The Quest for an Effective Synagogue Partition Plan

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo

Shalom C. Spira; 6 Nissan, 5776
INTRODUCTION
One nebulously mysterious halakhah that governs the architecture of a synagogue is the
requirement for a partition during prayers. The insistence upon a partition during prayers is first
explicitly codified by R. Moshe Sofer, Shut Chatam Sofer, Choshen Mishpat no. 190, (although
the notion cryptically appears in many earlier sources.) R. Sofer derives the requirement for a
partition from the gemaras account in Sukkah 51b-52a of the gallery that was constructed in the
external courtyard of the Temple in order to celebrate the Rejoicing of the Water Drawing.1
1

In their original context, R. Sofers words respond to an inquiry from Viennese Jewry in 1814 regarding the proper
protocol as how to receive the local emperor (apparently Francis II) when he would visit the communal synagogue
for prayer services.
Actually, as parenthetically mentioned in the text, a considerable number of fleeting references to the
concept of a synagogue partition already appear before the Chatam Sofers time, as follows: (1) The gemara,
Megillah 28a, prohibits levity in the synagogue. Since the gemara, Sukkah 51b, describes the situation that existed
in the external courtyard of the Temple [prior to the construction of the gallery] at the Rejoicing of the Water
Drawing as one of levity (which the Sages rectified by constructing the gallery), it would presumably emerge [from
a synthesis of Megillah 28a with Sukkah 51b] that there is a mitzvah for a synagogue to possess a gallery. (2) The
gemara, Moed Katan 18a, reports that Rabbi Yochanan was confident that only gentlemen entered his study hall,
even while the gemara in Sotah 22a cites the lessons that Rabbi Yochanan learned from a widow praying in the
same study hall. Tosfot ha-Rosh to Kiddushin 52b cite Mo`ed Katan 18a as proof that ladies do not enter the
synagogue [presumably meaning the gentlemen`s section of the synagogue.] Subsequently and more explicitly, R.
Baruch Mordechai Libschitz, Shut Brit Yaakov, Orach Chaim no. 8; and R. Elijah Klatzkin, Shut Even haRoshah no. 9, posit that Rabbi Yochanan had two separate prayer sections in his study hall one for the ladies, the
other for gentlemen. [Cf., however, the posthumously published responsum of R. Joseph Chaim Sonnenfeld, Shut
Salmat Chaim (Jerusalem 5767 edition published by R. Shlomo Werner), no. 155, which observes that the Mo ed
Katan 18a refers to the study hall, and not necessarily to the synagogue.] (3) The Talmud Yerushalmi, Sukkah 5:1,
appears to describe the synagogue of Alexandria as having possessed an elevated level for the ladies. (4) As will be
discussed infra, note 45, the Midrash of Tanna de-Vei Eliyahu cited by the Yalkut Shimoni to Deuteronomy 23:15
refers to the concept of a partition during communal prayer. That midrash is also quoted by two Rishonim: the
Raaviah (no. 77) and the Rokeach (no. 324). (5) Tosafot to Rosh ha-Shanah 27b (s.v. ve-shama) declare that ladies
pray separately from the gentlemen in the synagogue. Tosafot interpret the corresponding gemara in Sotah 38b
which states that even synagogue congregants who are standing behind a mechitzah receive the blessings of birkat
kohanim, to be referring to ladies assembled in the ladies sanctuary. [However, the Maharsha regards the comment
of Tosafot to be unrelated to the substantive context of Tosafot and points out that older manuscripts of Tosafot did
not possess that reference. Nevertheless, it is instructive to note that the Maharsha does not dispute the soundness of
the observation itself (viz. that ladies pray separately in the synagogue). Moreover, both R. Jacob Joshua Falk Katz
in his Pnei Yehoshua commentary as well as R. Moshe Ibn Chaviv in his Yom Teruah commentary defend the
comment of Tosafot from the Maharshas attack. (However, Yom Teruah notes that Chiddushei ha-Rans
recapitulation of Tosafot omits the reference to ladies congregating separately in the synagogue.) Cf. R. Jacob
Etlinger, in his Arukh la-Ner commentary, who also defends Tosafots reference to ladies praying separately in
synagogue, albeit in a manner at variance from Pnei Yehoshua and Yom Teruah.] (6) Maharam of Rothenburg, in
his Teshuvot Pesakim u-Minhagim no. 557, refers to the synagogue of the ladies as being located in a different
venue than the gentlemens sanctuary. (7) R. Jacob Moelin, Shut Maharil no. 53, tangentially mentions the
synagogue of the ladies in a certain city as being stationed in the wine cellar of the attendant of the synagogue.
[Similar references appear in the Sefer Maharil (by the same author), on p. 50b and p. 59b.] (8) R. Meir Hakohen (a
disciple of Maharam of Rothenburg), in his Haghot Maimoniyot at the end of Hilkhot Shevitat Assor (s.v. Kol

Nidrei), discusses the synagogue of the ladies that existed in Maharam of Rothenburgs sanctuary complex. This
reference is cited approvingly by R. Joseph Karo in his Beit Yosef commentary to Tur Orach Chaim 619, s.v. ve-od
nahagu lalun be-Veit ha-Knesset. (9) R. Shimon ben Tzadok (another disciple of Maharam of Rothenburg),
Tashbetz Katan no. 397, cites Maharam [as well as Rabbeinu Tuvia and R. Yekutiel ben Moshe] as apparently
requiring the separation of ladies and gentlemen in the synagogue sanctuary on the occasion of a circumcision
celebration. Maharam (as cited by his disciple) invokes the precedent of the ezrat nashim [i.e. ladies gallery in the
Temple] in advocating his position. (10) R. Israel Isserlin, Shut Terumat ha-Deshen I, no. 353, analyses a question
of the distribution of seats in the synagogue of the ladies. (11) R. Moshe Isserles, Darkei Mosheh to Tur, Yoreh
Deah 265 (11), quotes Maharil as having cited the Maharam of Rothenburg to the effect that a lady transporting a
baby boy to synagogue [on the occasion of the babys circumcision celebration] should stop outside the synagogue
and hand the baby to a gentleman who will continue to carry the baby inside. This provision is subsequently codified
by R. Isserles in his gloss to Shulchan Arukh Yoreh Deah 265:11. (12) R. Moshe Isserles, gloss to Shulchan Arukh
Choshen Mishpat 35:14, quotes the (aforementioned) Terumat ha-Deshen to the effect that there is an enactment of
earlier rabbinic authorities for a Beth Din to receive testimony from a lady regarding events that occur in the
synagogue of the ladies. (13) R. David Halevi Segal, Taz commentary on Shulchan Arukh Yoreh Deah 371, 3,
describes a certain question of ritual purity that involved the architecture of the ladies gallery of a synagogue. (14)
R. Chaim Benveniste, Knesset ha-Gedolah, Orach Chaim 219, mentions the possibility of a lady reciting Birkat HaGomel in the synagogue of the ladies and the gentlemen will hear in their own synagogue. (15) R. Jacob
Reischer, Shut Shevut Yaakov III, nos. 54 and 160, describes halakhic questions relating to the ladys sanctuary of
the synagogue. (16) R. Yehudah Ashkenazi, Beer Heitev commentary to Shulchan Arukh Orach Chaim 689:1,
reports that ladies go to the synagogue of the ladies in order to hear the reading of the megillah on Purim. (17) R.
Joseph ben Meir Teomim, Pri Megadim commentary on Shulchan Arukh (Eshel Avraham to Orach Chaim 151, 1)
prohibits ritual slaughter in the ladies section of the synagogue. [I am grateful to R. Dov Linzer for bringing this
source to my attention.] (18) R. Jacob Emden, Mor u-Ketziah commentary on Tur Orach Chaim, refers to
synagogue separation of ladies and gentlemen in two distinct contexts: (a) In Orach Chaim 55 (s.v. katuv beMordekhai), R. Emden discusses the position of Rabbeinu Simchah (with which R. Emden himself does not agree)
that a lady may combine with nine gentleman to form a quorum for prayer services. R. Emden avers that in order for
such combination to hypothetically occur (apropos Rabbeinu Simchahs opinion), the nine gentlemen would have to
be assembled in a large room, and the lady would have to be standing in a separate smaller room that is open to the
larger room, such that a legal fiction of a partition intervenes between the gentlemen and herself. [I am grateful to R.
Michael Rosenberg and R. Ethan Tucker for bringing this valuable source to my attention.] (b) In Orach Chaim 282
(s.v. ve-khatav ha-Ram), R. Emden asks how could a lady enter the Temple courtyard? (an apparent invocation
of the gemara in Kiddushin 52b) to demand separate sanctuaries for ladies and gentlemen during synagogue
services. [I am grateful to Dr. Eliav Shochetman for bringing this valuable source to my attention.] (19) R. Chaim
Joseph David Azulai refers to synagogue separation of ladies and gentlemen in two contexts: (a) He reports in his
travel diary Maagal Tov (entry for 4 Av, 5537) having visited the synagogues of Carpentras, Avignon and
Cavaillon in 1777 and as having beheld that each of the synagogues possessed a subterranean section reserved for
ladies, with skylights through which the ladies could see and hear the prayer services in the gentlemens section. [A
contemporary scholar, Dr. David Sperber, notes that this phenomenon is architecturally unique to France, since in
other countries, quite the contrary, synagogues have featured elevated sections for ladies since time immemorial. His
article on the subject is available at <http://www.art-text.com/articles-728.htm>.] (b) R. Azulai writes in Machazik
Berakhah to Orach Chaim 55(10) that a gentleman standing in the ladies sanctuary but whose face is visible
through the window can combine with nine gentlemen standing below in the gentlemens sanctuary. [See infra, note
31, for a discussion of the Mishnah Berurah who copies this Machazik Berakhah.] (20) R. Avraham Danzig,
Chokhmat Adam 86:15, discusses the prohibition of demolishing a synagogue wall in the context of orchestrating
renovations for the sake of constructing windows for the ladies sanctuary.
Additionally, writing at virtually the same time as the Chatam Sofer, R. Eleazar Fleckles, Shut Teshuvah
me-Ahavah II, no. 229, sec.10 comments, based on the Zohar and the Sages of truth (chakhmei emet), that it is
improper for gentlemen and ladies to occupy the same venue during synagogue prayers.
In any event, it is precisely the Chatam Sofer who is the first authority to clearly identify the concept of a
synagogue partition as an absolute obligation that is derived from Sukkah 51b-52a.
[Nevertheless, at least one of the Rishonim appears to have adopted the diametrically opposite position of
all the above authorities and to have ruled that there is no basis for separate seating in the synagogue, viz. Teshuvot
ha-Rashba II, no. 182. Rashbas opinion is cited by both Beit Yosef to Tur Choshen Mishpat no. 35 (s.v. ve-khol elu
bein she-hayah cheresh shoteh ve-katan ve-khulei) and Rema in Shulchan Arukh Choshen Mishpat 35:14. There is

However, R. Sofer does not articulate the precise nature of this obligation (neither in the Temple
nor in the synagogue), nor does he specify the necessary dimensions of the partition. Subsequent
authorities have clashed over the clarification of these elements, and it is accordingly the purpose
of the following essay to elucidate an effective synagogue partition plan.
A. THE NATURE OF THE OBLIGATION
R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim I, no. 39 argues on the basis of the
gemara in Sukkah 51b-52a that a proper partition in a synagogue during tefillah be-tzibbur is
necessitated by virtue of the mitzvah de-Oraita of you shall revere My Sanctuary (Leviticus
19:30).2 After all, reasons R. Feinstein, the Sages modified the architecture of the Temple in
order to establish a separate gallery for the ladies, and yet Tosafot to Zevachim 33a (s.v. veliavad) rule that one may not tamper with the Temple blueprints unless one is doing so to fulfill
a mitzvah de-Oraita. [Elective modification of the Temple blueprints is proscribed on account of
I Chronicles 28:19.] Evidently, then, the renovations of the Temple architecture must have been
orchestrated under the rubric of a mitzvah de-Oraita, and the mitzvah de-Oraita that governs
sanctuary decorum is clearly Leviticus 19:30. R. Feinstein corroborates this conclusion by citing
the Jerusalem Talmud, Sukkah 5:2, which terms the construction of the gallery a matter of
Torah [law]. R. Feinstein claims, by way of extrapolation, that Leviticus 19:30 is also the
source for the obligation of a partition in the contemporary synagogue.
R. Feinsteins thesis that a synagogue partition constitutes a mitzvah de-Oraita was
actually earlier articulated by R. Yehudah Greenwald, Shut Zikhron Yehudah I, no. 62, and is
subsequently reiterated by R. Joel Teitelbaum, Shut Divrei Yoel, Orach Chaim no. 10; by R.
Joseph Mashash, Otzar ha-Mikhtavim III (no. 1766) as well as by R. Israel David Harfenes,
Shut Vayevarekh David, no. 121.
R. Feinsteins position, however, is sharply challenged by R. Yom Tov Halevi Schwarz,
Maaneh la-Iggerot, no. 18. R. Schwarz declares that a partition in a sanctuary during prayers is
a rabbinic mitzvah (and not a mitzvah de-Oraita), derived from the prophet Zechariah, for after
all the gemara in Sukkah cites Zechariah 12:12 as the source for the Temple renovations, to the
exclusion of any verse from Pentateuch Leviticus 19:30 or otherwise. R. Schwarz believes that
Tosafot in Zevachim 33a only intended to disallow tampering with the Temple architecture for a
mitzvah de-rabbanan that is devoid of prophetic basis. But a rabbinic directive which is
prophetically predicated does indeed generate authorization to tamper with the Temple
architecture. In his more recent Shut Adnei Nechoshet I, no. 93, R. Schwarz is counterattacked
by a certain interlocutor who asks that even if one concedes that the mitzvah of a partition
thus a contradiction within the rulings of both Beit Yosef and Rema regarding the synagogue partition, a problem
which will be examined infra, Section D of this essay.
Yet another one of the Rishonim, Meiri in his talmudic commentary to Rosh ha-Shanah 28a refers
obliquely to ladies who pray in a synagogue unto themselves. Whether or not those comments of Meiri endorse the
concept of a synagogue partition will be discussed infra, note 27 (as amplified by Appendix C of this essay).]
2

As the gemara in Yevamot 6b elucidates, the actual meaning of Leviticus 19:30 is a mitzvah to revere the Holy
One, blessed be He, Who has commanded us regarding the Sanctuary. [Only the Holy One, blessed be He, is to be
worshipped, as per Rambams fifth principle of faith. Thus, worshipping the edifice of the Sanctuary is strictly
forbidden as idolatry, and has absolutely no basis under the rubric of Leviticus 19:30 (or any other Torah source).]
Accordingly, whenever this essay will refer to reverence for the Sanctuary, the actual meaning (as per Yevamot
6b) is manifestation of reverence for the Holy One, blessed be He, Who has commanded us to conduct ourselves
with decorum in the Sanctuary.

originates from the prophets rather than from the Torah, it should remain the case that it be
treated as a mitzvah de-Oraita, since the gemara asserts in Rosh Hashanah 19a that divrei
kabbalah (prophetically ordained commandments) are treated as mitzvot de-Oraita. R. Schwarz
effectively responds with a two-pronged rejoinder: (a) It is in fact controversial whether the
passage in Rosh Hashanah 19a is normative such that divrei kabbalah are actually treated as
mitzvot de-Oraita.3 (b) Even according to those poskim that divrei kabbalah are treated as divrei
Torah, that is only so for a mitzvah which the prophets explicitly command, as distinct from the
mitzvah of a partition in the Temple which is only derived by way of indirect inference.4 The

Even so, R. Yechiel Danziger, Zemanei ha-Purim (Bnei Berak 5765), ch. 2, calculates that the majority of poskim
holds that divrei kabbalah are indeed treated as divrei Torah, and that such is the halakhah.

However, one must then inquire how to reconcile R. Schwarz proposition with Tosafot to Zevachim 33a, s.v. veliavad. For if indeed it is the case (as R. Schwarz declares) that a partition in the Sanctuary only constituted a
rabbinic mitzvah (as distinct from a mitzvah mi-divrei kabbalah), then according to Tosafot it should not have
merited the overriding of the original Temple blueprints. The fact that the Sages constructed a balcony ipso facto
means that it must have represented more than a mitzvah de-rabbanan. Evidently, what R. Schwarz must mean is
that there are two classes of divrei kabbalah those that are directly instructed by the prophets, which according to
some poskim are to be treated like divrei Torah, and those that are only indirectly inferred from the prophets, which
according to all poskim are only to be treated as a mitzvah de-rabbanan but that both kinds of divrei kabbalah are
sufficiently authoritative to override the original Temple blueprints.
R. Schwarz analysis regarding the possible existence of two distinct classes of divrei kabbalah is well
taken. Nevertheless, R. Schwarz resulting thesis that the Temple balcony is a rabbinic mitzvah appears
incompatible with the Jerusalem Talmud in Sukkah 5:2, where the construction of the Temple balcony is described
as a devar Torah - a matter of Torah [law]. R. Schwarz himself takes cognizance of this point and responds that
sometimes the term devar Torah does not literally mean a mitzvah de-Oraita. As evidence for this approach, R.
Schwarz cites the gemara in Eruvin 4b which states that there is a devar Torah that if a foreign substance covers
the majority of a persons corporeal surface area, and the person objects to the presence of the foreign substance, the
person is unable to immerse in a mikveh. Yet, in context, the gemara teaches that this law is not derived from written
scripture, but rather from a Halakhah le-Mosheh mi-Sinai. Thus, argues R. Schwarz, devar Torah does not
necessarily mean a commandment of the Written Torah, and so it does not support R. Feinsteins claim that the
Temple balcony is biblically required as a function of Leviticus 19:30. Indeed, observes R. Schwarz, the halakhah is
that any doubt regarding a Halakhah le-Mosheh mi-Sinai (e.g. a doubt regarding orlah fruit in the Diaspora) is
adjudicated to the side of leniency, demonstrating that a Halakhah le-Mosheh mi-Sinai is markedly different that a
law derived from the Written Torah. Similarly, the gemara in Berakhot 19b states that there is a devar Torah that
a tent which hosts a corpse but which also hosts [above the corpse] an empty volumetric space of a handbreadth by a
handbreadth by a handbreadth is capable of shielding the outside world from the corpse contamination. Yet, here as
well, the gemara is actually referring to a Halakhah le-Mosheh mi-Sinai.
However, with all due reverence to R. Schwarz, it would seem to this writer that R. Schwarz references to
Eruvin 4b and Berakhot 19b actually strengthen R. Feinsteins case. A Halakhah le-Mosheh mi-Sinai is assuredly a
matter of Torah law, i.e. the direct commandment of the Holy One, blessed be He. A Halakhah le-Mosheh mi-Sinai
does not appear in the Written Torah, but it is still integral to the Torah, being featured by the Oral Torah. [It is true
that a doubt regarding orlah in the Diaspora is to be adjudicated to the side of leniency, but that principle itself is
part and parcel of the Oral Torah.]
As such, there is cogent reason to interpret devar Torah in the Yerushalmi (Sukkah 5:2) as a matter of
Torah law, as distinct from rabbinic legislation. And since, in the case of Sanctuary decorum, it is clear that there is
a verse in the Written Torah which governs the worshippers behaviour, viz. Leviticus 19:30, there is no need to
interpret devar Torah in the Jerusalem Talmud as a reference to a Halakhah le-Mosheh mi-Sinai. Rather, it can be
understood in a straightforward manner: there is a mitzvah de-Oraita, based on Leviticus 19:30, for ladies and
gentlemen to be separated by means of a balcony when they are assembled in the Temple. And even though the
prophecy of Zechariah only contains an indirect reference to the need for a partition, the prophet is offering a gilui
milta an illuminating reflection on what Leviticus 19:30 actually means in terms of practical application. The
prophet is teaching that emotional reverence is achieved when ladies and gentlemen each occupy their own
campus, such that Leviticus 19:30 effectively commands ladies and gentlemen to each occupy their own campus in

partition is merely derived from an indirect reference of the prophet Zechariah. Thus, R. Schwarz
stands by his original position that a synagogue partition is definitely a mitzvah de-rabbanan and
not a mitzvah de-Oraita.
R. Schwarz further challenges R. Feinsteins willingness to apply Leviticus 19:30 to a
synagogue, when the sanctity of a synagogue is obviously not of the same ranking as the sanctity
of the Temple. [Without explicitly identifying R. Feinstein, this remonstration is also articulated
by R. Benjamin Silber, Shut Az Nidberu XII, no. 48.] R. Feinstein himself takes cognizance of
this problem, answering that although a synagogue may not be of identical stature to the Temple,
nevertheless during the prayers themselves the congregation must treat themselves with the
equivalent reverence as though they are present in the Temple. [R. Feinstein supports his claim
by quoting Ran5 who explains that the Sages endowed a synagogue with sanctity on account of
the prayers that are recited therein.] R. Schwartz objects that this equation appears to be entirely
unsubstantiated.6
the Sanctuary. Indeed, precedent to that effect may be marshalled from the gemara in Bava Kamma 2b which
authorizes a prophetic verse to serve as a gilui milta in elucidating a Torah commandment.
Actually, as will be demonstrated in Section F of this essay, there is one scholar who has advanced
evidence that the gemara in Sukkah 51b-52a indeed refers to a Halakhah le-Mosheh mi-Sinai, viz., R. Abraham
Weinfeld, Shut Lev Avraham, no. 135. Thus, R. Weinfeld would agree with R. Schwarz rendition of devar
Torah. But even according to R. Weinfeld, it is a Halakhah le-Mosheh mi-Sinai and not rabbinic legislation. Thus,
it is a matter of Torah law. Moreover, as will become manifest in Section F, it is impossible to reconcile R.
Weinfelds position with the Yerushalmi Maaser Sheni 5:3. Thus, to claim as does R. Schwarz that the
Yerushalmi Sukkah 5:1 refers to a Halakhah le-Mosheh mi-Sinai would necessitate creating an internal division
within the Yerushalmi. This is, of course, not entirely impossible, but it is not entirely compelling, either.
[Incidentally, as will be further highlighted in Section F, there is actually some dispute among the poskim
as to whether one can actually extrapolate from orlah in the Diaspora to other cases of Halakhah le-Mosheh miSinai.]
5

Ran Al ha-Rif, Megillah 8a (in the pagination of the Rif), s.v. u-man de-sharei.

