By Chaim Saiman and Yoel Finkelman

[Editor’s Note: Publishing what follows may seem out of character for Cross-Currents. While it does not violate our editorial policy, it does challenge what has become a theme of several writers: the illegitimacy of Open Orthodoxy. Nonetheless, we are going to publish it. Here is why:

We do encourage readers to familiarize themselves with different points of view, so long as they do not involve prohibited kefirah. The authors penned their piece respectfully. Both are known to me personally, and are worthwhile emulating in important ways.

Professor Saiman has deep roots outside the haredi world. Yet he does not shy away from going wherever he has to in order to enhance his own Torah study. I was introduced to him through and because of the many hours he spends at the Philadelphia Community Kollel. The rest of us should be so accepting of what we could gain from those outside our immediate community!

Dr. Finkelman writes some of the most trenchant criticism of the haredi world. That is one of his professional subjects of interest. But in private discussion, I have found him to be just as trenchant in his criticism of his own Dati Leumi community. Halevai that the rest of us should lose some of our defensiveness, and take stock of our own flaws and inadequacies.

A response to this piece will be posted shortly after.]

Recently HaRav Herschel Schachter, shlita, published two statements – one on the question of women wearing tefillin and the other regarding so-called partnership minyanim. Those statements declare firm and uncompromising rejection of those practices, based in halakhah and hashkafah. But with trepidation and kavod haTorah, we would like to ask several follow up questions.

While he does not need our endorsement, Rav Schachter’s learning and tzidkut can hardly be overstated. In fact, we ask these questions precisely because of his greatness in Torah. As Rav Schachter says, further clarity can only follow when those who are fully embedded in Torah weigh in on the questions of the day.

Let us be clear at the outset: neither of us attend or advocate partnership minyanim. We understand that there are weighty halakhic reasons to reject women wearing tefillin, and we remain concerned that Open Orthodoxy might, in the near or distant future, find itself no longer Orthodox in any meaningful way.

Still, we found ourselves surprised by aspects of Rav Schachter’s public statements. For example, these statements declare that the heterodox movements that threaten observance make today a period of shemad, such that any change in Jewish practice influenced by those movements, even ones legally permitted, become yehareg ve’al ya’avor. As observers of Orthodox life, we look at the growth of Torah and observance over the past 50 years and find it hard to describe this era as a time of forced religious persecution. We were also surprised that Rav Schachter refers to those who allow partnership minyanim and women wearing tefillin as being Adat Korah– self-interested and hypocritical rebels against God and Torah. In our experience, the halakhic advocates of these practices are honest, fair, and sincere, and the leaders of the Open Orthodox community are observant, learned mevakshei Hashem who show every sign of disputing for the sake of heaven.

But we are troubled by several other things, as well. For, in these statements we heard almost exclusively a principled rejection of partnership minyanim and women’s tefillin. But we would very much like to also hear a positive vision for women within the halakhic community, in light of both halakhah and hashkafah, and in light of the ongoing dramatic transformations regarding gender in contemporary society.

Broadly termed, feminism has wrought many changes: female suffrage, the rights of married women to own property, a push toward equal pay for equal work, admissions to higher education, and access to the learned professions. Many women in our communities are leading doctors, partners in law firms, judges, academics, and heads of companies big and small, and many who prefer more traditional roles of mothers do so increasingly out of choice. These changes reflect shifts in the social fabric that go hand in hand with a growing ethos of democracy and equality. We, along with so many who live in the communities that look to Rav Schachter for p’sak, find these changes not only non-objectionable, but laudatory. Significant portions of the frum community have accepted or embraced many of these trends as they relate to the world at large. Internally, we have witnessed, for example, increasing women’s learning, the presence of yo’atzot halakhah in a growing number of communities, and parents whose estate planning ensures that daughters inherit equally to their brothers.

Yet as these changes have occurred, baruch Hashem, the Orthodox family remains a model of relative stability, even as divorce, children born out of wedlock, and a rejection of the nuclear family have skyrocketed in the rest of society. Over the past half-century, the Modern Orthodox community has by and large maintained or increased its observance of yihud and negiah, hair covering, and tzniuit in dress (certainly as measured against societal benchmarks), while access to Torah learning for both men and women has risen to heights that the founders of American Orthodoxy (modern or otherwise) could hardly fathom.

