over the fashionable mores of Riverdale.

Uh oh! I guess I just proved that I am right: you are a nicer person than I am!

בידידות ובהוקרה רבה

עוזר

Editors note- (1) Rabbi Louis Ginzberg’s approach to historically situate Halakhah and its evolution was used by Rabbi Ezriel Hildeshimer and Rabbis David Zvi Hoffman, as committed students of Von Savigny. So too at Jew’s College in London, see Rabbi Isidor Epstein introduction to the Soncino Talmud on the evolution of the law, or Rabbi Immanuel Jakobovits, even by Polei Agudah’s Rabbi Kalman Kahane approves of a historical approach. Prof. Jacob Katz, whose work is influential at YU is seen as the heir to that method. (2) See the classic Marshall Sklare, Conservative Judaism (1955, updated 1972) where he notes that in the 1940’s, 1950’s, and into the 1960’s the laity were not observant of the dietary laws or the Sabbath and they did not turn to rabbis for permission or leniency. Both Sklare and more recently Prof. Jonathan Sarna emphasized that the movement was congregational – meaning that each congregation decided on their own and even a public vote or ritual committee could decide- no halakhah was needed. A shul could choose to hold a non-kosher non-Sabbath observant Hadassah excursions. For more discussion, see Sklare chapter 7 to show that these theories of Conservative law were only a concern of a narrow right wing while unknown and with no effect on the unconcerned laity. (3) Legal realists who dealt extensively with solving practical issues to generate their response include Rav Moshe Issues, Maharam Mintz of Padua, Rav Yitzhak Elchanan, Rav DZ Hoffmann, Rav Waldenberg, and even Rabbi Liebes of the Rabbinical Alliance.

Rav Ozer,

It is Erev Yom Tov, but briefly, three quick points:

1) Your latest response very much reminds me of arguments I often have with my Satmar friends. In my conversations with them they will occasionally evoke the “milchama against tziyonos” as a justification for certain behaviors. I quickly remind them that the “war” is long over! Presented as a justification for particular actions, it is really an excuse for inaction.

When our opponents evoke the “C” (Conservative movement) argument I feel the same way. They cite old tropes as an excuse for ignoring new challenges. It adds nothing substantive to the debate. Our scourge is internal, not external. Our dor faces real challenges (high attrition rates, religious apathy, etc.), repeating the Conservative movement’s mistakes, however, is not one of them. Instead of throwing out clichés, let us work together to inspire our communities. We desperately need to revivify a Modern Orthodoxy that has become dormant and apathetic.

2) While Professor Lieberman may have overstated his case, we now know that his claims have a strong basis in the facts. Much new scholarship has been written on Qumarn in the interim. Scholars like Chana Verman, Vered Noam, Aaron Shemesh, and others have done incredible comparative work on that community. Their arguments make it abundantly clear that Chazal were in dialogue with the Dead Sea communities, offering a more tolerant bent towards the tradition. Their research makes clear that even Chazal were informed by a particular orientation when establishing Rabbinic Judaism.

3) If we are looking at historical precedence, it would be a mistake to not also look at the 12th century. R. Tam, as is well known, revolutionized our understanding of the strictures of hilchot Avodah Zara. He consistently modified the absolute prohibitions that Masechet seems to impose on interfaith commerce. He clearly did not approach masechet Avodah Zara objectively, without a predetermined orientation. To claim that his consistently lenient conclusions are coincidental is far fetched and highly unlikely. The more likely explanation is that he approached his pesok on this topic with an eye towards the financial wellbeing of his community. Proving once again that judicial orientation is an integral part of the judicial process.

Thanks again for this fruitful conversation. Hopefully this will be the beginning of many more, להגדיל תורה ולהאדירה.

A freilichen yom tov,

Ysoscher

Editors note: We are still wishing that Rabbi Katz would be more careful in the use of words like progressive, modern, evolution, or respond to reality. These words have been the subject of denominational debates, which he is seemingly unburdened. Also what is the role of all this newly read historicist scholarship in his pesak? The pronouncements in scholarly articles relying on the latest changes in social sciences are not Aharonim. Why do they have a role? Will all of Rabbi Katz’s pesak be reactive rather than constructive? Rabbi Glickman gave him an opening to call himself a legal realist, he should have taken it.

Now dear readers, like the Shakespearean narrator, I step back for the FB discussion to unfold in several acts. Be aware that as I post the opening act, they are already busy scribing their third round.

Conclusion is here.