It seems to this writer that a defense to R. Feinsteins equation may be adduced from Tosafot to Shevuot 7b (s.v.
ba-avodah zarah hu omer le-maan tamei et Mikdashi), who translate the term Mikdashi in Leviticus 20:3 as the
Sanctity of My Name. Thus, one could argue that when the members of the congregation are occupied with the
Sanctity of the Name of Holy One, Blessed Be He, by reciting kaddish, kedushah or barkhu, they are present in a
virtual Temple and are biblically bound by the commandment you shall revere My Sanctuary canonized by
Leviticus 19:30.
As for R. Feinsteins citation of the Ran, it seems to this writer that R. Feinsteins actual proof stems from
the Rans conspicuous avoidance to offer the obvious explanation that the Sages simply endowed the synagogue
with sanctity on account of the biblical sanctity of the Temple, seeing as a synagogue is considered a Minor
Sanctuary by Ezekiel 11:16 (as per the gemara in Megillah 29a). The fact that the Ran insisted instead on
attributing the rabbinic decree to ordain a synagogue with sanctity to the special prayers that are recited therein (i.e.
kaddish, kedushah and barkhu) reveals that the sanctity of those prayers is actually biblical in nature. [The
axiomatic assumption of R. Feinstein is that the Sages would only decree rabbinic sanctity in a synagogue on
account of a pre-existing biblical sanctity.]
See also R. Ben-Zion Meir Chai Uziel, Shut Piskei Uziel no. 49, who interprets the Ran differently (and
more stringently) than R. Feinstein. R. Uziel asserts that the Ran actually means that Leviticus 19:30 applies with
biblical force in the contemporary synagogue. Thus, for R. Uziel it is obvious that the obligation of a partition in the
contemporary synagogue is just as great as the obligation of a partition in the Temple.
In any event, quite apart from the Rans opinion, the question of whether the sanctity of a contemporary
synagogue is biblical or rabbinic in nature is a well-trodden dispute among the Rishonim. See Encyclopedia
Talmudit, III, p. 194, as well as R. Yechiel Michal Tukatchinksy, Ir ha-Kodesh ve-ha-Mikdash IV, pp. 31-32, for a
digest of views on this subject. [The point of R. Feinstein, however, is to claim that even those Rishonim who hold
that the sanctity of a synagogue is only rabbinic in nature should agree that during kaddish, kedushah or barkhu the
sanctity becomes biblical in nature.]

R. Feinsteins position is also challenged by R. Yehudah Herzl Henkin, Shut Bnei

Vanim I, no. 3, where the latter infers from Rashi to Sukkah 51b (s.v. kra ashkechu) that a
Temple partition is to be reckoned as a mitzvah de-rabbanan, since Rashi calls the requirement
a fence. And all the more so, in the synagogue a partition is certainly no more than a mitzvah
de-rabbanan.7
R. Henkin further torpedoes the conclusion of R. Feinstein by citing the commentary of
the Maharsha in his Chiddushei Aggadot to Sukkah 51b, where the Maharsha explains that, in
justifying the construction of the gallery, the gemara means to say that there is no prohibition
against tampering with the Temple blueprints when the purpose of the renovation is to avoid a
prohibition unrelated to the sacrificial service. One may directly infer from the Maharsha that the
partition was a de-rabbanan requirement whose purpose was to avoid a prohibition unrelated to
the sacrificial service.8
7

It seems to this writer that R. Feinsteins position could be defended by explaining that Rashi means that the
essence of the mitzvah de-Oraita is to establish a fence. Indeed, R. Yitzchak Yaakov Weiss, Shut Minchat
Yitzchak II, no. 20, interprets Rashi to Leviticus 19:2 in precisely such a manner. Thus, the word fence in Rashis
commentary does not mean a mere safeguard. Rather, the word fence means the partition itself, and the partition
itself is the cheftza of the mitzvah de-Oraita in question. [See also Shut Vayevarekh David, no. 121, s.v. viayen
Rashi sham, where R. Israel David Harfenes vacillates between interpreting the word fence employed by Rashi
in Sukkah 51b as a partition or as a safeguard.]
Alternatively, even if one translates fence as a mere safeguard, one might still defend R. Feinstein by
positing that the Sanctuary partition is indeed a mitzvah de-Oraita but that the purpose of this mitzvah de-Oraita is
to safeguard against the violation of other biblical prohibitions. The justification for such a novel suggestion
emerges from R. Yitzchak Yosef, Yalkut Yosef, Issur ve-Heter III (Hikhot Bassar be-Chalav), pp. 32-36, who
describes several cases of biblical interdictions which constitute decrees to safeguard against the violation of other
biblical commandments. [E.g., the prohibition against possessing chametz on Passover is a biblical safeguard against
eating chametz on Passover.] Thus, the fact that Rashi employs the term a fence does not necessarily preclude the
possibility that it may be a mitzvah de-Oraita.

R. Feinstein himself acknowledges the formidable difficulty posed by the inference that may be drawn from the
Maharsha, but defends himself by dismissing that inference in light of the gemara in Chullin 83b which invokes the
prohibition against tampering with the Temple architecture in the context of covering avian blood, even though that
is a context which is entirely separate from the sacrificial service. However, R. Henkin refutes R. Feinsteins
attempted self-defence by observing that the covering of avian blood is necessarily a natural consequence of
sacrificing birds, and is one that cannot be compared to the question of constructing a ladies gallery in the Temple.
[After all, it is inevitable that blood will emerge from sacrificial birds during melikah. By contradistinction, the
sacrificial service does not necessarily result in ladies choosing to congregate in the Temples external courtyard.
And even the obligation of ladies congregating in the Temples external courtyard for Hakhel once in seven years is
unrelated to the sacrificial service.]
Nevertheless, despite the cogency of R. Henkins attack on R. Feinstein, it seems to this writer that R.
Feinsteins thesis remains sustainable based on Tosafot to Zevachim 33a (s.v. ve-liavad) who state that renovations
could not be effectuated in the Temple for the sake of facilitating a rabbinic decree against a metzora entering a few
paces into the inner courtyard [-a decree which would be designed to prevent the metzora from venturing in further
than he is actually permitted (gezeirah shema yarbeh be-pesiot)]. Yet, a rabbinic decree against a metzora entering
a few paces into the inner courtyard is just as unrelated to the sacrificial service as the decision to construct a gallery
for the ladies at the Rejoicing of the Water Drawing. In either case the proposed renovation does nothing to facilitate
the sacrificial service, but is rather designed to prevent an external transgression (-contamination of the Temple in
one case, lack of decorum for the Temple in the other). This clearly contradicts the inference drawn from the
Maharsha, and upholds the thesis that the construction of a gallery in the Temple constituted compliance with a
mitzvah de-Oraita (in contradistinction to the proposed renovations for the sake of gezeirah shema yarbeh bepesiot).
Admittedly, one could counter by positing a subtle distinction between the cases of the metzora and the
ladies gallery, even though both of those instances involved the avoidance of an external prohibition. The
distinction would lie in the fact that the proposed renovation in the context of the metzora would allow the metzora

to stand outside the courtyard wall and insert his hands through an aperture in the wall in order to perform semikhah
on the head of his asham sacrifice which is standing inside. Thus, although the purpose of the proposed renovation
was to avoid an external transgression unrelated to the sacrificial service, the actual logistics of the proposed
renovation would have indeed involved a change in the sacrificial service. Still, it seems questionable whether such
a renovation can be termed as being for the sake of the sacrificial service, and so there remains a safek in favour of
the plausibility of R. Feinsteins thesis.
Phrased alternatively, in the case of the metzora, the contemplated renovation is designed to solve a
problem one degree removed from the sacrifical service, whereas in the case of the Rejoicing of the Water Drawing,
the actualized renovation is designed to solve a problem two degrees removed from the sacrificial service. How so?
In the case of the metzora, the sacrificial service dictates that semikhah be performed. A consequence of the
semikhah is that the owner might venture further into the courtyard than he is actually permitted. Thus, the putative
renovation would solve a problem that is one degree removed from the service. In the case of the Rejoicing of the
Water Drawing, the daily water libation service in the Temple on the holiday of Sukkot necessitates a celebration,
pursuant to the injunction you shall draw water with joy (Isaiah 12:3) as expounded by the gemara in Sukkah 48b.
[And see also Tosafot to Shabbat 21a, s.v. simchat beit ha-shoeva shanei, who explicitly declare that burning the
priestly vestments for the sake of providing illumination at the Rejoicing of the Water Drawing is halakhically
considered a bonafide necessity of the sacrifice (tzorekh korban). Tosafot justify this by invoking Isaiah 12:3.]
The celebration, in turn, may lead to lack of decorum in the Sanctuary. Thus, the renovation would solve a problem
that is two degrees removed from the service. Accordingly, it seems questionable why there should be a difference
whether the problem being solved is one degree or two degrees removed from the service, and so there remains a
safek in favour of R. Feinsteins thesis.
At the same time, it must be noted that Chazon Ish (Kodashim 8:4) rejects Tosafots entire approach to the
issue of gezeirah shema yarbeh be-pesiot, and posits instead that the Sages of the Talmud simply possessed an oral
tradition that tampering with the architecture of the Temple for the sake of semikhah is contraindicated. In effect,
Chazon Ish voids the entire sugya in Zevachim from any meaning imputed to it by R. Feinstein, which leads to the
inevitable conclusion that R. Feinstein is refuted by the Maharsha. Nevertheless, Chazon Ish is himself contradicted
by R. Ezekiel Landau, Doresh le-Tziyon no. 11 (subsection derekh nachash alei tzur, paragraph that begins with the
words ve-omer ani lifee ha-maskana). R. Landau appears to have fully anticipated Chazon Ishs challenge to Tosafot
[obviously well over a century before the Chazon Ish was even born] and to have resolved it quite smoothly, thus
upholding the words of Tosafot, and sustaining the plausibility of R. Feinsteins thesis. [In order to appreciate the
significance of the Chazon Ish and Doresh le-Tziyons competing treatments of the Tosafot in Zevachim 33a, an
overview of the sugya in Zevachim is necessary, which may be found in Appendix A of this essay.] Thus, it remains
the case that there exists a safek that perhaps the construction of the ladies gallery in the Temple constituted a
mitzvah de-Oraita, as R. Feinstein indeed rules.
[Moreover, if one is willing to grant the approach presented in the second paragraph of supra, note 7, viz.
that the Torah itself may present decrees to safeguard against other transgressions, then even the Maharshas
remarks become compatible with R. Feinsteins thesis. Indeed, R. Feinstein appears to allude to this point
(paragraph that begins with the words u-lefi zeh) by averring that perhaps the intention of Maharsha is as I have
clarified, i.e. the requirement to construct the balcony was biblical in origin, but the nature of the biblical
prohibition is one which is defined by having the purpose of preventing a transgression unrelated to the Temple
service.
This writer would hypothesize that such an interpretation of Maharsha would methodologically parallel the
gemara in Sanhedrin 20a (-a passage which is indeed tangentially referenced by R. Feinstein, p. 98 of Iggerot
Mosheh, eleven lines from end of righthand column). There, the gemara reports that, in some locales, it is customary
to prohibit the participation of ladies in the funeral procession that leads before the coffin. Additionally implicit in
the gemara (and its attendant codification in Shulchan Arukh Yoreh Deah nos. 358-359) is that in those locales
where ladies do not lead the procession, ladies cannot serve as the actual pallbearers, either. Tosafot and Mordekhai
(both based on the Jerusalem Talmud) explain that the concern centers on championing the honour of the righteous
ladies of Israel via crypsis. What Tosafot and Mordekhai appear to be commenting is that the coffin at a funeral
procession is the object of publicity (since the entire community enjoys a mitzvah to accompany the coffin until
interment), and if one of the pallbearers would be a lady (or arguably if even one of the people leading the way
for the coffin would be a lady) this would be incompatible with crypsis. Yet crypsis does indeed constitute a mitzvah
when the lady is married, as per the gemara in Ketubot 17a. Thus, the mitzvah of kevod ha-met honouring the
corpse by sparing it from unnecessary abuse demands the corpse be prevented from being employed as a vehicle to
transgression. {Cf. R. Moshe Sofer, Chiddushei Chatam Sofer, Shabbat 21b and R. Shimon Sofer, Shut Hitorerut
Teshuvah I, no. 35, where a methodologically identical point is rendered regarding Chanukah candles; since the

Ultimately, then, two fundamental arguments are being launched against R. Feinsteins
thesis that a synagogue partition constitutes a mitzvah de-Oraita. Perhaps the construction of the
Temple gallery did not constitute a mitzvah de-Oraita. And perhaps the requirement to maintain
decorum in the contemporary synagogue does not constitute a mitzvah de-Oraita. Either of these
cogent propositions would suffice to neutralize R. Feinsteins thesis.
It would appear to this writer that given the responses that can be offered on behalf of
R. Feinstein each of these questions remains a safek, and so R. Feinsteins thesis emerges as
being a safek possibility.9
purpose of the candlelighting is to generate visual publicity, propriety dictates that wherever possible (i.e. if
another member of the household is available) a lady be excused from the task. Of course, as Chatam Sofer and
Hitorerut Teshuvah candidly acknowledge, the gemara in Shabbat 23a unequivocally instructs a lady to light
Chanukah candles. Still, Chatam Sofer and Hitorerut Teshuvahs essential line of reasoning appears perfectly
transposable to the gemara in Sanhedrin 20a. Viz., since no particular individual is commanded to serve as a
pallbearer, the custom evolved as a function of kevod ha-met to prohibit ladies as pallbearers.} Mutatis mutandis,
Maharsha may be commenting that the biblically required reverence for the Sanctuary may demand a partition
between ladies and gentlemen to prevent the Sanctuary from serving as a vehicle for transgression. If so, Maharsha
is harmonized with R. Feinstein.]
9

See supra, notes 3, 4, 6, 7 and 8, for solutions in favour of R. Feinstein.

In a telephone conversation with this writer on January 31, 2008, R. J. David Bleich cogently remonstrated
that this conclusion would lead to the reductio ad absurdum that all of Jewry during the days of the first Temple was
possibly guilty of violating a biblical commandment. [After all, the balcony described by the gemara in Sukkah 51b
was only constructed during the second Temple era, as per the commentary of the Vilna Gaon to the parallel
mishnah in Middot 2:5. And so, throughout the first Temple era, whenever Jews would congregate in the external
courtyard (e.g. for Hakhel or for the Rejoicing of the Water Drawing), they were possibly transgressing Leviticus
19:30. The same remonstration to R. Feinstein is advanced by R. Menasheh Klein in his Shut Mishneh Halakhot
VII, no. 12.] Although one might technically respond by invoking the gemara in Chullin 7a to the effect that divine
providence can arrange for a scholar of a later generation to discover a chiddush that completely escaped the
attention of earlier generations (makom hinichu li avotai le-hitgader bo), R. Bleich correctly insists that it is
formidably difficult to apply this dictum when it results in the incrimination of previous generations. [It is true that
Rashi to Zevachim 62a (s.v. ela amar Rav Yosef) states that Solomon did not understand to expound a verse
regarding the construction of altar, and that only the Jews in the time of Second Temple understood how to properly
expound it. Thus, it emerges that at least according to Rashi it is possible to claim that Solomon may have
actually erred in a detail of the construction of the First Temple. However, that does not mean that the entire House
of Israel could have equally erred in transgressing Leviticus 19:30 whenever in gathered during the First Temple era.
R. Bleich appears to be remonstrating that there is a difference between one tzaddik (Solomon) committing an error,
and an entire nation of tzaddikim erring.]
Perhaps one may resolve this difficulty on the basis of the Sefer Yereim no. 324 and the Minchat Chinukh
(mitzvah no. 254, top of p. 266 in the Makhon Yerushalayim edition), who both declare that the mitzvah of Leviticus
19:30 has been assigned to the Sages for definition. Thus, one may postulate that the Sages of the Second Temple
realized that it is necessary to define Leviticus 19:30 as mandating the existence of a balcony in the Sanctuary,
whereupon it thenceforth became binding Torah law (without retroactively condemning the Jews of the First Temple
era).
In support of this approach, it may be noted that many other precedents exist where a view has been
expressed by the Rishonim [as well as Acharonim] that the Torah empowers the Sages to define the parameters of a
de-Oraita law. Some representative examples include:
1) Regarding the prohibition against labour on Chol ha-Moed, many authorities (catalogued by the
Mishnah Berurah in his Biur Halakhah to Orach Chaim no. 530) submit that it is de-Oraita in origin and that the
Torah empowers the Sages to define its parameters. The Biur Halakhah concludes that, according to these poskim,
any doubt that arises regarding the laws of Chol Hamoed must be adjudicated to the side of stringency, seeing as
safek de-Oraita le-chumra.
2) Regarding the non-culinary afflictions of Yom Kippur, the Mishnah Berurah to Orach Chaim no. 611
(3) cites several authorities who contend that these restrictions are de-Oraita in origin. The Mishnah Berurah
concludes that, according to these poskim, any doubt that arises regarding the laws of the non-culinary afflictions