We do not, as Rav Schachter explained, live in the times of Tanakh or Hazal. Our society, across the spectrum of Orthodox communities, is radically different than that of Rava, Rambam, Rema, or Rav Chaim. וכאן הבן שואל: What halakhic and hashkafic import or impact does this have? What, if any, are the implications of these broad social changes on halakhic policy, practice and hashkafa? What role do we imagine for observant and God-fearing men and women in today’s society? What are the limits of halakhic flexibility, why, and how do we know? What are we to do with the dissonance between gender roles outside of synagogue and within it, a question לא שערום אבותינו — which few of our ancestors had to face to nearly the same degree? What can Torah and its leaders say to women who have trouble finding a comfortable place for themselves in the back of the synagogue? What can Torah and its leaders say to women and men who have internalized aspects of modern democratic ideas and thought, and who ask questions from these perspectives? Is there nothing to be learned or gained from the insights of feminism? Is it all the work of Korah or the Tzedukim? Is it all one big nissayon: “למען אנסנו הילך בתורתי אם לא” We may not be married to the Torah, and we have certainly not absorbed kol haTorah kullah into our very beings. But we still want to know how our honest and sincere questions about gender and Judaism can be answered. There need be no arrogance in that.

And this leads us to a broader question. Together with many Orthodox friends and academic colleagues, we are aware of developments in the fields of psychology, sociology, legal history and theory, social history, biblical history, academic Talmud, comparative religion, Jewish thought, political science, feminist theory, literature and hermeneutics. These fields teach much truth and offer much insight, but in the process they raise intellectual challenges for the Orthodox community. Moreover, they complicate the description of halakhah, mesorah and womanhood that Rav Schachter has put forward. Specifically, from where we stand, these works show that the relationship between cultural norms, legal doctrines, and the dynamics of halakhic decision-making, particularly when gender is involved, are not as straightforward as the presentation developed in Rav Schachter’s two recently-published teshuvot.

We have no illusions. Academia, no less the humanities, is prone to excesses and intellectual faddism, and the frum community is just as entitled to a critique of academia as academia is entitled to a critique of traditional religion. But there is a difference between rejecting specific conclusions or even some methods and an undifferentiated rejection of the collective evidence and methods developed in these fields. Are all their methodologies flawed? To us, the answer seems not. Are we to simply reject these approached outright, in a wholesale act of intellectual akeida? אם הלכה נקבל ואם לדין יש תשובה (m.Keritut 3:9) /If this is the law, we will accept it, but if it is based on reason, there is what to answer.

This is the reason that we are uncomfortable with recent critiques of Open Orthodoxy and its leaders penned by Rav Schachter. From where we sit, we are concerned that with some exceptions few whom Rav Schachter describes as raui le’horaha are well versed enough in these disciplines to address them and the challenges they pose from inside.

Those groups and communities who have most vocally criticized Open Orthodoxy have done little to address these questions systematically. We can understand and respect this policy, but that does not make the issue go away. For this reason, though we may disagree with some of Open Orthodoxy’s methods and conclusions, we respect that they are asking these questions directly. Its leaders are seeking an intellectual and religious space in which people who are committed to Hashem and His Torah and who have also engaged in various disciplines can try to address the relationship between those commitments. They are trying to figure out the practical implications that may derive from that.

If there are few who are worthy of hora’ah, there are even fewer ba’alei psak who have invested the time and intellectual energy needed to deeply engage in the findings and methods of these various disciplines. As society develops, new views will inevitably emerge, and controversies surrounding gender and halakhah are unlikely to abate. Without informed engagement from those who have absorbed kol haTorah kullah into their beings, can observant Jews be faulted for looking for answers in other places?

Chaim Saiman is a Professor of Law at Villanova Law School. He is currently working on a book titled Halakhah: The Rabbinic Idea of Law to be published by Princeton U. Press.

Dr. Yoel Finkelman is a Torah teacher and lecturer at Bar-Ilan University and at the Givat Washington Academic College. He is author of Strictly Kosher Reading: Popular Literature and the Condition of Contemporary Orthodoxy.