must be adjudicated to the side of stringency, seeing as safek de-Oraita le-chumra, In his Shaar ha-Tziyun (1), the
Mishnah Berurah cites the Ran as having asserted that the Torah empowers the Sages to define the parameters of
these non-culinary afflictions.
3) Regarding which types of images a Jew is prohibited to create by virtue of Exodus 20:20 (as elaborated
by the gemara in Avodah Zarah 43b), Tosafot to Yoma 54a-b (s.v. keruvim de-tzurata) express the possibility that
perhaps the definitional parameters of the prohibition have been assigned to the Sages.
4) Regarding the permission of a lady to remarry when her insolubly missing husband is reported to be
dead on the basis of a solitary witness, three Rishonim explain that the Torah empowers the Sages to define the
parameters of credible testimony: Reah quoted by Ritva to Yevamot 88a (s.v. mitokh), Ritva himself (ibid.), and
Nimukei Yosef (ibid.). According to Chazon Ish (Even ha-Ezer 22:3), there is even a fourth Rishon who espouses
this position: Tosafot to Yevamot 88a (s.v. mitokh). [However, Chazon Ish is disputed by R. Samuel Halevi Wosner,
Shut Shevet ha-Levi IV, no. 163.]
5) Beit Yosef, toward the end of Yoreh Deah no. 178, expresses the possibility that Leviticus 18:3 is a
Torah law whose definitional parameters have been assigned to the Sages.
[See R. Yonah Emanuels article Lo Mesaran ha-Katuv ela la-Chakhamim published tripartitely in HaMaayan 15:2 (Tevet 5735); Ha-Maayan 15:3 (Nissan 5753); and Ha-Maayan 17:3 (Nissan 5737), for a nearly
encyclopedic list of all such precedents, including the above five plus many others from both Rishonim and
Acharonim. R. Yaakov Wehl, in his Ikvei Aharon commentary on Tractate Chagigah (Israel, 1992), p. 86, adds one
further case, viz. Ritva to Bava Batra 165b, s.v. mah hatam pesula de-Oraita. Ritva comments that the definitional
parameters of gittin and shetarot have been assigned by the Torah to the Sages.]
Indeed, the above approach is suggested by R. Feinstein in an entirely different context (Iggerot Mosheh,
Choshen Mishpat II, no. 73, sec. 4, p. 306, righthand column, nineteenth line), where he writes: and it is as we find
that many matters in the Torah are only stated in a general manner, and the Torah relies on the Sages to elucidate the
details.
{R. Bleichs objection is also posed by R. Abraham Weinfeld, Shut Lev Avraham, no. 135. R. Weinfeld
offers a solution which is methodologically parallel to that of this writer, but which is substantively different. R.
Weinfeld claims that there is a Halakhah le-Mosheh mi-Sinai which requires that ladies and gentlemen be separate
whenever they assemble anywhere, and that this was the original reason why, as recorded in Sukkah 51b, ladies and
gentlemen always congregated separately at the Rejoicing of the Water Drawing, even before any balcony was
constructed. Later on, continues R. Weinfeld, the Sages realized from Zechariah 12:12 that they are authorized to
define the parameters of the Halakhah le-Mosheh mi-Sinai by adding the requirement of a partition, if that is what is
deemed necessary by the Sages. Once legislated by the Sages, the partition itself is encompassed within the
Halakhah le-Mosheh mi-Sinai, and so the Halakhah le-Mosheh mi-Sinai thenceforth necessitated a balcony.
With all due reverence to R. Weinfeld, it seems to this writer that his analysis while analogous to that of
this writer is not compelling. Since there is a verse in the Written Torah which governs the worshippers behaviour
in the Sanctuary, viz. Leviticus 19:30, there is no need to claim that the gemara in Sukkah 51b refers to a Halakhah
le-Mosheh mi-Sinai. Rather, it appears more intuitive and straightforward to submit that the gemara is elucidating
the mitzvah de-Oraita of Leviticus 19:30, on the basis of a gilui milta from Zechariah 12:12, as explained supra,
note 4. Namely, Zechariah 12:12 teaches that a eulogy is only authentically heartfelt when the appropriate emotion
of contrition is achieved throughout the audience by stationing ladies and gentlemen separately. And this, in turn,
informs us how contrition is to be achieved in the Sanctuary, as commanded by Leviticus 19:30. In any event, R.
Weinfelds thesis will be further discussed in Section F of this essay.}
Additionally, one might perhaps further resolve R. Bleichs objection by citing the gemara in Shabbat 130a
which records how the citizens of Rabbi Eliezers town would routinely biblically desecrate the Sabbath in order to
effectuate the preparatory steps for a circumcision. Moreover, these citizens were greatly rewarded from Heaven for
their diligence in this matter. Yet, it is entirely clear that the halakhah does not follow Rabbi Eliezer, and that his
town citizens were actually liable for inexcusable biblical desecration of the Sabbath. Why, then, were they
rewarded? Evidently, it is because in their time and place, the authoritative rabbinic scholar had ruled based on the
canons of halakhic decision-making of the Oral Torah that they should indeed desecrate the Sabbath. Although
this was subsequently discovered not to be the normative halakhah for eternity (since Rabbi Eliezers opinion is
actually disputed by Rabbi Akiva, whom the codification follows), in no way does this detract from the greatness of
Rabbi Eliezers townspeople, who acted righteously in good conscience based on the rabbinic guidance they had
received. Arguably, then, we see from the gemara in Shabbat 130a that makom hinichu li avotai le-hitgader bo
can indeed serve to exonerate the actions of an entire society that was unaware of a biblical prohibition.
However, perhaps one might counterargue that it is impossible to extrapolate from a single city (as was the
case in Shabbat 130a) to the entire community of Israel (as was the case in the Temple before the balcony was

constructed). In other words, perhaps an entire city might be righteous and at the same time might have behaved in a
manner that is subsequently recognized to be halakhically unlawful since, at the time, it was following its supreme
halakhic authority (such as the saintly genius Rabbi Eliezer), but the same cannot be true for the entire People of
Israel. At first glance, such a counterargument is supported by the sentiments expressed by Iggerot Mosheh, Yoreh
Deah II, no. 146 (paragraph that begins with the words u-mah she-kevod torato ha-rav dan lehakel), where R.
Moshe Feinstein declares that it is obvious that there is no requirement to employ a microscope to certify the kashrut
of drinking water, since all previous generations of Jews drank water in good conscience without the benefit of a
microscope, and it is inconceivable that those righteous individuals be retroactively incriminated. R. Feinstein does
not recognize the possibility that perhaps those previous generations of Jews were following their halakhic
authorities (analogous to Rabbi Eliezer) who have now been overruled by the present halakhic authorities (who,
possessing microscopes, are better informed than the halakhic authorities of yesteryear). Even so, it seems to this
writer that the topic of the microscope is altogether distinct from the question of the balcony in the Temple, since the
invention of the microscope did not offer any new halakhic insight that was previously unknown. The invention of
the microscope simply brought to light new scientific information, which in turn prompted the fundamental question
of whether Halakhah takes cognizance of subclinical phenomena. That question has been answered by the poskim
(including R. Feinstein) in the nugatory, as per the sources referenced by R. J. David Bleich, Bioethical Dilemmas II
(Targum Press, 2006), pp. 211-215. Furthermore, the area of prohibited foodstuffs may be unique in the sense that
Tosafot to Chullin 5b (s.v. tzaddikim atzman lo kol sheken) posit that there is divine protection to prevent the
righteous from ever consuming prohibited creatures, but that no such guarantee governs other prohibitions.
Accordingly, it is hypothetically possible that (from our vantage point today) the entire righteous community of
Israel inadvertently transgressed Leviticus 19:30 when it assembled in the Temple for Hakhel before the balcony
was constructed, which was perfectly acceptable for that time because at that time the supreme halakhic authorities
were telling Jews that such conduct is acceptable, similar to the directives Rabbi Eliezer offered his townspeople.
[Cf., however, the Arukh la-Ner to Yevamot 99b, who challenges Tosafots limitation of the protection that is
afforded to the righteous to the realm of forbidden foodstuffs. {See also Beit Yosef to Choshen Mishpat no. 388,
who cites a responsum of the Rashba in which the Rashba dismisses as an absurdity the contention that pious sages
of the mishnah could have been guilty of a transgression in assisting a Noahide government to impose criminal
justice. Arguably, Rashbas comments might be construed to contradict Tosafot and support Arukh la-Ner, although
this is not entirely clear. For analysis of this Rashba, see R. J. David Bleich, Be-Netivot ha-Halakhah I (KTAV
Publishing, 1996), pp. 85-105.} According to the Arukh la-Ner, then, it should have been impossible for the entire
righteous community of Israel to ever transgress Leviticus 19:30 in the Temple on the occasion of Hakhel, even
before the balcony was constructed. On the countervailing side of the spectrum, cf. pp. 95-96 of Tradition 38:4
(Winter 2004), where R. J. David Bleich submits that the infallibility of the righteous has never been employed to
actually resolve halakhic questions. Nevertheless, it seems to this student that the gemara itself does apparently
invoke the principle of infallibility of the righteous (which Tosafot limit to the culinary sphere) in a practical
halakhic context. {In the more recent republication of that material appearing in his Contemporary Halakhic
Problems VI (KTAV Publishing, 2012), R. Bleich appears to acknowledge this last refutation, since R. Bleich adds
the new claim that the infallibility of the righteous (of which the gemara in Chullin 5b speaks) is limited to the era
of the mishnah, but does not apply to subsequent eras.}
R. Feinstein subsequently reiterates and strengthens his voucher for the infallibility of the entire House
of Israel in Iggerot Mosheh, Orach Chaim IV, no. 17. Addressing the calculation of the date to commence the
recitation of ve-ten tal u-matar in the Diaspora, R. Feinstein declares that something which all Israel has practiced,
we are obligated to follow them, even if one believes that it is in error, for he must know that Klal Yisrael act
according to the law. Since this responsum does not address the culinary realm, the same principle would prima
facie appear readily applicable to the manner in which the House of Israel assembled for Hakhel during the First
Temple era. However, one might still respond that like the question of microscopic creatures R. Feinsteins
interlocutor was prompted by scientific progress to beg the question. R. Feinstein may be answering that the
scientific progress under discussion does not offer any halakhic insight that was previously unknown, and thus the
practice of ve-ten tal u-matar must remain the same. However, in the case of Sukkah 51b-52a, where a new halakhic
insight was discovered on the basis of Zechariah 12:12, perhaps it is possible to claim in retrospect that the entire
House of Israel was in violation of a mitzvah de-Oraita until now, but was all the same entirely righteous because it
was following its halakhic authorities, just like the townspeople of Rabbi Eliezer in Shabbat 130a.
[I am grateful to R. Yisrael Taplin and R. Zalman Tropper for bringing this latest responsum of R.
Feinstein to my attention on p. 65 of their The Date Line in Halacha (Lakewood, 2002). With all due reverence
manifest before those distinguished scholars, they read more into R. Feinsteins responsum than it actually contains.
The authors claim that R. Feinsteins responsum authorizes the Australian Jewish community to observe the Sabbath

10

In an impressive discovery, R. Feinsteins position is strengthened by R. Efraim

Greenblatt in the latters Shut Rivevot Efrayim V, no. 601. R. Greenblatt cites R. Yosef Engels
Gilyonei Ha-Shas commentary to Kiddushin 52b, who in turn employs the Jerusalem Talmud,
Maaser Sheni 5:3, to demonstrate that the obligation for a partition in the Temple is actually
biblical in nature. There, the Yerushalmi asks that according to the opinion that the first tithe
(maaser rishon) may be given to a kohen as well as a levi how does one understand the verse
you shall eat it in any place, you and your houses (Numbers 18:31), when after all a kohen
cannot enter a cemetery. [If the verse was speaking only to a levi, it would be understandable,
since a levi may indeed permissibly enter a cemetery.] The Yerushalmi answers that the phrase
any place means any place in the Temple courtyard. The Yerushalmi immediately protests
that this exegesis cannot be, for the verse continues you and your houses, implying that
gentlemen and ladies will eat the maaser rishon together in the same venue, and yet gentlemen
and ladies cannot possibly congregate together in the Temple courtyard. The implication of this
passage in the Yerushalmi is that a partition between ladies and gentlemen in the Temple is a
matter of Torah law.
Nevertheless, one may counter that the Yerushalmi in Maaser Sheni only demonstrates
that there is a mitzvah de-Oraita for the ladies and gentlemen to be positioned in distinct areas of
the Sanctuary, but not necessarily that there is any biblical requirement for a dividing partition
between them. Indeed, by comparison, in his responsum regarding synagogue architecture, R.
Abraham Isaac Hakohen Kook (Shut Orach Mishpat no. 35) speaks of a mitzvah de-Oraita for
ladies and gentlemen to be situated in separate areas of the synagogue, but R. Kook is silent on
the subject of whether a dividing partition is biblically required in the synagogue (or whether it is
even required altogether). A separate area might be defined as the population of ladies and the
population of gentlemen congregating in distinct areas, without any wall intervening. Indeed, to
that effect, it is actually the explicit position of R. Joseph Ber Soloveitchik that separation of
ladies and gentlemen during synagogue prayers is required by virtue of a mitzvah de-Oraita,
whereas the existence of an intervening partition is required by virtue of a mitzvah de-

only on Saturday and to ignore the countervailing view among the poskim that Sabbath in those parts of Australia
more than ninety degrees of longitude east of Jerusalem may actually be on Sunday given the infallibility of the
Klal Yisrael canonized by R. Feinstein. In this students opinion, such a reading of R. Feinsteins responsum is
hyperbolic. R. Feinstein speaks only of a practice which is explicitly ordained and finalized by the Talmud, and
which has been universally practiced by the entire House of Israel (such as the date for commencing ve-ten tal umatar). That is simply not the case in the context of Australian Jewrys choice of which day to keep as the Sabbath.
The Talmud is neither explicit about the location of the international dateline, nor is there a universally accepted
practice in Klal Yisrael regarding how to behave in Australia. {For further discussion, see the article co-authored by
R. Moshe Ashen and this student in Beit Yitzchak XXXIX (Yeshiva University, 2007), pp. 369ff. Although R. J.
David Bleich, Bircas Hachammah (Mesorah Publications, 2009) ostensibly identifies times for birkat ha-chammah
for the Australian cities of Sydney and Melbourne, in an e-mail this student was privileged to receive on Jan. 14,
2010, R. Bleich confirmed that those times were only included in the book for illustrative purposes, but that Sydney
and Melbourne are indeed in a halakhic state of doubt regarding their date of the week.} Accordingly, it is entirely
possible that those Australian Jews who have exclusively observed the Sabbath on Saturday have been in violation
of the Sabbath until now, but in any event they have been all the same entirely righteous because they were
following their halakhic authorities, just like the townspeople of Rabbi Eliezer in Shabbat 130a.]
In any event, even if one does counterargue that one cannot extrapolate from a city to the entire community
of Israel, and therefore it is impossible to say that the entire People of Israel was acting unlawfully when it
assembled for Hakhel before the balcony was constructed, one could still rely on the first solution presented in this
footnote. Namely, perhaps Leviticus 19:30 is a mitzvah de-Oraita whose parameters are assigned to the Sages.

11

rabbanan.10 The Yerushalmi in Maaser Sheni could thus be plausibly interpreted as supporting
R. Soloveitchiks conclusion as distinct from R. Feinsteins.11 12
10

R. Soloveitchiks responsum on the matter was first addressed as a personal letter to R. Benjamin Lapidus
(spiritual leader of Congregation Beth Jacob in Dayton, Ohio) on June 10, 1954. The letter is published in the
journal Conservative Judaism (autumn 1956, pp. 50-51). The halakhic propriety of citation of material from this
journal emerges from the analysis of R. Moshe Feinstein in his Iggerot Mosheh, Yoreh Deah II, no. 111, since the
material therein is required lehavin ule-horot, i.e., to help arrive at an Orthodox halakhic determination, in the
sense that it is the only journal in which R. Soloveitchiks ruling was actually published in its pristine form.
R. Soloveitchiks responsum is reprinted as An Open Letter by Baruch Litvin in his The Sanctity of the
Synagogue (Spero Foundation, 1959), pp. 139-141. However, Dr. Alan Yuter correctly observes in his contribution
to the journal Judaism (spring 1979, p. 149) that the responsum is slightly modified in the reprint. The difference
between the two versions will be discussed in the immediately following note.
11

However, in his responsum, R. Soloveitchik never acknowledges the countervailing ruling of R. Feinstein, and
thus he is unable or unwilling to respond to R. Feinsteins proofs that the synagogue partition constitutes a mitzvah
de-Oraita. Presumably, R. Soloveitchik would respond with the same rejoinders that R. Schwarz, R. Silber and R.
Henkin advance, as described earlier in this section. R. Soloveitchik does write as follows:
Separation has its origin in the Bible itself, whereas the requirement of a mechitzah must be attributed to a
rabbinic ordinance. The biblical passage from which the Talmud derives the interdiction against mixed pews and
also the Pentateuchic injunction lo yireh bikha ervat davar [1] deal with separation only (mishpachot mishpachot
[2]). There is no mention, however, of segregation. The latter has been introduced, in accordance with the old
maxim of vaassu seyag latorah And make a fence around the Law
Note [1] leads to the citation Deut. 23.16.
Note [2] leads to the citation Zech. 12.12; See Sukkah 51b.
Actually, note [1] represents a slight typographical error, since the relevant verse is Deuteronomy 23:15. In
any event, it is unknown to this writer whether those notes were authored by R. Soloveitchik himself or by the editor
of the journal in which the responsum appears.
{Incidentally, another anomaly appearing in the published form of the letter in Conservative Judaism is that
it is dated (vis--vis the Jewish calendar) as 10 Sivan, 5712. However, that information is presumably mistaken
because the secular date on which it was written (as referenced in the previous note) is June 10, 1954, which actually
corresponds to 9 Sivan, 5714 on the Jewish calendar. One assumes that the secular date on the letter is accurate,
based on the context of the discussions of that particular volume of Conservative Judaism, all of which took place in
1954 (though the journal itself was published in 1956). Again, the reason the Conservative Judaism journal may be
permissibly cited in this essay is le-havin u-le-horot, as per the immediately previous note.}
Evidently, R. Soloveitchik relies on the exegesis of the Midrash that will be discussed infra, note 45, which
derives from Deuteronomy 23:15 a scriptural obligation for a separation between ladies and gentlemen during public
prayer. Apparently, although the latter half of the Midrash could be interpreted as referring to a partition, R.
Soloveitchik does not share that interpretation, or alternatively regards that interpretation as a mere allusion to a
rabbinic ordinance (asmakhta).
As referenced in the previous note, R. Soloveitchiks original responsum was reprinted by Baruch Litvin in
a slightly changed form. The reprinted version reads as follows:
Separation has its origin in the Bible itself, whereas the requirement of a mechitzah must be attributed to a
Rabbinic ordinance. The Biblical passage from which the Talmud derives the interdiction against mixed pews
[Zechariah 12:12 in Sukkah 51b], and also the Pentateuchic injunction, Let Him see no unseemly thing in thee
(Deuteronomy 23:15), deal with separation only. There is no mention, however, of segregation. The latter has been
introduced in accordance with the old maxim, vaassu seyag latorah, Make a fence around the Law (Aboth 1,
1)
In this reprinted form, R. Soloveitchik definitively advocates that the source of the mitzvah de-Oraita for
separation is not only Deuteronomy 23:15 but also the gemara in Sukkah 51b. Accordingly, this reprinted form of R.
Soloveitchiks words means that R. Soloveitchik fully agrees with R. Feinstein that the sanctity of the synagogue is
equivalent to that of the Temple vis--vis Leviticus 19:30. Like R. Feinstein, R. Soloveitchik posits that whatever
the gemara in Sukkah 51b prescribes on a de-Oraita level for the Temple also applies on a de-Oraita level for the
synagogue, except that [unlike R. Feinstein] he understands the gemara in Sukkah as only demanding with respect
to the de-Oraita level that ladies and gentlemen be separated in the Temple, with no concomitant demand for
segregation. Whatever demand for segregation that exists is rabbinic in origin, and R. Feinsteins proofs to the
contrary would apparently have to be explained in the manner of R. Schwarz and R. Henkin.

12

Actually, if the notes published in the original responsum were written by R. Soloveitchik himself, the case
could be made that even the original responsum might be relying on the gemara in Sukkah 51b. But perhaps that is
not so [since the notes only direct the reader to see Sukkah 51b], and perhaps R. Soloveitchiks reference to
mishpachot mishpachot is rhetorical in nature, rather than a literal invocation of Sukkah 51b. Admittedly, whether or
not R. Soloveitchik wrote those notes is unknown to this writer, as is the question of whether or not R. Soloveitchik
authorized the minor changes in the reprinted version.
[See also R. Eliezer Silver, Anfei Erez I, s.v. ein ishah ba-azarah, who wites that there is perhaps an issur
de-Oraita which commands the separation of ladies and gentlemen in the synagogue. R. Silver bases this upon (a)
the Yerushalmi Maaser Sheni 5:3 as well as the gemara in Kiddushin 52b (-a source already having been invoked
by the Mor u-Ketziah cited supra, note 1), which both regard it as contrary to common human practice and etiquette
for ladies and gentlemen to occupy the same Temple courtyard; combined with (b) Rashi to Zevachim 14a (s.v.
sheee efshar le-vatlah) and Tosafot to Zevachim 63a (s.v. she-ken matzinu be-siluk bazikhin) who establish that
conduct which is contrary to human practice and etiquette is biblically forbidden in the Temple. Ergo, concludes R.
Silver, if it is contrary to human practice and etiquette for ladies and gentlemen to be simulatenously present in the
Temple, such an arrangement must be biblically prohibited. [R. Silver does not explain which biblical prohibition is
involved, but it seems evident he is referring to Leviticus 19:30.] As such, R. Silver appears to be expressing the
safek possibility that perhaps the sanctity of the synagogue (at least when tefillah be-tzibbur occurs) is equivalent to
that of the Temple, and therefore that perhaps the separation of ladies and gentlemen is biblically required in the
synagogue. However, R. Silver does not address whether the same is true of the existence of a partition.]
Quite apart from the above analysis, it is abundantly clear from the balance of R. Soloveitchiks responsum
[which is identical in the both the original and reprinted versions] that R. Soloveitchik rules the separation of ladies
and gentlemen to be mandatory by virtue of the distinction it creates between a Jewish house of worship and the
places of worship associated with foreign religions. Accordingly, an obvious mitzvah de-Oraita that may be invoked
to explain the need for separation [without a concomitant need for segregation] would be Leviticus 18:3, i.e., the
interdiction against Jews imitating the social practices of foreign religions. That verse is interpreted by Rambam,
Hilkhot Avodat Kokhavim 11:1, as prohibiting Jews from constructing places of Jewish assemblage which mimic
those of Noahides. Indeed, writing even before R. Soloveitchik, in a responsum dated 19 Adar II, 5706, R. Yosef
Zvi Dushinsky, Shut Maharitz Dushinsky I, no. 19, explicitly rules that the congregating of ladies and gentlemen
within the same synagogue sactuary violates Leviticus 18:3, pursuant to the codification of Rambam in Hilkhot
Avodat Kokhavim 11:1. Likewise, in a responsum dated Elul 5712, R. Menachem Mendel Kasher, Divrei Menachem
I, no. 35, explicitly rules that the congregating of ladies and gentlemen within the same synagogue sanctuary
violates Leviticus 18:3. Likewise, R. Abraham Weinfeld, Shut Lev Avraham no. 135 explicitly rules (paragraph on
p. 233 that begins ulam) rules that the congregating of ladies and gentlemen within the same synagogue sanctuary
violates Leviticus 18:3 (-in addition to violating what he claims is a Halakhah le-Mosheh mi-Sinai demanding
separation between ladies and gentlemen at all venues, as will be discussed in Section F of this essay).
This might also explain a cryptic letter addressed by R. Moshe Feinstein to Baruch Litvin that is published
in the latters The Sanctity of the Synagogue, p. 19 of the Hebrew appendix. R. Feinstein emphasizes his opinion that
according to Torah law separation without segregation is insufficient. However, R. Feinstein adds that separation
without segregation transgresses a single mitzvah de-Oraita of Leviticus 19:30, whereas the total lack of separation
transgresses multiple biblical interdictions (kamah issurim yesh sham). R. Feinstein never identifies precisely what
those multiple biblical transgressions are (beyond Leviticus 19:30). [I am grateful to R. J. David Bleich for bringing
this source to my attention.] True to form, this point is reiterated in Iggerot Mosheh, Orach Chaim I, no. 44, where
R. Feinstein submits that although separation without segregation is itself biblically prohibited the total lack of
separation is even more seriously prohibited. Again, R. Feinstein does not elaborate why.
Based on the above analysis of R. Soloveitchiks responsum (confirmed by R. Dushinskys, R. Kashers
and R. Weinfelds respective responsa), one could posit that the additional transgression envisaged by R. Feinstein
[when there is no separation altogether] would be Leviticus 18:3. Moreover [or alternatively], perhaps R. Feinstein
shared R. Soloveitchiks understanding of the Midrash to Deuteronomy 23:15 [viz., that it demands separation
though not segregation], such that Deuteronomy 23:15 would also represent an additional transgression that R.
Feinstein envisaged. Furthermore, a careful examination of the aforementioned passage in the Rambam reveals that
the prohibition of Jews imitating the social practices of foreign religions represents the violation of not only
Leviticus 18:3, but also Leviticus 20:23 and 20:26, as well as Deuteronomy 12:30. Accordingly, what R. Feinstein
may have meant in his letter to Baruch Litvin is that a synagogue which features separation without segregation
violates a single prohibition of Leviticus 19:30, whereas a synagogue which features the lack of separation
altogether transgresses the six prohibitions of Leviticus 18:3, 19:30, 20:23, 20:26, and Deuteronomy 12:30 and
23:15.

13

However, there is a slight lack of apparent symmetry in application here, since the Rambam only speaks of
the prohibition upon the act of building, and not necessarily the act of congregating within the already built
synagogue. Moreover, the Rambam does not single out synagogues; rather, any building designated for public
gathering must be built separately from the manner of Noahides. As such, it would emerge from the Rambam that
not just synagogues, but all buildings built for Jewish assemblies would have to feature separation! [Indeed, there
are some authorities who actually advance such a claim as a matter of halakhah le-maaseh. See, for example, R.
Israel David Harfenes, Shut Va-Yevarekh David, no. 121. But this does not appear to be the opinion of R. Moshe
Feinstein who, in his Iggerot Mosheh, Orach Chaim I, no. 41, permits orchestrating a wedding feast without a
separation between ladies and gentlemen. In any event, the question of separation at events other than public prayer
is beyond the scope of this essay (-though it will be tangentially addressed as a matter of necessity in Section F of
this essay. Regarding the opinion of R. Feinstein in particular, see infra, notes 74 and 75.)]
To some extent, this lack of apparent symmetry in application is itself apparently addressed by R. Moshe
Schick, Shut Maharam Shik, Orach Chaim no. 71 (-written when R. Dushinsky was a one-year-old child, and
obviously long before R. Kasher, R. Weinfeld, R. Feinstein or R. Soloveitchik were even born). In this responsum,
R. Schik does not address mixed pews per se, but he does discuss other changes orchestrated in a synagogue which
in his opinion cause the synagogue to resemble an institution belonging to the nations of the world. [The specific
changes to which he refers are placement of the bimah at the front of the synagogue and employment of a choir
whose singers are dressed identically to the choirs of the nations of the world.] R. Schik forbids such changes as the
violation of multiple transgressions, pursuant to Rambam, Hilkhot Avodat Kokhavim 11:1. Interestingly, R. Schik
explains Rambam to mean that only those who orchestrate [the changes], who ordain [the changes] and who want
[the changes] (ha-osin u-metaknin ve-rotzin bahen) violate the multiple transgressions. [Although R. Schik does
not explain himself, his conclusion presumably flows from the fact that Rambam focuses only on the act of building
as distinct from the act of congregating.] By contradistinction, continues R. Schik, one who prays there innocently
because he has no other synagogue or because of some other reason does not violate the biblical trasngressions.
Still, continues R. Schik, it is forbidden for any Jew to attend prayer services there because of the concept of nitpal
le-ovrei aveirah [serving as an adjunct to transgressors] presented by the mishnah in Makkot 5b, as well as the
concept of be-rov am hadrat Melekh [the presence of more spectators at a mitzvah enhances the value of the
mitzvah] presented by the gemara in Yoma 70a. R. Schik infers from the latter concept that serving as a spectator at
a transgression itself constitutes a transgression. R. Schik further paraphrases Rashi to Leviticus 26:8 [who writes
that one cannot compare a small number of people who fulfill the Torah to a large number of people who fulfill the
Torah] to the effect that every additional spectator at a transgression is himself transgressing. R. Schik adds that
this sevara is de-Oraita. [See infra, note 12, for an explanation of when a sevara is de-Oraita.]
In any event, the supposition that the congregating of ladies and gentlemen together in the same sanctuary
for prayer violates Levitivus 18:3 (as explicitly ruled by R. Dushinsky, R. Kasher and R. Weinfeld, and as implicitly
indicated by R. Soloveitchik and possibly also by R. Feinstein) is ostensibly confirmed by R. Mordechai Willig in a
lecture he delivered on Nov. 27, 2010. There, recorded at
<http://www.yutorah.org/lectures/lecture.cfm/753159/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#3:_Tefilah
> (at 53:25-54:20 into the lecture), R. Willig testifies that R. Soloveitchik wrote to prohibit a Jew to attend a public
prayer service where ladies and gentlemen congregate together, even under force majeure. The reason given for this
is that the practice derives from foreign religions and thus would represent (from a Jewish perspective) abizraihu deavodah zarah, i.e. the ancillary adoption of foreign religions, which is forbidden to a Jew even under force majeure,
pursuant to a Jews duty to sanctify the Name of Heaven. The prohibition involved evidently derives from Leviticus
18:3. For an elucidation of under what circumstances the prohibition bespoken by Leviticus 18:3 constitutes
abizraihu de-avodah zarah, see Appendix B of this essay.
[Cf. R. Willigs subsequent lecture on Dec. 11, 2010, which appears somewhat equivocal on this point.
There, recorded at
<http://www.yutorah.org/lectures/lecture.cfm/754168/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#4__Kerias_HaTorah> (at 19:15-20:10 into the lecture), R. Willig repeats R. Soloveitchiks ruling that a Jew must
forfeit his life rather than participate in a public prayer service where ladies and gentlemen congregate together. This
time, however, R. Willig justifies the ruling by explaining that the relevant interdiction is one of abizraihu deavodah zarah slash gilui arayot, as the case may be. Thus, R. Willig appears uncertain whether the prohibition to
which R. Soloveitchik refers is on account of Leviticus 18:3 or Deuteronomy 23:15, (or perhaps both).]
Actually, it seems to this student that with all due reverence manifest before R. Willig R. Willigs
quotation of R. Soloveitchik is imprecise. R. Willig presumably refers to R. Soloveitchiks article printed in The
Sanctity of the Synagogue entitled Message to a Rabbinic Convention (pp. 109-114), where R. Soloveitchik
declares his opinion that the principle of arakta de-mesana [at a time of ecclesiastic oppression through

14

governmental decree, even for a minor custom, such as one involving changing a shoelace, one must heroically
refuse to transgress even under force majeure] bespoken by the gemara in Sanhedrin 74b applies not only to
government oppression, but also to popular social movements that are dominated by a false philosophy. Thus, R.
Soloveitchik appears to be indicating that because at least at the time he wrote that composition separate seating
in the synagogue had become unpopular, therefore it behoves all Jews to refuse even under force majeure to
deviate from the obligation of separate seating. But this is markedly different than claiming (as R. Willig does in his
name) that mixed seating constitutes abizraihu de-avodah zarah, which is eternally prohibited even under force
majeure.
Nevertheless, it seems to this student that even though R. Willig is imprecise in quoting R. Soloveitchik, R.
Willig might possibly also be correct that mixed pews during prayer are indeed prohibited as the emulation of
foreign religions, and therefore there is indeed a credible basis to forbid mixed pews even under force majeure,
pursuant to the analysis presented in Appendix B of this essay. Thus, R. Willig may be imprecise but
paradoxically may also be accurate.
As an allusion to the possible accuracy of R. Willigs conclusion, it is remarkable that in the same
paragraph that R. Soloveitchik invokes arakta de-mesana R. Soloveitchik apparently compares mixed pews to the
actions of the Third Reich [sic!]. He writes as follows (p. 111): If the ethical norm, Thou shalt not kill (Exodus
20:13), has not lost its validity during the days of extermination camps and gas chambers, when millions of people
were engaged in ruthless murder, but on the contrary, has been impregnated with deeper meaning and significance,
then every Halachic maxim assumes greater import in times of widespread disregard and unconcern. This
comparison is also suggested by R. Soloveitchiks next essay (also published in The Sanctity of the Synagogue, pp.
114-118), where R. Soloveitchik writes We have but abandoned the synagogue, much as the French abandoned
Paris before the Germans fired the first shot. This comparison is then advanced for the third time in R.
Soloveitchiks subsequent essay An Open Letter (op. cit.), where R. Soloveitchik concludes A transcendemtal
tenet is binding regardless of its unpopularitywith the multitudes. Was the commandment against murder declared
null and void while the Nazi hordes were practicing genocide? Since homicide is prohibited under force majeure,
one might also read R. Soloveitchik as implicitly offering the same halakhic status to public prayer with mixed
pews, which in turn might be explained by R. Willigs identification of mixed pews as constituting abizraihu deavodah zarah.
As a further allusion to the possible accuracy of R. Willigs conclusion, it is remarkable that precisely one
paragraph before R. Soloveitchik invokes arakta de-mesana R. Soloveitchik declares that No pretext, excuse, ad
hoc formula, missionary complex, or unfounded fear of losing our foothold in the Jewish community, can justify
acceptance of the [foreign religion-transformed] synagogue as a bona fide Jewish religious institution. [N.B. Due to
considerations of Exodus 23:13, this student has omitted a term from R. Soloveitchiks citation and replaced it with
the bracketed expression foreign religion-transformed.] Arguably, R. Soloveitchiks words could be interpreted to
mean that mixed pews represents abizraihu de-avodah zarah.
Admittedly, however, one responsum of R. Joseph Elijah Henkin might be interpreted to disagree with R.
Willigs conclusion. See infra, note 49.
12

At the same time, the counterposition to R. Soloveitchik is that of R. Joseph Mashash, referenced earlier in the
text. [I am grateful to Shimi Cohen for bringing this valuable source to my attention. The source in question is
actually a posthumously published collection of R. Mashashs letters.]
R. Mashash elliptically invokes sevara (logic) alone as proof that a Torah obligation exists to require a
synagogue partition. As a preliminary legal step, R. Mashash demonstrates that a compelling sevara can be just as
authoritative in establishing a biblical law as a verse itself, as per the gemara in Ketubot 22a, Bava Kamma 46b and
Niddah 25a. [R. Mashash also parenthetically invites his interlocutor to consult Tosafot in Shevuot 22b (s.v. ibaeit
eima kra) for further elucidation.] Then R. Mashash axiomatically assumes (without offering substantiating
evidence) that a synagogue partition must serve as a visual barrier [-which, as will be discussed infra in Section C of
this essay, is actually a matter of dispute among the poskim], and continues that since in the absence of a visual
barrier it is inevitable that congregants will see one another, it is logical that the Torah demands such a barrier. To
say the least, R. Mashashs words are cryptic and necessitate elaboration.
It seems to this writer that R. Mashash can best be understood as implicitly endorsing R. Moshe Feinsteins
analysis of the gemara in Sukkah 51b-52a, as explored throughout this section of the essay. But R. Mashash noticed
that R. Feinstein (and for that matter the gemara) never explained how the Sages knew that Leviticus 19:30 requires
a barrier to interpose between ladies and gentlemen in the Temple. Would it not suffice for the ladies and gentlemen
to be positioned separately, without an intervening barrier, for Leviticus 19:30 to be fulfilled? By what right did the
Sages override the original plans of the Temple? R. Mashash answers this question as follows. Once the Sages

15

realized from Zechariah 12:12 that a separation between ladies and gentlemen is needed in order to achieve
reverence (-which, in turn, triggers Leviticus 19:30), the Sages (as interpreted by R. Mashash) understood that the
purpose of such a separation is to prevent sight. And since it is logical that without a visual barrier, it is inevitable
that worshippers in the Temple will see one another, sevara dictates that Zechariah 12:12 not only reveals the
necessity for a separation but also for an barrier interposing between the ladies and gentlemen. And the product of
this sevara is encompassed within the mitzvah de-Oraita of Leviticus 19:30.
The sophistication of R. Mashashs remark becomes better appreciated by an examination of the Tosafot
that R. Mashash parenthetically references. Tosafot inquire why on some occasions the gemara is willing to rely
exclusively on a sevara, whereas on others the sevara is supplemented by scriptural support. Tosafot answer that
not all sevara arguments are created equal. A very compelling sevara (such as the proposition presented in Ketubot
22a, Bava Kamma 46b or Niddah 25a) is so evident that scriptural support would be entirely superfluous. A weaker
sevara (such as the proposition presented in Berakhot 4b, Yevamot 35b, Kiddushin 35b, Bava Batra 8b and idem.
9a, Avodah Zarah 34b, Sanhedrin 30a, Shevuot 22b, Zevachim 2a and idem. 7b, Menachot 13b and idem. 73b,
Chullin 118b and Temurah 30b) could not be entertained in the absence of scriptural support. R. Mashash is arguing
by backward design that it is so obvious, in the absence of a visual barrier gracing the Sanctuary, that sight will
inevitably occur [-which, in his understanding of the invocation of Zechariah 12:12 by the gemara, is incompatible
with reverence for the Sanctuary], that a compelling sevara alone dictates that a partition be built, which in turn
constitutes a mitzvah de-Oraita.
Actually, although R. Mashash effectuates a link between the synagogue partition being a visual barrier and
the synagogue partition being a mitzvah de-Oraita, and as will be seen in Section C of this essay R. Joel
Teitelbaum [who, as referenced earlier, equally diagnoses the synagogue partition as being a mitzvah de-Oraita] also
insists on a visual barrier, other poskim make no such association. Namely, as will be elucidated infra, note 30, R.
Yehudah Grunwald [who, as referenced earlier in the text, equally diagnoses the synagogue partition as being a
mitzvah de-Oraita] holds that a geographic barrier suffices. And, as will be further elucidated infra, note 34, R.
Moshe Feinstein [who, as discussed throughout this section, equally diagnoses the synagogue partition as being a
mitzvah de-Oraita] holds that a kinaesthetic barrier suffices. Obviously, neither of them can accept R. Mashashs
argument in its pristine form, but they might conceivably modify it as follows: Zechariah 12:12, as invoked by the
gemara, teaches that a mixture of ladies and gentlemen is incompatible with the reverence for the Sanctuary. And it
is so obvious that the purpose of this separation is to prevent an atmosphere of socialization, that a compelling
sevara alone dictates that a partition be built to reinforce the separation with segregation (-according to one opinion,
in order to create a geographic barrier, and according to the other opinion, in order to create a kinaesthetic barrier).
R. Soloveitchik, by contradistinction, might well agree with the sevara at hand, but would simply opine
that the sevara is a weak one, and therefore (pursuant to Tosafot in Shevuot 22b) hold that it cannot carry biblical
weight in the absence of a supporting verse. And since such a supporting verse does not exist, R. Soloveitchik
believes that the separation of ladies and gentlemen in the Temple might constitute a mitzvah de-Oraita, whereas
segregation constitutes a mitzvah de-rabbanan. And R. Soloveitchik transferred that information from the Temple to
the synagogue. [Or, alternatively, R. Soloveitchik may simply hold that nothing whatsoever can be proven from the
gemara in Sukkah 51b-52a in terms of establishing a biblical obligation in the synagogue because he might hold that
the sanctity of the synagogue is unrelated to that of the Temple, and therefore that the sole basis for separation in the
synagogue is from the Midrash on Deuteronomy 23:15. See supra, note 11, where two conflicting possibilities of
how to decipher R. Soloveitchiks equation on comparing the Temple to the synagogue are presented.]
An entirely alternate approach to the gemara in Sukkah 51b-52a is presented by R. Israel David Harfenes,
Shut Va-Yevarekh David, no. 121 (paragraph that begins with the words ela she-hayah makom le-vaal din lechalek), which addresses the very concern targeted by R. Mashash. R. Harfenes suggests that the Sages understood
that the gentlemen and ladies who are described by the prophet in Zechariah 12:12 as eulogizing must be eulogizing
consecutively and not simultaneously. This is because of the principle trei kalei lo mishtamei, i.e., competing
soundwaves interfere with one another and are not heard, as per the gemara in Rosh Hashanah 27a. If a lady were
speaking to an assembly of ladies and a gentlemen were speaking to an assembly of gentlemen at the same time, and
the two assemblies were positioned side by side (albeit in a non-overlapping manner), then neither of the eulogies
could be heard. The two speakers would drown each others sound! Thus, what Zechariah 12:12 really means is that
first the terrestrial area that the prophet envisions will be filled with gentlemen only, and one of the gentlemen will
deliver a eulogy before the assembled crowd. Once the speech is finished, all the gentlemen will leave the environs,
and only then will the terrestrial area be subsequently filled with ladies, upon which occasion one of the ladies will
deliver a eulogy before the assembled crowd. If one interprets Zechariah 12:12 in this manner, then it indeed
emerges that mere separation between ladies and gentlemen in the Temple would be insufficient in order to achieve
reverence. Rather, the only way to match the conditions of Zechariah 12:12 (when ladies and gentlemen both

16

Yet another approach to understanding the nature of the obligation of the Temple
partition is offered by R. Zvi Yanir in an oral lecture delivered at Yeshivat Har Etzion.13 The
Meiri, in his commentary on Sukkah 51b, emphasizes that the gallery constructed for the ladies
was a binyan arai" a temporary renovation which endured only for the Chol ha-Moed
Sukkot season each year. Accordingly, R. Yanir proposes the chiddush that the prohibition
against overriding the Temple blueprints is inapplicable in the case of temporary structures.
Therefore, there is no reason to think that the Temple partition constituted a mitzvah de-Oraita.
Actually, claims R. Yanir, it is a rabbinic mitzvah, and that which the gemara in Sukkah quotes a
verse from Zechariah is a mere asmakhta or allusive subterfuge behind which the Sages cloaked
their enactment.14
However, it seems clear to this author that R. Yanirs innovative and commendable
analysis, even if correct in encapsulating the true meaning of the Meiri, is certainly incompatible
with either Tosafot in Zevachim 33a or with the Rambam in Hilkhot Beit ha-Bechirah 5:9.
Tosafot explicitly write that it is only because of the verse in Zechariah that the Sages enjoyed
the authority to override the Temple blueprints. And the Rambam describes the ladys balcony as
having been maintained on a permanent basis in the Temple. Indeed, a similar position is
attributed to Rashi.15 [In other words, according to both Rashi and Rambam, once the Sages
decided on a Sukkot of a particular year to build the gallery, they left it there indefinitely. By
assemble simultaneously, as occurred at the Rejoicing of the Water Drawing) is to have separation plus segregation,
both being required as a mitzvah de-Oraita by virtue of Leviticus 19:30.
If R. Harfenes suggested approach to the gemara is accepted as reasonable, then one could explain R.
Soloveitchiks demurral in one of two ways: (a) Perhaps R. Soloveitchik agrees with R. Harfenes rendition of the
gemara, but holds that one cannot compare the sanctity of the synagogue to the sanctity of the Temple. (b) Perhaps
R. Soloveitchik disagrees with R. Harfenes rendition of the gemara, in which case even in the Temple there is no
biblical need for a partition.
As a completely alternate analytic possibility to explain the dispute pitting R. Soloveitchik vs. R. Mashash,
it seems to this writer that [- even if one should assume that the ladies and gentlemen envisioned by Zechariah 12:12
will be assembled simulatenously (unlike R. Harfenes approach above) -] one could suggest that it focuses upon the
very question of where the people will be eulogizing. R. Mashash may hold that the eulogy will occur outdoors.
Outdoors, no partition is required, whereas the equivalent of a mere separation outdoors is separation plus an
intervening partition when ladies and gentlemen are assembled indoors, as explained infra, note 45. By
contradistinction, R. Soloveitchik may hold that the eulogy envisioned by the prophet will occur indoors. And since
the prophet did not mention a partition, despite the fact that the eulogy described is an indoor event, R. Soloveitchik
holds that there is never a biblical need for a synagogue partition.
13

A transcript of that lecture is available at <http://www.etzion.org.il/vbm/archive/5-halak/22mehit.rtf>.

14

In R. Isaac Sveis analysis of the gemara in Sukkah 51b-52a [published on pp. 115-122 of Kitvei Rav Aizik I
(Kehot Publication Society, 1990)], R. Svei cites R. Chaim Elazar Shapiro on p. 229 of his Olat Tamid commentary
upon Tractate Tamid as inquiring why the gemara requires a verse to justify the construction of the ladies gallery,
when the gallery was purely temporary. R. Shapiro leaves the question unresolved, but in light of R. Yanirs
treatment of the Meiri presented in the text of this essay, it emerges that in fact according to the Meiri there
really is no need for any verse to justify the construction of the ladies gallery; Zechariah 12:12 is simply marshalled
by the gemara as an asmakhta.

15

R. Svei (op. cit.) and R. Chaim Schachnowitz (writing in the Ha-Pardes journal of June 1957, pp. 3-8) both
cogently elaborates upon Rashi to mean that part of the balcony structure remained all year long, whereas part of the
balcony structure was annually installed on the occasion of Sukkot, only to be disassembled after the Sukkot
festivities were complete. As such, even according to Rashi, the Sages did (to at least some extent) override the
Temple blueprints on a permanent basis. And all the more so is this true according to Rambam, who holds that the
entire balcony remained permanently all year long, and from one year to the next continuously.

17

contradistinction, the Raavad in his glosses to the Rambam, Hilkhot Avodat Kokhavim 6:10,
submits that the gallery was indeed temporary, like the Meiri.16] Thus, Rashi, Tosafot and
Rambam are all supportive of R. Feinsteins thesis, not to mention the Yerushalmi in Sukkah 5:2,
which explicitly terms the Temple partition a matter of Torah law.
As identified by R. Feinstein himself,17 a hurdle that his position must overcome is to
explain why if, as he submits, the Temple blueprints could only be overridden for the sake of
an unavoidable mitzvah de-Oraita did the Sages not simply limit attendance at the Rejoicing of
the Water Rejoicing to only ladies, or only gentlemen, or alternating one night for ladies and one
night for gentlemen. By what right the Sages invite both populations each and every night,
forcing them to resort to the construction of a balcony? R. Feinstein responds that the Sages
fortuitously realized that there is one occasion when the Torah absolutely demands that both
ladies and gentlemen materialize in the Sanctuary simultaneously, viz. for Hakhel, and thus the
Sages understood they have no choice but to construct a balcony, whereupon they were
concomitantly able to invite both ladies as well as gentlemen to celebrate at every night of the
Rejoicing of the Water Drawing.
Admittedly, R. Feinsteins solution is wholly incompatible with the alternate approach of
R. Yechiel Michal Tukachinsky in his Ir ha-Kodesh ve-ha-Mikdash IV, p. 103. Citing no
precedent, R. Tukachinksy assumes that there always was a separation between ladies and
gentlemen at Hakhel through the existence of a curtain/screen (vilon) that temporarily
intervened between the ladies and the gentlemen, but that the festive nature of the Rejoicing of
the Water Drawing rendered such a curtain inadequate and thereby necessitated the construction
of a balcony. If R. Tukachinsky is correct, then it becomes impossible for R. Feinstein and
company to account why ladies and gentlemen were simulatenously invited to every night of the
Rejoicing of the Water Drawing. Hakhel did not need the balcony since Hakhel already
featured a separation. Perforce, R. Tukatchinsky must hold that the Temple blueprints may be
changed even for a mitzvah de-rabbanan (so long as it is predicated upon a prophetic basis), a
countervailing position already outlined earlier in this section in the name of R. Schwarz.
Namely, since Isaiah 12:3 instructs you shall draw water with joy, which the gemara in
Sukkah 48b employs as the basis for the mitzvah of celebrating the Rejoicing of the Water
Drawing, the Sages were inspired to invite both ladies and gentlemen each night, and enjoying
the rabbinic authority (as bolstered by a prophetic verse) to do so the Sages changed the
Temple architecture to accommodate the diversity of the assembled celebrants.
Nevertheless, R. Tukachinskys assumption is itself contradicted by the logistical
evolution of the Rejoicing of the Water Drawing described by the gemara in Sukkah 51b: First
the ladies were in the external courtyard and the gentlemen were on the Temple Mount, then the
ladies were on the Temple Mount and the gentlemen were in the external courtyard, and then
finally the balcony was constructed. There is no report of a curtain within the external courtyard
having existed at any stage. In light of this consideration (and the fact that R. Tukachinsky cites
no precedent), it seems to this writer the plausibility of R. Feinsteins thesis remains credible.18
16

For further discussion of this dispute amongst the Rishonim, see the sources referenced in the Frankel edition of
the Rambam, Hilkhot Avodat Kokhavim 6:10.

17

Paragraph that begins with the words aval ee efshar lomar ken.

18

Actually, for a reason that requires several paragraphs of elaboration, the solution of R. Feinstein which assumes
that there is no choice but to orchestrate Hakhel in the external courtyard of the Temple, and therefore that this is
the real source of the authorization for the Sages to override the Temple architecture for the construction of the
balcony will apparently hinge upon a doubt expressed by the poskim regarding the precise venue for Hakhel.

18

It is, of course, the case that the gemara (Sotah 41b) and Rambam (Hilkhot Chagigah 3:3) identify the
venue for Hakhel as the Temples external courtyard [-which, accordingly, prima facie serves as a solid platform
for R. Feinsteins solution]. However, as noted by R. Shlomo Yosef Zevin, Le-Or ha-Halakhah (in the chapter on
Hakhel), there exists a question among the poskim as to the fungibility of this identification. The Tosefta (Sotah
7:8), in fact, records a dispute in this regard: An anonymous position first offered in the Tosefta (known as the tanna
kamma) places Hakhel in the courtyard (without specifying whether it is the internal courtyard or external
courtyard), whereas Rabbi Eliezer ben Yaakov demurs and places it on the Temple Mount.
R. Zevin proceeds to encyclopaedically illustrate two possible ways to decipher the Tosefta, as follows. (1)
The tanna kamma requires that Hakhel be effectuated in the internal courtyard, whereas R. Eliezer ben Yaakov
requires that Hakhel be performed on the Temple Mount, and the Temple Mount includes the external courtyard,
for the mishnah in Kelim 1:8 posits that on the biblical level the sanctity of the external courtyard is no greater
than that of the Temple Mount. [It is only on a rabbinic level that the external courtyard is endowed with superior
sanctity.] According to this interpretation, our gemara and the Rambam follow R. Eliezer ben Yaakov. (2) The
tanna kamma requires that Hakhel be specifically effectuated in the outer courtyard and nowhere else on the
Temple Mount (despite the fact that the mishnah in Kelim 1:8 equates the sanctity of the outer courtyard and the
Temple Mount on a biblical level), whereas R. Eliezer ben Yaakov allows that Hakhel be performed anywhere on
the Temple Mount. According to this interpretation, our gemara and the Rambam follow the tanna kamma. The
reason the tanna kamma would specifically insist on the outer courtyard (despite the fact that the sanctity of the
Temple Mount is just as great on the biblical level) can, in turn, be explained in one of three ways: (a) R. Elijah
David Rabinowitz-Teumim, in his Zekher la-Mikdash, suggests that because Deuteronomy 31:11 demands that
Hakhel be performed when the entirety of Israel comes to be seen [in pilgrimage] in the presence of Ha-Shem,
and since the mitzvah of pilgrimage must be accomplished on the three pilgrim festivals by Jews actually entering
the inner courtyard, therefore Hakhel must be performed in the outer courtyard which immediately adjoins the inner
courtyard, to the exclusion of any other site on the Temple Mount, which is too remote. According to R.
Rabinowitz-Teumim, then, the tanna kammas insistence upon the outer courtyard is a matter of biblical exegesis.
(b) R. Shlomo David Kahana, in his book entitled Hakhel, suggests that because Rashi to Bava Batra 14b (s.v. sefer
azarah) posits that the Torah scroll employed for the Hakhel ceremony is the original Torah scroll written by
Mosheh Rabbeinu which is stored in the Holy of Holies, and because it is rabbinically prohibited to unnecessarily
displace a Torah scroll from its headquarters (as reflected by the normative codification in Shulchan Arukh Orach
Chaim 135:14), therefore Hakhel had to be orchestrated in the outer courtyard (which is relatively close to the Inner
Sanctum) as distinct from the remaining Temple Mount. (c) The Minchat Chinukh (mitzvah no. 612) expresses
uncertainty that perhaps there is a Halakhah le-Mosheh mi-Sinai which requires that Hakhel be specifically
performed in the outer courtyard, as distinct from anywhere else. [Incidentally, the Minchat Chinukhs suggestion
appears analogous to the novel proposition of the Taz in his commentary to Shulchan Arukh Orach Chaim no. 668 to
the effect that the requirement for a platform (bimah) at the Hakhel event constitutes a Halakhah le-Mosheh miSinai.]
Accordingly, if one accepts interpretation (1) of the Tosefta, it would emerge that according to Torah law
the Hakhel event may be orchestrated anywhere on the Temple Mount, and R. Feinsteins solution is vapourized,
for according to R. Feinsteins very own analysis elsewhere in the same responsum it is actually permissible
anywhere else on the Temple Mount to tamper with the architecture even for a rabbinic mitzvah [as will be
explained in the immediately following paragraph]. Alternatively, even if one accepts interpretation (2) of the
Tosefta, but one follows the particular solution (b), it once again emerges that the insistence of placing Hakhel in
the external courtyard is within the ambit of rabbinic enactment alone, and so R. Feinsteins solution is equally
refuted. On the other hand, if one accepts interpretation (2) of the Tosefta and one pursues either solution (a) or (c),
then indeed it emerges that Torah law demands that Hakhel be consigned to the external courtyard, thereby
upholding the solution of R. Feinstein.
As becomes manifest from the above discussion, R. Zevin assumes regarding the mishnah in Kelim 1:8 that
the sanctity of the external courtyard is only rabbinically superior to that of the balance of the Temple Mount, and
hence one must seek either explanation (a), (b) or (c) to justify interpretation (2). [Cf. Shut Mishnat Yaavetz,
Orach Chaim no. 47, sec. 5, paragraph that begins with the words ve-yesh le-havi reayah, where R. Betzalel Zolty
also assumes that the sanctity of the external courtyard is only rabbinically superior to that of the remainder of the
Temple Mount.] However, it actually emerges from R. Feinsteins very own analysis elsewhere in Iggerot Mosheh,
Orach Chaim I, no. 39 that he differs from R. Zevin [and R. Zolty] on this point. In the paragraph that begins with
the words ve-taam ha-chiluk, R. Feinstein proposes that the sanctity of the external courtyard is biblically superior
to that of the remainder of the Temple Mount. In context, R. Feinstein seeks to justify his thesis that I Chronicles
28:19 applies only to the external courtyard and not to the rest of the Temple Mount. That thesis is, in turn,

19

Moreover, an entirely alternate satisfactory solution is offered to R. Feinsteins

conundrum [as to why the Rejoicing of the Water Drawing was not limited to either ladies or
gentlemen on any given night of Chol ha-Moed Sukkot] by R. Yitzchak Zvi Sofer, Mispar haSofer I (Jerusalem, 5721), no. 6. In a tour de force discovery, R. Sofer points to the Rambam in
his Sefer ha-Mitzvot, Mitzvat Aseh no. 54, who defines the mitzvah de-Oraita of rejoicing on
Yom Tov [-an obligation which includes ladies] as encompassing a duty to participate in the
dancing at the Rejoicing of the Water Drawing on Sukkot. Thus, given the fact that each day of
Chol ha-Moed Sukkot possesses its own obligation of rejoicing that devolves upon every Jewish
lady and gentleman, it becomes obvious that the Sages possessed no choice but to accommodate
the simultaneous presence of both gender populations on each night at the Rejoicing of the Water
Drawing. This solution will placate even R. Tukachinskys understanding of Hakhel, for the
solution is in fact completely independent of Hakhel. As such, R. Feinsteins proposition that a
synagogue partition be regarded as a mitzvah de-Oraita is all the more so vindicated.
Finally, R. Feinsteins ruling that a synagogue partition constitutes a mitzvah de-Oraita is
independently questioned by both Dr. David Golinkin and Dr. Alan Yuter on the grounds that the
entire construction of the balcony for the Rejoicing of the Water Drawing is termed a tikkun
gadol by the mishnah in Sukkah 51a and the accompanying gemara in Sukkah 51b. They
necessary to explain why the Soreg (a perimeter fence built on the Temple Mount, surrounding the Sanctuary) was
built in order to rabbinically permit carrying on the Sabbath (as described by the Rosh in his commentary to the
mishnah in Midot 2:3 and endorsed by Kessef Mishneh to Hilkhot Beit ha-Bechirah 5:3), when R. Feinstein holds
that one may not tamper with the Sanctuary architecture unless required for a mitzvah de-Oraita. Positing a
distinction in this regard between the external courtyard and the remainder of the Temple Mount effectively solves
the problem for R. Feinstein. Accordingly, R. Feinsteins position on this issue strengthens his own solution, for if
the sanctity of the external courtyard is biblically superior to that of rest of the Temple Mount, it is readily
understandable why Hakhel should be limited to the external courtyard. Upon further reflection, one could
counterargue that perhaps there is no coincidence here and one is actually witnessing a tautology in progress: The
fact that Hakhel should be limited to the external courtyard (if that is indeed the halakhah) ipso facto serves to
endow the external courtard with superior sanctity vis--vis the balance of the Temple Mount.
[Incidentally, it seems to this writer that R. Feinstein might not be entirely dependent on ascribing biblical
superiority to the external courtyard over the remainder of the Temple Mount, since the Rosh in Midot 2:3 suggests
an alternate reason for the existence of the Soreg, viz., for the aesthetic appearance of the Temple Mount. Perhaps
one could argue that this aesthetic enhancement is part and parcel of the original Temple blueprint that was
prophetically delivered in I Chronicles 28:19, and did not represent the subsequent orchestration of renovations. (See
Tosafot to Eruvin 2b, s.v. ela, who submit that the purpose of the doorframe of the Heikhal structure of the Temple
is purely for purposes of beautifying the edifice.) Thus, one may hypothesize that there would be no need for R.
Feinstein to posit any distinction between the sanctity of the external courtyard and that of the remainder of the
Temple Mount. Cf. the Tosfot Yom Tov in his commentary to Midot 2:3 who suggests an entirely novel reason for
the existence of the Soreg, viz., to demarcate the point to which entry by Noahides on the Temple Mount is
permitted. It is unclear to this writer if the Tosfot Yom Tovs approach is compatible with a similar hypothesis. One
way or the other, if the hypothesized case could be made that throughout the Temple Mount architectural changes
are prohibited unless needed to fulfill a mitzvah de-Oraita, then R. Feinstein could be equally comfortable whether
Hakhel must occur in the external courtyard by Torah law or whether it can occur anywhere on the Temple Mount
according to Torah law.
In any event, whether or not the hypothesized alternative solution regarding the Soreg is effective for R.
Feinstein, it certainly remains the case that R. Feinsteins solution is at least safek plausible, given the possibilities
outlined by R. Zevin that Hakhel might indeed be biblically consigned to the external courtyard. Moreover, as will
presently be noted in the text, a completely different solution which is both halakhically rigorous and which bears
no association with Hakhel is offered to R. Feinsteins question by the Mispar ha-Sofer as to why the Rejoicing of
the Water Drawing was not limited to one gender population on any given evening. As such, all opinions regarding
the venue for Hakhel will be able to concede to R. Feinsteins position that the Temple partition represented a
mitzvah de-Oraita.]

20

cogently observe that the term tikkun seems to etymologically flow from the word takanah,
thus representing a rabbinic enactment and thereby refuting R. Feinstein.19
Nevertheless, it seems to this writer that one might answer in defense of R. Feinstein
based on the gemara in Sukkah 41b, which elucidates the mishnah on 41a regarding Rabban
Yochanan ben Zakkais enactment to prohibit the consumption of chadash for the entirety of the
second day of Pesach in the post-Temple era. Rav Nachman bar Yitzchak opines that this
prohibition is actually biblical in nature. The gemara immediately objects that the mishnah states
hitkin meaning that Rabban Yochanan ben Zakkai legislated a rabbinic decree. The gemara
responds that hitkin can mean darash ve-hitkin, i.e., he performed the necessary exegetical
analysis, and realizing that a Torah prohibition has been activated, he fixed (rather than
legislated) the problem by publicizing the mitzvah de-Oraita at hand. Mutatis mutandis, the same
approach can be advanced to explain the tikkun gadol of the mishnah in Sukkah 51a, such that
it may indeed represent a mitzvah de-Oraita.
B. ABSOLUTENESS OF DEMOGRAPHIC SEPARATION
To say that there is a mitzvah for the Temple [and, by extension, the synagogue] to
possess a partition does not necessarily mean that the demographic separation orchestrated by the
partition must be one hundred percent absolute. The precise extent of the absoluteness is actually
a matter of some controversy.
R. Feinstein, Iggerot Mosheh, Orach Chaim I, nos. 39 (final paragraph) and 41
(paragraph that begins u-tmeihani) claims that it is actually permissible for one lady to be present
in the gentlemens section during services. [And, evidently, the reverse is also true: it is
permissible, according to R. Feinstein, for one gentleman to be present in the ladys section
during services.20] R. Feinstein proves this from the story of Eli the High Priest and Chanah who
were assembled together in the Mishkan sanctuary without any partition between them, as is
recorded in I Samuel 1:9-18. Furthermore, Tosafot to Kiddushin 52b, s.v. ve-khi ishah ba-azarah
minayin, say that when a lady needs to bring an offering in the Temple, e.g. she is a nezirah, she
may enter the Temple courtyard to do so. But, reasons R. Feinstein, there are surely plenty of
gentlemen (i.e. the kohanim) already present in the courtyard when the nezirah enters the
courtyard. Thus, we see that one lady may be present among many gentlemen in the Sanctuary
[and likewise one gentleman may be present among many ladies in the Sanctuary.]
R. Yehudah Herzl Henkin, Shut Bnei Vanim I, no. 4, strengthens this permission,
authorizing the presence of one or two ladies in the gentlemens section. In addition to the
sources marshaled by R. Feinstein, R. Henkin quotes the gemara in Megillah 23a (codified by
Shulchan Arukh Orach Chaim 282:3) that, in theory, a lady may be called to the Torah when
there are seven aliyot on the Sabbath. Obviously, reasons R. Henkin, giving an aliyah to a lady
necessitates her entering the gentlemens section, and yet there is no problem with such a
logistical arrangement. R. Henkin feels that it is equally evident that in theory even two
consecutive aliyot may be given to ladies, meaning that in effect there will be two ladies
simultaneously present in the gentlemens section.

19

Dr. Golinkins analysis appears at <http://www.responsafortoday.com/engsums/2_1.htm>. Dr. Yuters analysis

appears at <http://viewpoints.utj.org/?p=63>.

20

Depending on the architecture of the ladies section, however, there might be a problem of yichud for one
gentlemen to be present in the ladies section. A discussion of that topic is beyond the scope of the present essay.

21

Although R. Feinstein never personally wrote any responsum that specifically addresses
the situation of two ladies, it seems to this writer that he would indeed agree with R. Henkin that
even the presence of two ladies is permitted, in light of R. Feinsteins pronouncement (op. cit., at
the end of the latter paragraph) to the effect that the main prohibition is where many [harbeh]
gentlemen and ladies have gathered. The term harbeh implies the presence of at least three
individuals, as is evident from the term reshut harabim employed in the context of the laws of
damages and ritual purity, as well as the term al Daat rabim in the context of vows. [See, for
example, the gemara in Gittin 46a.]
Arguably, this assumption is confirmed by a posthumously published responsum, viz.,
Iggerot Mosheh, Orach Chaim V, no. 12, sec. 2, which explicitly rules that even the presence of
two ladies is permitted. The latter responsum also points to the Shulchan Arukh Orach Chaim
282:3 as proof to the permission of one or two ladies in the gentlemens section, a proof that has
already been marshaled by R. Henkin. [It should be noted, as a matter of epistemology, that the
entire volume of Iggerot Mosheh in which this responsum appears was published posthumously
in 5756 and did not undergo review by R. Feinstein, for R. Feinstein had ascended to the
Heavenly Academy a decade earlier.21 As well, it should be noted that this responsum was not
even personally written by R. Feinstein. Rather, as explained in an editorial gloss, R. Feinstein
dictated his words in Yiddish to another scholar, and the other scholar then composed the
Hebrew text of the responsum, either orally reciting or visually presenting it before R. Feinstein.
R. Feinstein subsequently signed it.]
Thus, according to the joint position of R. Feinstein and R. Henkin, there is only a need
for a partition when there are three gentlemen and three ladies gathered together in the
Sanctuary. But three gentlemen with one or two ladies, or three ladies with one or two
gentlemen, is permissible without any partition.
Remarkably, according to the transcript of a 1927 speech, the joint position of R.
Feinstein and R. Henkin was espoused years earlier by R. Eliezer Silver (well before R. Feinstein
wrote about this topic or before R. Henkin was even born). R. Aaron Rakeffet-Rothkoff, The
Silver Era in American Jewish Orthodoxy (Feldheim, 1981), p. 332, reports that R. Silver
delivered a disquisition on the laws of synagogue architecture in which he permitted one or two
ladies to be present in the gentlemens section.22 Although supporting justification is not

21

The editors of this posthumous volume write in their introduction (p. 2): but in this volume [of Iggerot Mosheh]
we have become orphans and we do not have a father to show us our way and even though we have relied on the
merit of our master, our grandfather [the Iggerot Mosheh], zatzal, not to err in any matter of Halakhah, still we
cannot say that we have not erred in any place, and we will thank from the depths of the heart the readers who will
call our attention to the mistakes that they will find, so that we will be able to fix upcoming editions. See also the
introduction of the previous volume of the Iggerot Mosheh (Even ha-Ezer IV & Choshen Mishpat II), which was
indeed published by R. Moshe Feinstein himself. There, R. Feinstein writes: As is known to everyone, the full
responsibility for the publication of this book is placed upon me from its beginning to its end, for they [my assistant
publishers] send to me all the manuscripts that I should see and correct them before they enter publication.
Reflected within those comments of R. Feinstein is the notion that he refused to allow normative halakhic
pronouncements to be published in his name (even from letters he had already personally authored) unless he
personally proofread those pronouncements in advance. This notion is also apparently confirmed by the testimony of
R. Moshe David Tendler, who reports that R. Feinstein first wrote a given teshuvah on a piece of stationery, then
recorded it in a composition notebook, then copied it into a big ledger, and finally reviewed it and sent it in for
publication with notes and additions in the margins. (Interview with Shaul Seidler-Feller in Kol Hamevaser, 4:1 [21
Elul, 5770], p. 14).
22

I am grateful to R. Gil Student for bringing this source to my attention.

22

presented in R. Silvers speech, one assumes that R. Silver relied on the proofs later advanced by
R. Feinstein and R. Henkin.
However, there is a more stringent approach. As R. Henkin himself notes, R. Eleazar
Fleckles, Shut Teshuvah me-Ahavah II, no. 229, sec. 10, refuses to permit admission of even so
much as one lady inside the gentlemens section. [And, surely, R. Fleckles would prohibit
admission of so much as one gentleman in the ladies section.] Likewise, as cited in Section A
above, R. Efraim Greenblatt, Shut Rivevot Efrayim V, no. 601, quotes the Gilyonei ha-Shas to
Kiddushin 52b to the effect that based on the Yerushalmi in Maaser Sheni 5:3 it is
prohibited for even so much as one lady to be present among gentlemen in the Sanctuary. [And,
likewise, it would appear that it would be prohibited according to this source for even one
gentleman to be present among ladies in the Sanctuary.] Quite significantly, this is also the
position of Rashi in Kiddushin 52b, s.v. ve-khi ishah ba-azarah minayin, as Rashi is amplified by
both Tosafot and Tosfot ha-Rosh.23 R. Jacob Zev Yoskovitz, in his Ambuha de-Sifrei
commentary upon the Sifrei Zuta, Numbers 5:19, insightfully observes that this is also the
position of Rabbeinu Bachya in the latters commentary to Leviticus 10:14.24
Moreover, and rather intriguingly, in an opinion that seemingly contradicts his previously
announced position, R. Feinstein prohibits the entrance of even so much as one lady into the
gentlemans sanctuary [and, apparently, the reverse as well], in Iggerot Mosheh, Orach Chaim
IV, no. 70, sec. 5. There, R. Feinstein is consulted whether a synagogue rabbi may authorize a
lady to enter the gentlemens sanctuary during prayers in order to read an English translation of
the liturgy for the pedagogical benefit of the congregants. R. Feinstein responds that it is
obvious that it is forbidden, and it is astonishing that an Orthodox rabbi would do so. Behold,
you write that the Gaon R. Jacob Isaac Ruderman told you that it is forbidden, and it is obvious
and clear that it is forbidden25
23

This stringent reading of Rashi is subsequently endorsed by Gilyonei ha-Shas, by R. Betzalel Zev Shafran, Shut
ha-Rabaz I, no. 2, sec. 11; and by R. Henkin (loc. cit.) [For more on the precise meaning of Rashis principled
position, see infra, note 29, with accompanying text.]
24

I am grateful to R. Hershel Schachter for bringing this source to my attention.

25

Cf. Iggerot Mosheh, Orach Chaim IV, no. 36, where R. Feinstein directs a bat mitzvah celebrant to deliver her bat
mitzvah speech from the social hall table where the Kiddush reception following prayer services will be arranged,
and not from the bimah during prayer services. Although his directive is cryptically formulated, one presumes that
the reasoning behind R. Feinsteins bat mitzvah ruling is once again that he prohibits even the presence of an
individual lady in the gentlemens section [or vice-versa] during communal prayers.
The responsa of R. Feinstein which allow some leniency in the absoluteness of demographic separation are
dated 22 Tevet, 5706; 28 Marcheshvan, 5712; and 22 Tamuz, 5742. The responsa of R. Feinstein which demand
absolute demographic separation are dated 2 Sivan, 5719; and 27 Adar, 5739. It is not clear to this student how R.
Feinsteins apparently divergent rulings on this subject can be reconciled.
One might argue that perhaps the issue in the stringent responsum is not the fact that the lady is entering the
gentlemens sanctuary but the fact that she is publicly speaking. However, if that were the case, R. Feinstein would
have been expected to rule that it is even forbidden for the lady to speak from the ladies side of the sanctuary. This
R. Feinstein does not say, an omission suggesting that it is the ladys entry into the gentlemens sanctuary itself
which is ipso facto contraindicated. Alternatively, one might argue that R. Feinstein means to rule that (a) a lady
may permissibly publicly speak from her side of the sanctuary, and (b) one or two ladies may permissibly enter the
gentlemens sanctuary; but that the synergic combination of (a) and (b) is prohibited (i.e. a lady may not both enter
the gentlemens section and also publicly speak). However, such an interpretation does not appear convincing either,
since R. Feinstein emphatically declares that it is obvious that it is forbidden, and it is astonishing that an Orthodox
rabbi would do so it is obvious and clear that it is forbideen., which is inconsistent with a prohibition that
exists on account of the sophisticated calculation of two synergic factors. Seemingly, R. Feinstein is responding with
conviction because he regards the very entrance of the lady into the sanctuary as prohibited.

23

It is true, as R. Moshe David Tendler reports on pp. 19-20 of his excellent sefer entitled Responsa of Rav
Moshe Feinstein (KTAV Publishing, 1996), that R. Feinstein orally verified that no ruling in Iggerot Mosheh was
ever retracted. However, it would seem to this student that at least three exceptions to this principle might exist,
where R. Feinstein indeed appears to have indeed modified his position within the Iggerot Mosheh, as follows.
(1) Regarding opening a refrigerator door on the Sabbath [when no light bulb will be activated], R.
Feinstein writes in Orach Chaim I, no. 128, final paragraph:
"I do not wish to answer, because there are reasons to this side and to that side. And see
the Jubilee Book of Ezrat Torah for R. Joseph Elijah Henkin, shlit"a... And if it is
possible to acquire a machine which operates such that there is no concern with opening
the refrigerator, it is proper to affix it to the refrigerator."
Yet, in Orach Chaim II, no. 68, final paragraph, R. Feinstein writes:
Much has been said about this, and R. Joseph Elijah Henkin, shlit"a, has ruled that they
may open [the refrigerator] when the motor is [already] running and working, and this is
a good way to conduct oneself, and [I] cannot write about this at length further."
And yet, in Orach Chaim IV, no. 74, bishul 28, R. Feinstein permits opening an oven door
on Shabbat, even though the oven possesses a thermostat and the element is presently not running and working,
even though this will inevitably accelerate the process of activating the element. This should be exactly the same
halakhic status as opening the refrigerator door, and yet here R. Feinstein is lenient without hesitation. [I am grateful
to R. Chaim Jachter for bringing this apparent incongruity to my attention.]
(2) Regarding the conversion of a Noahide child who will be adopted by a non-yet-observant Jewish
family, in Yoreh Deah I, no. 158 (paragraph that begins with the words u-mah she-katav), R. Feinstein expresses
uncertainty whether the conversion is valid. Yet, in the subsequently published Even ha-Ezer IV, no. 26, sec. 3, R.
Feinstein takes it for granted that such a conversion is definitely valid, without even mentioning his previous doubt
on the topic. [N.B. Perhaps a subtle modification of this sort (from doubtful kashrut to definite kashrut of
conversion) did not rise to the threshold of a retraction in R. Feinsteins eyes. Tangentially, it should be noted that R.
Feinsteins conversion ruling is contested by R. J. David Bleich in the latters Be-Netivot ha-Halakhah II (KTAV
Publishing, 1998), pp. 185-187; idem. III (KTAV Publishing, 2001), p. 223; and idem. IV (HaDaF Typesetting,
2010), p. 193.]
(3) Regarding a double-ring ceremony at a Jewish wedding, in Even ha-Ezer III, no. 18, R. Feinstein
prohibits the practice on account of Leviticus 18:3, although he insists that the kiddushin is nevertheless valid. Then,
in Even ha-Ezer III, no. 25, R. Feinstein disqualifies a kiddushin performed by reform clergy, on the grounds of it
being a double-ring ceremony. Subsequently, in Even ha-Ezer IV, no. 13, sec. 4, R. Feinstein also potentially
disqualifies a marriage performed by conservative clergy, on the grounds of it being a double-ring ceremony, though
R. Feinstein admits here he is not certain whether this particular consideration is definitive. Further, in Even ha-Ezer
IV, no. 32, R. Feinstein responds to an interlocutor who asks regarding the obvious question between Even ha-Ezer
III, nos. 18 (which validates the kiddushin) and 25 (which invalidates the kiddushin). R. Feinstein elucidates that no.
18 concerned an Orthodox rabbi who instructs the bride and groom that it is only the ring from the groom to the
bride which accomplishes kiddushin. The ring from the bride to the groom, while prohibited as an issur gadol (major
prohibition) on the part of the officiant, does not disqualify the marriage under these circumstances. By
contradistinction, no. 25 dealt with reform clergy who made the bride and groom think that the marriage depends on
the exchange of rings. Under such false pretenses, the whole kiddushin transaction does not take effect. Yet, even
this resolution [provided by R. Feinstein in Even ha-Ezer IV, no. 32] is contradicted by Even ha-Ezer IV, no. 13,
sec. 4, where R. Feinstein writes that if a rabbi is threatened with the loss of his employment should he refuse to
officiate at a double-ring ceremony, the rabbi may so officiate, provided he explains to the bride, groom and
supervising witnesses that only the ring from the groom to the bride orchestrates kiddushin. Such a permissive
prescription on the part of R. Feinstein indicates that there is no violation of Leviticus 18:3 altogether in the rabbi
officiating at such a ceremony, thus contradicting Even ha-Ezer IV, no. 32 which forbids such conduct as an issur
gadol. [If the act is forbidden, the rabbi is absolutely obligated to forfeit his job rather than participate, pursuant to
Deuteronomy 6:5, as codified by Rema in Shulchan Arukh Orach Chaim 656:1 and again in Shulchan Arukh Yoreh
Deah 157:1 (and acknowledged by R. Feinstein himself in Iggerot Mosheh, Yoreh Deah II, no. 174, sec. 4, final
paragraph). I am grateful to Aliza Rudner for bringing this inconsistency to my attention.]

24

In any event, we must now address how the stringent camp (i.e. Yerushalmi, Rashi,
Rabbeinu Bachya, Teshuvah me-Ahavah, and Rivevot Efrayim) would deal with the
aforementioned lenient proofs from Chanah, the nezirah and ladies receiving an aliyah. It would
appear to this writer as follows. Even according to the stringent camp, there is only a prohibition
for a lady to enter the gentlemens area when there are at least three gentlemen. But if there is
only one or two gentlemen, then one or two ladies may also be present. This explains the story of
Chanah, where only one lady and one gentleman were present. Likewise, when a nezirah needs
to bring her offering, all the kohanim (except for two) must be evacuated from the courtyard.26
And for ladies to receive an aliyah, either (i) all ladies (except for two) would have to evacuate
the ladies section, whereupon a gentleman carrying the Sefer Torah could enter the ladies
section and deposit the Sefer Torah on a desk. The gentleman would then leave and all the
evacuated ladies could now re-enter; or (ii) a gentleman would carry the Sefer Torah to outside
the synagogue, whereupon he would deliver the Sefer Torah to a lady, and the lady would then
proceed to transport it to the ladies sanctuary; or (iii) the ladies sanctuary would have to
possess its own separate Torah scroll.27
See also infra, notes 75 and 121, for two other possible instances where R. Feinstein appears to have
modified his position within his Iggerot Mosheh responsa (-both instances actually being related to the synagogue
partition theme). The matter requires further analysis, although as will be presently demonstrated in the
forthcoming two paragraphs of the main text of this section Maharam of Rothenburg (as cited by Tashbetz Katan
and Rema) appears to be similarly inconsistent on the question of whether one lady may enter the gentlemens
section. Accordingly, perhaps we may speculate that R. Feinstein took his cue from Maharam of Rothenburg.
26

R. Eliezer Silver, in his Anfei Erez I, s.v. ein ishah ba-azarah, suggests a different answer. He opines that,
according to the stringent camp, the nezirah stands immediately outside of the gateway to the inner courtyard, and
inserts her hands through the gateway, such that she performs the waving procedure of her offering in the airspace of
the inner courtyard while she herself is standing outside of the inner courtyard. [The same answer is advanced by R.
Gil Student, Posts Along the Way (Yashar Books, 2009), p. 200.]
As already explained supra, note 11, R. Silver also entertains the possibility that separation of ladies and
gentlemen in the synagogue (as well as the Temple) constitutes a mitzvah de-Oraita. If so, then R. Silvers answer
regarding how a nezirah brings her offering would represent an endorsement of one of the three positions detailed in
Section C below as to the exact specification of the synagogue partition, viz. the geographic barrier theory. [See
infra, note 30, with accompanying text.] This is because a lady standing just outside the inner courtyard gateway and
inserting her hands into the inner courtyard airspace is geographically removed from the gentlemen assembled in the
inner courtyard, but is neither kinaesthetically nor visually removed. However, as further noted (supra, note 11) it is
also possible that R. Silver may hold that while gentlemen and ladies enjoy a mitzvah de-Oraita to be separated in
the Temple, they need not be segregated with an intervening partition according to Torah law. If that is the case,
then no proof from the Anfei Erez words can be marshalled regarding the specifications of the partition. And in any
event, since R. Silver himself does not hold that Rashis stringent position is normative, but rather agrees with
Tosafots lenient position (-as is evident from the citation of his practical ruling from The Silver Era earlier in the
text of this section), no proof whatsoever in terms of R. Silvers pesak halakhah can be gleaned from the comments
of the Anfei Erez, insofar as they elucidate Rashi.
27

On the countervailing side, there is at the present time of the writing of this essay an important discussion
among rabbinic scholars (in the noble, righteous and friendly spirit of milchamtah shel Torah, as per R. Moshe
Feinsteins depiction in Iggerot Mosheh, Orach Chaim IV, no. 25) regarding the propriety of arrangements (ii) or
(iii).
Namely, some poskim prohibit a lady from publicly carrying a Sefer Torah, while other poskim authorize it.
[Shulchan Arukh Yoreh Deah 282:9 and R. Ovadiah Yosef, Shut Yechaveh Daat III, no. 8, explicitly permit ladies
to hold a Sefer Torah. This certainly appears to support the poskim who endorse the practice of ladies transporting a
Sefer Torah. Those poskim who disagree would presumably interpret Shulchan Arukh and Yechaveh Daat as
referring exlusively to a lady statically holding the scroll in a stationary position, as distinct from the lady
dynamically transporting the scroll in public. This student would hypothesize that a basis for this latter distinction
might arguably arise from the consideration that, as discussed supra, note 8 (bracketed final paragraph), normative

25

Halakhah prohibits employment of ladies as pallbearers because of kevod ha-met. One might accordingly extrapolate
from the mitzvah of kevod ha-met to (le-havdil) prohibit ladies from carrying a Sefer Torah on account of the
mitzvah of kevod Sefer Torah. An allusion to this parallelism (between the respect due to a coffin and le-havdil
the respect due to a Torah scroll) may further be imputed in the gemara in Sotah 13a-b, which speaks of the Ark of
Josephs bones complementing (le-havdil) the Ark of the Covenant. And see R. Chaim Palaggi, Sefer Chaim 16:22,
who explicitly raises the question of whether a lady may permissibly carry a Torah scroll in public, as perhaps this
violates the concept of kevod ha-tzibbur of which the gemara in Megillah 23a speaks. R. Palaggi asks as a follow-up
question that if one should answer that the response to the first question is that it is forbidden what will be the
halakhah if a lady legally owns her own personal Sefer Torah: can she at least carry her own Sefer Torah to the
synagogue? R. Palaggi concludes that these questions require further analysis, but that there was a case of two ladies
who owned a Sefer Torah and who carried it to the synagogue. {R. Palaggi adds that the two ladies were ritually
pure and, in fact, were guaranteed to remain ritually pure.}] Additionally, some poskim prohibit the existence of a
separate Ark in the ladies Sanctuary, while other poskim permit it. These two debated questions are major issues of
contemporary significance within the context of Womens Tefillah Groups. An adjudication of this important
halakhic subject transcends the scope of this essay.
[For a survey of conflicting opinions on this matter, see R. Aryeh Frimer and R. Dov Frimer, Womens
Prayer Groups, Tradition 32:2 (Winter 1998); R. Avraham Weiss, Women at Prayer: A Halakhic Analysis of
Womens Prayer Groups (3rd edition, KTAV Publishing, 2001); R. Gil Student, Posts Along the Way (Yashar
Books, 2009); R. Michael Rosenberg and R. Ethan Tucker, Egalitarianism, Tefillah and Halakhah, posted on Oct.
20, 2009 at <http://www.halakhah.org/2009/10/egalitarianism-tefillah-and-halakhah.html>; R. Avraham Weiss,
Women and sifrei Torah, in Mishpetei Shalom: A Jubilee Volume in Honor of Rabbi Saul (Shalom) Berman (R.
Yamin Levy, ed.), KTAV Publishing, 2010; and the two lectures of R. Mordechai Willig referenced supra, note 11.
{Tangentially, in the last of these sources, at 16:00-17:10 into the lecture (delivered on Dec. 11, 2010), R.
Willig invites the audience to find a source for R. Weinrebs announced opinion (issued Oct. 14, 2010, as published
at <http://www.ou.org/general_article/ou_board_issues_statement_on_friday_night_services>) to require that the
audience of a Kabbalat Shabbat service led by a lady be purely compoased of ladies. At a subsequent lecture
(delivered during a conference on Jan. 14-16, 2011, and recorded at
<http://www.ou.org/torah/article/the_mesorah>), R. Weinreb indeed provides the source for his opinion: the mitzvah
de-rabbanan of kol be-ishah (as per the gemara in Berakhot 24a), which requires the audience of a lady musical
vocalist to be purely composed of ladies. It appears to this student that R. Weinrebs ruling is corroborated by
Mishnah Berurah to Orach Chaim 479 (9) who authorizes a lady to lead the recitation of Hallel at the Seder, but
adds that if the Hallel is musically sung, the Seder audience should be purely composed of ladies, due to the mitzvah
de-rabbanan of kol be-ishah. In any event, it may be noted that R. Weinrebs ruling is prospective rather than
retrospective; i.e. it endeavours to clarify the law for any future prayer service (rather than referring to any already
orchestrated prayer service), recognizing that ve-amekh kulam tzaddikim (Isaiah 60:21). Clarification of the law
for the future can potentially be independent (under some circumstances) of evaluating actions of the past, as
discussed supra, note 9. R. Weinrebs ruling does not cast aspersions upon the supreme righteousness of those who
participated in Kabbalat Shabbat services before Oct. 14, 2010. Indeed, those who did so deserve special credit for
precipitating this important halakhic analysis, apropos Rashi to Numbers 27:5 who comments that the children of
Tzelofchad are to be praised for precipitating Mosheh Rabbeinus investigation of the laws of inheritance.}]
In any event, as a forced alternative explanation, one might suggest that the gemara in Megillah 23a refers
to a synagogue possessing a unique bimah whose venue may be legally transposed at any time from the gentlemens
section to the ladies section. This unique arrangement is possible if the bimah is situated exactly half-way between
the ladies and gentlemens sanctuaries, and is completely encompassed by walls with accessible doors to both
neighbouring sanctuaties. Under such circumstances, the gentlemen could leave the Sefer Torah on the bimah when
they are finished reading it, exit the bimah, and allow ladies to ascend to the bimah from the opposite side in order to
receive their aliyah.
At the time of the composition of this essay, such an architectural arrangement indeed exists in at least one
righteous synagogue, the Hebrew Institute of Riverdale, as described by its Mara de-Atra R. Avraham Weiss (op.
cit.), and as personally witnessed by this student when privileged to visit on Nov. 7, 2010. (This students privilege
to visit was specifically blessed with advanced authorization by R. J. David Bleich in a telephone conversation on
Oct. 28, 2010.) Cf. the letter of R. Michael J. Broyde (published at
<http://www.yith.org/images/stories/pdf/Ideology/ideologyMechitza.pdf>), where he states in its final footnote:
Indeed it can be demonstrated as halachically proper to set up the sanctuary so that the places where the Torah
reading occurs and the chazan leads prayer are neither in the mens section nor in the womens section, but in a
neutral area in between.

26

An intermediate stance between these two camps (i.e. stringent vs. lenient regarding
absoluteness of demographic separation) appears to be adopted by R. Shalom Mashash in his
Shut Shemesh u-Magen II, no. 28. He understands the gemara in Megillah 23a to be referring to
the synagogue practice in times of yore, which was then regarded as a non-negotiable protocol,
that the person who receives the aliyah be the one who actually publicly reads the Torah scroll.28
Under such circumstances, in a synagogue populated by illiterate gentlemen, a literate lady may
be called to receive a seventh aliyah, since there is no alternative choice. Accordingly, R.
Mashash allows a lady to be present in the gentlemens section during prayer services when there
is an absolute halakhic need for the prayer service, but not for any elective need. Momentary
entry of one lady [and presumably, when necessary, even two ladies] into the gentlemens
section to fulfill an absolute halakhic need does not create an atmosphere levity, given the
contextual circumstances.
By implication, R. Mashash approach would also answer the question how the nezirah
can enter the Temple courtyard [even when it is filled with many kohanim] in order to bring her
offering. Since the nezirahs offering represents an absolute sacrificial necessity, there is no
problem of levity for a nezirah to momentarily enter the Temple courtyard to bring her offering.
Actually, R. Mashash`s approach was earlier (albeit more cryptically) articulated by R.
Jacob Emden, Mor u-Ketziah to Orach Chaim 282. This is because Mor u-Ketziah appears to
indicate that Kiddushin 52b bars any lady from entering the gentlemens sanctuary (and,
evidently, vice-versa), except in the circumstances where a lady is needed to read the Torah.
Arguably, R. Emden and R. Mashash joint view may be identical with that of Tosfot haRosh to Kiddushin 52b in elucidating the position of Rashi. Namely, Tosfot ha-Rosh propose that
Rashi would allow a lady to enter the gentlemans section for a necessary sacrificial purpose (leAccording to this forced alternative explanation, one could just as is solution (i) proposed in the text
theoretically subscribe to all three stringent positions that (a) a lady may not transport the Sefer Torah; (b) the ladies
section may not have its own Sefer Torah; and (c) the demographic separation within the Sanctuary must be
absolute; even while recognizing that a lady could theoretically receive an aliyah. However, as will emerge from
Section M of this essay, such a unique architectural arrangement is only possible according to the geographic and
visual barrier theories of the synagogue partition, but not according to the kinaesthetic barrier theory. Now, the
opinion that a geographic barrier suffices will be recognized by this essay to represent only a safek possibility, and
therefore must be rejected in terms of normative Halakhah because of safek de-Oraita le-chumra, as per infra,
Section E. On the other hand, a visual barrier (if constructed in such a manner to be rigid and hence to also
constitute a geographic barrier, as per infra, Section J) can be justified on the basis of a sfek sfeka le-kula. Thus, a
bimah which is surrounded by visual barriers (or consisting at least of walls of polarized glass, such that people on
the bimah cannot see the ladies side, and the gentlemens side cannot see the bimah) would achieve this goal.
Whether or not such a forced alternative explanation is at all halakhically viable is itself a matter of interest.
See Appendix C of this essay for analysis.
[Parenthetically, the propriety of transporting the Sefer Torah from the gentlemans side to the ladies side
is also subject to question on independent grounds, viz. the rabbinic prohibition against moving a Sefer Torah from
one home to another, as codified in Shulchan Arukh Orach Chaim 135:14 (and already discussed supra, note 18).
Nevertheless, this problem may be resolved according to the opinions of those poskim who permit transporting the
Sefer Torah when it is needed in order for the congregation to hear the Torah reading, and/or when transporting the
Sefer Torah between different chambers under the same roof. For an extensive digest of sources to this effect, see R.
Saul J. Berman, The moving of a Sefer Torah, in Mishpetei Shalom: A Jubilee Volume in Honor of Rabbi Saul
(Shalom) Berman (R. Yamin Levy, ed.), KTAV Publishing, 2010; and R. Moishe Dovid Lebovits, Moving a Sefer
Torah, Halachically Speaking, Vol. 3, Issue 20, 2007).]
28

R. Mashash further observes that this protocol has since been changed by the contemporary minhag to employ a
baal korei who publicly reads every aliyah. [I am grateful to Shimi Cohen for bringing this valuable source to my
attention.]

27

tzorekh). For Tosfot ha-Rosh, Rashis stringency only applies vis--vis an elective visit by one or
two ladies into the gentlemans section [and conversely by one or two gentlemen into the ladies
section.] By contradistinction, when the ladys presence is required for a mitzvah purpose, e.g.,
she is a nezirah who must bring her offering, then she may certainly enter.28a
However, R. Henkin (loc. cit.) correctly infers from the phraseology of Tosafots attack
on Rashi that Tosafot themselves did not understand Rashi in this manner. Rather, Tosafot
interpret Rashi as holding that a lady may never enter the gentlemens section of the Sanctuary,
whether it is for a necessary or elective purpose. Thus, there is actually a dispute between
Tosafot and Tosfot ha-Rosh regarding the position of Rashi.29 29a

28a

Accordingly, one possible way of reading R. Emden and R. Mashash` joint position is that they concur with
Rashi, as Rashi is interpreted by Tosfot ha-Rosh. [Cf. infra, note 29a, for an alternate possibility on how to read R.
Emden and R. Mashash` joint position.]
29

R. Henkin proceeds to claim that Tosfot ha-Rosh must be correct, thanks to a Tosefta in Arakhin 2:1, which states
explicitly that a lady was never seen in the [inner] courtyard except at the time her offering was brought. Since
Rashi cannot argue on the Tosefta, it must be that Rashi would concede that for so noble a purpose as bringing her
offering, a lady does enter the gentlemens section of the Sanctuary.
Still, with all due reverence to R. Henkin, it seems to this writer that the Tosefta is hardly a compelling
proof to the thesis of Tosfot ha-Rosh. Perhaps the Tosefta simply means that, whenever it was necessary for the
offering of a lady to be brought, all the kohanim (except two) were evacuated from the premises. But, indeed, until
the kohanim are so evacuated, Rashi might well prohibit a lady from entering the gentlemens section, even letzorekh.
Likewise, R. Henkin marshals a proof to favour the Tosfot ha-Rosh from the gemara in Niddah 6b which
reports that the maidservant of Rabban Gamliel once baked loaves for a todah offering. R. Henkin axiomatically
assumes that such loaves can only be baked in the inner courtyard, and so Rashi who is incapable of disputing the
gemara must concede that a lady may permissibly enter the gentlemens section le-tzorekh, with the baking of
sacrificial loaves being considered an important need. Once more, it seems to this writer that the proof can be
refuted by simply positing that perhaps all the kohanim (except two) were evacuated from the premises before the
maidservant entered. Moreover, as R. Henkin himself admits, R. Aharon Shmuel Kaidnover, in his Birkat ha-Zevach
commentary to Menachot 76b, tentatively draws precisely the opposite axiomatic conclusion from the episode in
Niddah 6b in a manner which repudiates R. Henkin: the fact that the maidservant baked the todah loaves when
Rashi holds that a lady cannot enter the gentlemens section of the Sanctuary seems to indicate that todah loaves
can be baked outside of the inner courtyard! Employing a different strategy, but one which equally deflects R.
Henkins proof, R. Avraham Chaim Shurin, in his Tzon Kodashim commentary to Menachot 76a, suggests that the
maidservant merely kneaded the dough for the todah loaves which unquestionably can occur outside of the inner
courtyard and that someone else [i.e. a gentleman] served as the maidservants agent to actually enter the inner
courtyard and bake the todah loaves. Although R. Henkin expresses his disagreement with both the Birkat haZevach and Tzon Kodashim, he does not offer any intrinsic evidence upon which to substantiate his opposition.
R. Henkin further endeavors to bolster the position of Tosfot ha-Rosh by citing Rashi to Numbers 10:5 to
the effect that Miriam was prophetically summoned into the courtyard of the Tabernacle. Since, by Rashis own
account, Miriam did enter the courtyard (which corresponds to the gentlemens section of the Temple), R. Henkin
argues that Rashi himself must concede that a lady may enter the gentlemens section le-tzorekh. To this student,
that proof is a non sequitur since the ad hoc instructions that a bona fide prophet receives (horaat shaah) override
all commandments of the Torah [except for the interdiction against idolatry], as per the gemara in Sanhedrin 90a.
Thus, since Miriam was a true prophetess, she enjoyed a special obligation to heed whatever prophetic directive she
received, even if the directive would have indeed meant violating the norms of Leviticus 19:30. [Alternatively, but
along the same line of reasoning, perhaps the prophetic decree that Miriam received included an obligation to
evacuate all gentlemen currently assembled in the courtyard, save for Moses and Aaron who were simultaneously
invited to the courtyard. As posited earlier in the main text of this section of the essay, even Rashi to Kiddushin 52b
must agree that one lady can be present in the Sanctuary with two gentlemen. (I.e. Although a select cadre of
kohanim and leviim stand guard in the Tabernacle/Temple throughout the night as described by Rambam, Hilkhot
Beit ha-Bechirah ch. 8, the prophetic directive to Miriam may have consisted of an ad hoc command to dismiss
those standing guard in the courtyard.)]

28

Indeed, regarding this debate between Tosafot vs. Tosfot ha-Rosh, we find several
Rishonim who appear to have vaccilated. Namely, R. Shimon ben Tzadok, Tashbetz Katan no.
397, cites the Maharam of Rothenburg as well as Rabbeinu Tuvia and R. Yekutiel ben Moshe
as discouraging/prohibiting a lady from entering the gentlemens section of the synagogue to
hold the baby during a circumcision celebration. Maharam (as cited by his disciple) invokes the
precedent of the ezrat nashim [i.e. ladies gallery in the Temple] in advocating his position.
However, Tashbetz Katan vacillates between describing this ruling as a preferred stringency vs.
an absolute prohibition. [Presumably, the quest to hold a baby during a circumcision represents a
mitzvah need, and so the vacillation of these Rishonim whether or not it is prohibited for a lady
to do so in the gentlemen`s section of the synagogue represents a vacillation on the debate
between Tosafot vs. Tosfot ha-Rosh.]
Similarly, R. Moshe Isserles, Darkei Mosheh to Tur, Yoreh Deah 265 (11), quotes the
Maharil as having cited the Maharam of Rothenburg to the effect that a lady transporting a baby
boy to synagogue [on the occasion of the babys circumcision celebration] should stop outside
the synagogue and hand the baby to a gentleman who will continue to carry the baby inside.
Moreover, insists Maharam of Rothenburg (as cited by Darkei Mosheh in the name of Maharil),
a lady may not hold the baby during a circumcision celebration. However, when this provision is
subsequently codified by R. Isserles in his gloss to Shulchan Arukh Yoreh Deah 265:11, R.
Isserless writes and a lady may not be a sandak for the baby in a situation where it is possible
for a gentleman [to be the sandak]. The implication of this latter ruling is that if there would be
no alternative, a lady could indeed serve as a sandak. Thus, like Tashbetz Katan before him, R.
Isserles appears to vacillate on how strongly Maharam of Rothenburg ruled regarding this issue.
In conclusion, we have discovered a two-tiered hierchial debate regarding the
absoluteness of the demographic separation that must orchestrated by a synagogue partition, as
follows:
(1) According to Tosafot, R. Silver, and R. Henkin, there is a need for a sanctuary
partition when there are both three ladies and three gentlemen. Thus, one or two ladies may be
present on the gentlemens side during synagogue services, and one or two gentlemen may be
Finally, R. Henkin attempts to endorse the Tosfot ha-Rosh on the basis of a Tosefta in Kelim 1:9, which
states that Anyone may enter the Sanctuary in order to build it, fix it, or remove a source of impurity. Preferably it
should be done with kohanim; if there are no kohanim, then leviim enter; if there are no leviim, then yisraelim
enter. R. Henkin argues that if it is true as Tosafot claim (contrary to the Tosfot ha-Rosh) that according to Rashi
even one lady may not enter the gentlemens section even le-tzorekh, then the beraita should have continued: It is
preferable that gentlemen enter; if there are no gentlemen, then the ladies enter. This writer would respectfully
retort that the proof is without substance. When the beraita directs that if there are no leviim, then yisraelim
enter, Rashi can simply explain the beraita to mean that either yisraelim who are ladies will enter or yisraelim
who are gentlemen will enter. Once the Sanctuary is empty of kohanim and leviim, there is absolutely no reason
whatsoever to prefer the entry of Israelite gentlemen over the entry of a Israelite ladies. Let the gentlemen stay home
and let the ladies perform the mission; the ladies are just as qualified to enter! The only fastidiousness of Rashi is
that ladies and gentlemen should not occupy the Sanctuary simultaneously.
In conclusion, then, the purported proofs to support the Tosfot ha-Rosh can be respectfully countered, and
the proper interpretation of Rashi remains an open question subject to dispute between Tosafot and the Tosfot haRosh.
29a

Accordingly, one possible way of reading R. Emden and R. Mashash` joint position is that they concur with
Tosafot, and unlike R. Silver, R. Feinstein and R. Henkin who all interpret Tosafot as allowing oneto enter the
gentlemen`s section even for an elective purpose R. Emden and R. Mashash jointly believe that Tosafot must be
limiting authorization to allowing a lady to enter for only a mitzvah purpose. [Cf. supra, note 28a, for an alternate
possibility on how to read R. Emden and R. Mashash` joint position.]

29

present on the ladies side during synagogue services. By contradistinction, according to the
Yerushalmi, Rashi, Rabbeinu Bachya, Teshuvah me-Ahavah, and Rivevot Efrayim, there is a
need for a sanctuary partition when there are either three gentlemen or three ladies. Thus, there
cannot even be so much as one lady on the gentlemens side during synagogue services, and
there cannot even be so much as one gentleman on the ladies side during synagogue services.
[Beyond these two polar positions, R. Feinstein appears to have vacillated on this question.]
(2) For the stringent camp of the first tier of the debate (i.e. Yerushalmi et al.), would we
even forbid a one/two ladies from entering the gentlemens section [or one/two gentlemen from
entering the gentlemens section] for a mitzvah need [as distinct from a purely elective purpose]?
According to Tosafots interpretation of the stringent camp of the first tier of the debate, the
stringent camp would prohibit entry even for a mitzvah need. By contradistinction, according to
Tosfot ha-Rosh interpretation of the stringent camp of the first tier of the debate, the stringent
camp of the first tier of the debate would allow entry for a mitzvah need. [Beyond these two
polar positions, Tashbetz Katan and R. Isserles appear to have vacillated on this question.29b]
C. SPECIFICATIONS OF THE PARTITION
The exact specifications of a synagogue partition are subject to a three-way dispute:
(a)

R. Yehudah Herzl Henkin, Shut Bnei Vanim I, nos. 1-2, rules based on the
Rambam in Hilkhot Tumat Tzaraat 10:12 that the mechitzah for a synagogue
is the same mechitzah which suffices for the laws of Shabbat, Sukkah,
Kilayim and Maakeh, i.e., a ten handbreadth high partition. Thus, he requires
a geographic barrier.30

29b

Insofar as R. Emden and R. Mashash` joint position is concerned, it could be interpreted as suggested either
supra, note 28a, or supra, note 29a.
30

R. Henkin further reports that this is the opinion of R. Joseph Ber Soloveitchik in circumstances of duress. In a
parallel manner, R. Hershel Shachter, Mi-Peninei ha-Rav (Beit ha-Midrash de-Flatbush, 5761), pp. 46-47, reports
that this was the position of R. Joseph Ber Soloveitchik, with the caveat added that it is to be applied only in
circumstances of duress. Likewise, on p. 486 of the revised edition of The Sanctity of the Synagogue by Jeanne
Litvin (KTAV Publishing, 1987), R. Shlomo Riskin reports that he consulted R. Joseph Ber Soloveitchik in 1970
regarding the minimal height of the partition required for a synagogue, to which the latter responded that forty
inches is the measure. In light of the definition of a handbreadth (as per the discussion infra, note 32), it is evident
that R. Soloveitchik was demanding a ten handbreadth high partition. Similarly, R. Asher Lopatin of Chicago
reports that this was the position of R. Aharon Soloveitchik (Anshe Sholom Bnei Israel News, Issue VIII, Vol. II,
Summer 5759 [available at <http://www.asbi.org/news/newssum99.pdf>].)
[Actually, several other measurements have been attributed to R. Joseph Ber Soloveitchik. In a 1964 letter
addressed from R. David Lehrfield to Baruch Litvin, published on p. 447 of Jeanne Litvins revised edition of The
Sanctity of the Synagogue, R. Soloveitchik is quoted as having sought a forty-eight inch high partition. R. Aryeh A.
Frimer, in his article in Tradition 23:4 (Summer 1988, p. 76), cites a 1971 consult wherein R. Soloveitchik specified
a fifty inch high partition. And on p. 511 of Jeanne Litvins work, R. Milton H. Polin testifies that R. Soloveitchik
insisted on a fifty-five inch high partition. Those measurements apparently reflect the fact that whereas R.
Soloveitchik relied on a ten handbreadth high partition in times of duress, he required a slightly greater height for
more ideal situations, in a manner depending upon the particular situation. Puzzlingly, there is no particular
indication why forty-eight or fifty inches should be of significance. By contradistinction, the fifty-five inch number
is advanced with the accompanying justification that it represents shoulder height, although that is obviously
incompatible with R. Moshe Feinsteins assumptions regarding shoulder height, as elucidated infra, note 34.]
In any event, an earlier authority to have explicitly authorized reliance (albeit only in a post facto manner)
upon a geographic barrier is R. Yehudah Grunwald, Shut Zikhron Yehudah, Orach Chaim no. 62. [As mentioned in
Section A above, R. Grunwald is also the first decisor (idem.) to explicitly declare that a synagogue partition

30

(b)

R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim I, no. 39 and again in

Orach Chaim III, no. 23 requires an eighteen-handbreadth high partition.
Twice in the first responsum, and twice again in the second responsum, does
R. Feinstein indicate that the partition must be one across which it is
impossible to move ones hand. Thus, R. Feinstein requires a kinaesthetic
barrier.31

constitutes a mitzvah de-Oraita.] Strange as it may seem, the actual purpose of R. Greenwalds responsum is to
encourage all synagogues to adopt visual barriers as their partitions, which represents an endorsement of position
(iii) outlined further in the text. R. Grunwald presents exactly the same proofs in favour of the visual barrier theory
as do the many other poskim who comprise the visual barrier camp (outlined further in the text and infra, note 35).
But unlike those many other stringent poskim, R. Greenwald is willing to be lenient and rely, post facto, on a
partition that is adequate for the laws of domains on the Sabbath, even though such a partition is not a visual barrier.
In essence, then, although R. Grunwald would prefer a visual barrier for a synagogue partition, he is technically
satisfied according to the letter of the law by a geographic barrier. [This point appears to have escaped the stringent
focus of R. Eliezer Yehudah Waldenberg, Shut Tzitz Eliezer VII, no. 8. Namely, {with all due reverence manifest
by this student before that luminary,} R. Waldenberg mistakenly claims that R. Grunwald requires a visual barrier.]
Although it is not entirely clear, it seems to this student that an even earlier authority to countenance a
geographic barrier for the synagogue partition is R. Jacob Emden in his Mor u-Ketziah. R. Emdens apparent
position emerges from the confluence of his two comments cited supra, note 1. In Orach Chaim 282, R. Emden
regards the obligation for demographic separation to be absolute, except for le-tzorekh (as explained in the
penultimate paragraph of supra, note 29). R. Emden equates the absoluteness of demographic separation of genders
in the synagogue with the kevod ha-tzibbur of which Shulchan Arukh Orach Chaim 282:3 speaks in limiting aliyot
to gentlemen. [When there is no choice, and only a lady is available to read the Torah, R. Emden will allow kevod
ha-tzibbur to be overridden and hence a lady to enter the gentlemens sanctuary for the sake of the lady receiving
the aliyah.] Yet, in Orach Chaim 55, R. Emden opines that kevod ha-tzibbur is not offended when a lady is
separated from the gentlemens section by a fictional partition wherein the ladies section is situated in a smaller
chamber completely open to a larger chamber which houses the gentlemen. Such a partition is entirely geographic in
nature (being analyzed by the Talmud in Eruvin 92a-b as being effective to permit transportation of cargo on the
Sabbath), and is certainly neither a kinaesthetic nor a visual barrier. Since R. Emden has equated kevod ha-tzibbur
with the requirement for the synagogue partition, and R. Emden has also harmonized a geographic barrier with
kevod ha-tzibbur, it appears that in general R. Emden envisages the mitzvah of the synagogue partition as being
one that can be fulfilled through a geographic barrier alone.
It is noteworthy in this regard that the gemara in Pesachim 6a requires only a ten handbreadth partition
between oneself and a gentiles chametz that is in ones house on Passover, not a kinaesthetic barrier or a visual
barrier. Perhaps this is a support to the geographic barrier camp. Another support might potentially be adduced from
the gemara in Sukkah 7a-b, where Rava introduces the chiddush that although a sukkah normally requires three
walls to be kosher, on the Sabbath of Sukkot one may rely upon pasei beiraot covered by skakh or on a mavoi
mefulash that is adorned by a lechi and is covered with skhakh (notwithstanding the absence of three proper walls in
either of those cases). The rationale is one of migo. Namely, since the walls are good enough to serve as mechitzot
for the Sabbath, they are also good enough to serve as walls for a sukkah. Perhaps one could argue that, mutatis
mutandis, a ten-handbreadth partition suffices in a synagogue for prayer, since (migo) a ten-handbreadth high
mechitzah is sufficient for the laws of domains on the Sabbath, the architecture of a sukkah or a maakeh and the
planting of kilayim. [To this effect, see R. Shimon ben Tzemach Duran, Tashbetz III, no. 37 (s.v. Ha-Ramban), who
extrapolates from the migo of Sukkah 7a to a novel context. Namely, Tashbetz argues that the migo justifies
slaughtering an animal for a dangerously ill patient on the Sabbath, even though Sabbath desecration could be
entirely avoided by feeding the patient carrion instead. Cf. also R. Ovadiah Yosef, Shut Yabia Omer X, Orach
Chaim no. 55, kovetz hearot ve-hearot al Shut Rav Pealim chelek aleph, sec. 27, for a discussion of whether one
can extrapolate from the migo of Sukkah 7a to other contexts.]
31

This position is also espoused by R. Leib Baron, Birkat Yehudah no. 5; and the members of Kollel Eretz Chemdah
(founded by R. Shaul Yisraeli), Shut Bemareh ha-Bazak I, no. 16. [However, R. Baron adds halakhah ve-ein
morin ken. Namely, considerations of policy for the sake of advancing the congregations spiritual welfare dictate
that one not simply be satisfied with an eighteen-handbreadth high barrier. Rather, one should implement a visual
barrier {corresponding with position (iii) outlined further in the text}, as a matter of practical policy. {For an

31

In a subsequent and cryptic responsum (Orach Chaim IV, no. 29), R.

Feinstein permits small windows with apertures of three inches or less.
Although R. Feinstein never explains why this is so, the reason appears to be
that an aperture of three inches or less is insufficiently large to admit ones
hand. After all, in Orach Chaim I, no. 136, R. Feinstein defines a cubit as
being 21.25 inches, which would make a handbreadth equal 3.54 inches.32
elaboration of the concept halakhah ve-ein morin ken, see R. J. David Bleich, Contemporary Halakhic Problems IV
(KTAV Publishing, 1995), pp. xv-xvii.}]
R. Aryeh Zev Ginzberg, Shut Divrei Chakhamim, Orach Chaim no. 127, quotes R. Jacob Kamenetzky as
ruling that there is no permission whatsoever to reduce [the synagogue partition] to less than the measure of the
Gaon R. Moshe Feinstein. Additionally, R. Michel Shurkin reports that R. Feinsteins position was accepted by R.
Reuven Grozovsky (Mishpachah magazine, 26 Adar I, 5771, p. 56 [-my thanks to Albert Gabizon for this source]).
It seems to this writer that a novel proof may be adduced in favour of the kinaesthetic barrier theory from
the Mishnah Berurah and the Arukh ha-Shulchan in their respective treatments of Shulchan Arukh Orach Chaim
55:14. The Shulchan Arukh rules that a solitary individual who is separated by a partition from nine other gentlemen
may combine with them to form a quorum, provided that there is a window through which the solitary individuals
face can be seen by the others. Mishnah Berurah (52) deduces from this that in the case that a solitary gentleman is
located in the ladies section of the sanctuary, and is separated from the other nine individuals [who are located in
the gentlemens section] by the synagogue partition, yet his face is visible to the other gentlemen from a window in
the partition, he can combine with them to form a quorum. The Mishnah Berurah continues, however, that it is
preferable for the gentleman to descend from the ladies section if he can easily do so, and thereby join his nine
colleagues in the gentlemens section of the synagogue. By contradistinction, Arukh ha-Shulchan (20) emphatically
dismisses the possibility of combining a gentleman located in the ladies section. The Arukh ha-Shulchan claims that
the Shulchan Arukh only countenances synthesizing the outlying Jew with the inside nine when the outlying Jew is
literally outdoors, i.e. in the street or in the courtyard immediately adjacent to the synagogue, and is peering through
the window. But when the outlying Jew is in a separate building, which is effectively the case when he is situated in
the ladies section, his peering through the window in the ladies section is inadequate to combine him with the other
nine gentlemen.
Seemingly, these remarks of the Mishnah Berurah and the Arukh ha-Shulchan reveal that they both
understood the nature of a synagogue partition to be one in which the faces, and only the faces, of people on the
other side are visible. [Mishnah Berurah and Arukh ha-Shulchans understanding of the ladies section is seemingly
at stark variance with Mor u-Ketziahs view (also elucidating Shulchan Arukh Orach Chaim 55:14) discussed
supra, note 30.] This apparently serves to vindicate the position of R. Moshe Feinstein. [See, however, the final
paragraph of infra, note 35, for a potential deflection of this proof.] For further discussion of Arukh ha-Shulchans
position, see infra, note 44.
32

I am grateful to R. Dovid Rothschild for bringing this point to my attention.

In that responsum, R. Feinstein further suggests that perhaps one should be stringent in a place where it
generates a stringency [to consider] a cubit as 23 inches, and any more in my humble opinion there is no need to
be stringent. Nevertheless, for the measurement of a mikveh it is worthy to be stringent to consider a cubit as 24
inches. And, in the essence of the law, the measurement of 21.25 inches is the correct measurement, whether for
leniency or for stringency."
For a list of twenty-six other mathematical calculations as to the size of a handbreadth compiled by R. J.
David Bleich, see pp. 97-99 of Tradition 38:4 (Winter 2004). Incidentally, it seems to this student that the largest
two measurements among the list presented by R. Bleich (viz. that of Shut Chatam Sofer, Orach Chaim no. 181 and
the Tosfot Yom Tov to Tractate Peah 6:6) may be neglected for purposes of practical halakhah. After all, R.
Feinstein himself (loc. cit.) suggests that the zoll measurement in the time of the Chatam Sofer may have been
smaller than its equivalent in contemporary German measurements. And the Tosfot Yom Tov in question seems to
have been focusing upon mass rather than volume, and was operating with a liquid possessing a density greater than
that of water. In an oral communication with this student, R. Bleich acknowledged the possible plausibility of this
students thesis, such that the largest credible handbreadth for purposes of practical halakhah (when it results in a
stringency) would become that of R. Shmuel Salant cited by the Chazon Ish (Orach Chaim 39:5), viz. 10.0 cm [=
3.937 inches].
[Presumably, however, that is to say all purposes of practical halakhah other than the architecture of a
mikveh, where R. Feinstein (cited in the second paragraph of this footnote) advocates an exaggerated cubit size of 24

32

Thus, it is impossible (according to R. Feinsteins reckoning) for a hand to

traverse an aperture of three inches or less. In any event, it is interesting to
note that even this leniency (viz. an aperture of three inches or less) is
discouraged by R. Feinstein if the congregation is composed of those who
fear Ha-Shem Yitbarakh, and those who are Bnei Torah.
Thus, it emerges that R. Feinstein disallows the employment of lavud
for purposes of an eighteen handbreadth high barrier. Indeed, it is only logical
for R. Feinstein to disallow the application of lavud, since, if lavud could be
applied, then gud asik mechitzata should also be applied,33 in which case a tenhandbreadth barrier would suffice in the first place! The very nature of R.
Feinsteins demand for an eighteen-handbreadth high partition ipso facto
means that lavud cannot be invoked. Obviously, then, the eighteen
handbreadths of height must be so solid that motion across by a hand is
impossible. The most R. Feinstein would ever allow is an aperture of three
inches or less, and even that is to be discouraged if the congregation is one
which is spiritually elevated.
Nevertheless, R. Feinstein introduces a leniency into the kinaesthetic
barrier camps equation in Orach Chaim III, no. 23, where he observes that
nowadays a five-foot high barrier suffices to prevent moving ones hand across
the partition, given the contemporary stature of human beings. Therefore, he
directs that one should not protest a synagogue which relies on a five-foot high
mechitzah, even though five feet equals slightly less than his preference for
eighteen handbreadths. In his next responsum (Orach Chaim III, no. 24), R.
inches, meaning a handbreadth of 4 inches (=10.16 cm). The reason why an exaggerated standard of cubit should be
employed for the architecture of a mikveh is beyond the scope of this essay. It should also be noted that R.
Feinsteins responsum defining the measurement of a cubit (Iggerot Mosheh, Orach Chaim I, no. 136) was written
in 1957, before the United States refined the measure of an inch to meet international standards. See
<http://www.ngs.noaa.gov/PUBS_LIB/FedRegister/FRdoc59-5442.pdf>. However, as becomes evident from that
source, the difference created by the United States refinement of the inch to meet international standards (which
occurred in 1959) is so negligible that it is totally irrelevant for purposes of synagogue architecture, though it will
render a difference for mikveh architecture (where the quantities of water are enormous). Namely, the inch in 1957
(when R. Feinstein wrote his responsum) was defined as 2.540005 cm. In 1959, the inch became redefined as 2.54
cm. This produces no practical difference for the dimensions of a synagogue partition. However, for the mikveh,
there is a difference. Since a mikveh requires three cubic cubits of water (-an enormous quantity) as per the gemara
in Eruvin 4b, this means the larger (pre-1959) inch should be employed. As a cubit is defined by R. Feinstein (for
purposes of stringency in the context of a mikveh) as 24 inches, this means 24*(2.540005) = 60.96012 cm. A cubic
cubit would then represent this number raised to the power of three, namely (60.96012)^3 = 226,536.1105 cc. This
result would then need to be multiplied by three (since a mikveh requires three cubic cubits of water), yielding
679,608.3315 cc as the minimum required volume for a mikveh. (If one were not aware of the inch-definitional
change that occurred in 1959, and one mistakenly applied a cubit of 24 inches in inches as they are defined post1959, this would result in the following erroneous calculation: 24*2.54 = 60.96 cm. Then, (60.96)^3 = 226,534.7727
cc. Then, multiplying this result by three, this yields 679,604.3181 cc. This represents a halakhically significant
error of 4.0134 cc (-presumably more than enough to trigger the proverbial arbaim seah chaser kortov fact
pattern of which the mishnah speaks in Mikvaot 7:2).]
Cf. the subsequent republication of the material of Tradition 38:4 in Contemporary Halakhic Problems VI,
p. 211-214, which indeed acknowledges a variety of possible interpretations for the measurement of a zoll.
33

Lavud dictates that gaps less than three handbreadths in size are virtually filled. Gud asik mechitzata dictates that
any ten-handbreadth high wall virtually extends upward indefinitely, ad coelum. Each of these two principles
represents a Halakhah le-Mosheh mi-Sinai, as per the gemara in Eruvin 4b.

33

Feinstein even suggests the further leniency that perhaps fifty-eight inches
suffices to accomplish the kinaesthetic barrier as well.34 But under no
circumstances will R. Feinstein tolerate a partition less than fifty-eight inches
in height.
(c)

In his Shut Divrei Yoel, Orach Chaim no. 10, R. Joel Teitelbaum takes issue
with R. Feinstein, and submits that the partition must be a visual barrier.
Thus, it must be opaque and higher than any human being present.35 However,

34

Surprisingly, in his subsequently published volume of Orach Chaim IV, R. Feinstein features three responsa
regarding a synagogue partition (nos. 30-32) which mention sixty inches as the baseline requirement, without any
reference to his previously published suggestion that fifty-eight inches might suffice. The matter would appear to
require further analysis, but in any event, the practical application of this question is clearly open to empirical
resolution, since in all of his responsa R. Feinstein definitively rules that the minimum height of the synagogue
partition is that which exceeds the shoulder height of the ladies in synagogue. Thus, on any given day in synagogue,
one could simply compare the height of the partition to the height of the tallest ladys shoulders, to assess whether or
not the synagogue partition is valid according to R. Feinstein.
Actually, it appears clear that the manner in which R. Feinstein is defining a kinaesthetic barrier is that the
partition must exceed the shoulder height of at least one of the two populations on either side of the partition, be it
the ladies or the gentlemen. R. Feinstein only speaks of exceeding the ladies shoulder height because he envisages a
society in which the gentlemen are taller than the ladies. But in a reverse scenario, where the ladies are taller than
the gentlemen, it would concomitantly suffice for the partition to exceed the gentlemens shoulder height. In any
event, R. Feinstein assumes, based on the socio-physiological data he collected, that a five-foot high partition will
always exceed the shoulder height of one of the two populations. And possibly the same may even be true for a
fifty-eight inch high partition. But the ultimate practical halakhah for any given synagogue on any given day will
depend on the empirical reality given the congregants assembled in the synagogue at that moment. If teams of
gargantuan basketball players suddenly enter the synagogue, a taller partition will obviously be needed to serve as a
kinaesthetic barrier.
The reason it suffices for a kinaesthetic barrier to merely exceed the shoulder height of one of the two
populations, and it is not necessary for the kinaesthetic barrier to exceed the shoulder height of both populations,
apparently originates with an axiomatic presumption of R. Feinstein regarding the fundamental nature of reverence
in the Sanctuary. Reverence is achieved in a socially awkward situation. When people congregate but are separated
by a partition that blocks the stature of one of the two populations to the extent of universally exceeding the shoulder
height of that population, a socially awkward situation is ipso facto created. The fact that the other population is not
incarcerated (as it were) in the same manner does nothing to dispel the awkwardness. [I am grateful to both R.
Yonah Rosner and Eliezer Turgel for bringing this valuable insight to my attention.]
Since it is obviously inconvenient to suddenly discover in the midst of services that the synagogue partition
is disqualified on account of the unexpected presence of tall people, it would seem prudent to this writer for a
synagogue that follows the kinaesthetic barrier camp to avoid reliance upon a fifty-eight inch high partition, and
rather opt for a sixty inch (or even better yet, an eighteen handbreadth) high partition, so that the synagogue will be
capable of accommodating unusually tall people.
It should also be noted that, as described in Section B above, there is a dispute among the poskim whether
the demographic separation that is orchestrated by the synagogue partition must be absolute. According to Tosafot,
R. Eliezer Silver, the Bnei Vanim and one version of the Iggerot Mosheh, it is permissible for one or two ladies to be
present in the gentlemens section during services [and vice-versa]. Accordingly, in a synagogue whose kinaesthetic
barrier is constructed to exceed the shoulder height of the ladies, the presence of one or two unusually tall ladies
would not disqualify the synagogue partition. And likewise, in a synagogue whose kinaesthetic barrier is tailored to
exceed the shoulder height of the gentlemen, the presence of one or two unusually tall gentlemen would not
disqualify the synagogue partition.
35

This position is also espoused by R. Elijah Meir Bloch (whose responsum is published by R. Chanania Yom Tov
Lipa Deitsch on pp. 53-59 of the latters Taharat Yom Tov VI); R. Raphael Blum, Tal Hashamayim (Hadar
Linotyping and Publishing, 1958), introduction, p. 28; R. Yosef Zvi Dushinsky, Shut Maritz Dushinsky I, no. 19;
R. Elijah Guttmacher (whose responsum is published on pp. 41-43 of the Hebrew appendix to the 1959 edition of
Baruch Litvins The Sanctity of the Synagogue); R. Israel David Harfenes, Shut Vayevarekh David, no. 121; R.

34

R. Teitelbaum concedes that it is permitted (and indeed appropriate) for the

ladies to be capable of seeing the gentlemen, just like in the Temple, and so a
one-way-glass partition is in order.36
Menasheh Klein, Shut Mishneh Halakhot VII, no. 12; R. Aharon Kotler, Shut Mishnat Rabbi Aharon, Orach
Chaim no. 13 (penultimate paragraph); R. Nathan Neta Halevi Landau, Shut Kenaf Renanah I, no. 9; R. Hillel
Lichtenstein, Shut Beit Hillel, no. 104; R. Shalom Mashash, Shut Shemesh u-Magen III, nos. 28 and 60; R.
Simchah Rabinowitz, Piskei Teshuvot to Mishnah Berurah II, Orach Chaim no. 151, sec. 4; R. Gershon Rosenbaum,
Shut Meshiv Devarim I, no. 44; R. Chaim Schachnowitz (cited supra, note 15); R. Moshe Schick, Shut Maharam
Shik, Orach Chaim no. 77; R. Menachem Mendel Schneersohn, Shaarei Halakhah u-Minhag, Orach Chaim I, no.
92; R. Yom Tov Halevi Schwarz, Maaneh la-Iggerot nos. 18-20 and 63; R. Betzalel Zev Shafran, Shut ha-Rabaz
I, no. 19; R. Benjamin Silber, Shut Az Nidberu XII, no. 48 and XIII, nos. 9, 53 and 67; R. Chaim Sofer, Shut
Machaneh Chaim III, no. 10; R. Yitzchak Zvi Sofer, Mispar ha-Sofer I, no. 6; R. Menachem Steinberg, Shut
Machazeh Avraham, no. 26; R. Moshe Stern, Shut Beer Mosheh IV, no. 147, sec. 29; R. Shlomo Yehudah Tabak,
Shut Teshurat Shai I, no. 125; R. Eliezer Yehudah Waldenberg, Shut Tzitz Eliezer VII, no. 8 and XX, no. 7; R.
Benjamin Aryeh Hakohen Weiss, Shut Even Yekarah III, no. 166; and R. Yisrael Weltz, Shut Divrei Yisrael,
Orach Chaim no. 63. Posthumously published letters attributed to Chazon Ish, to R. Joseph Mashash and to R.
Yitzchak Yaakov Weiss appear in the Or Yisrael journal (Tevet 5759, p. 119), in the Otzar ha-Mikhtavim III of R.
Mashash (no. 1766) and in the Likutei Teshuvot Minchat Yitzchak (no. 14), respectively, which champion this
position as well. See also R. Pinchas Avraham Meyers, Shut Nachalat Pinchas I, no. 9, who publishes an
additional posthumous letter of R. Yitzchak Yaakov Weiss, [one that is co-signed by R. Meir Bransdorfer,] to the
same effect. [According to R. Gil Student on pp. 219-220 of his Posts Along the Way, this is also the ruling of R.
Azriel Hildesheimer published in Gessammelte Aufaetze (Frankfurt a. M., Hermon, A.G., 1923), p. 26.]
A variation of this position is offered by R. Malkiel Zvi Halevi Tannenbaum, Shut Divrei Malkiel V, no.
18. R. Tannenbaum believes that reverence in the Sanctuary is achieved when either the ladies section is located on
a balcony (even though it is visible), or if located on the same level plane as the gentlemens section when it is
obscured by a visual barrier. Thus, in effect, R. Tannenbaums approach serves as a compromise between the
kinaesthetic barrier and visual barrier camps. Without citing R. Tannenbaum, that position is independently
formulated by R. Moshe Sternbuch, Teshuvot ve-Hanhagot I, no. 162.
If R. Tannenbaum and R. Sternbuchs joint approach is accepted, then the putative support to the
kinaesthetic barrier theory that is gleaned from the words of the Mishnah Berurah [as per supra, note 31] is thereby
deflected, since the Mishnah Berurah was clearly only speaking of a balcony situation. Although support in favour
of the kinaesthetic barrier camp was also marshalled from the Arukh ha-Shulchan [supra, note 31], one could
perhaps argue that the Arukh ha-Shulchan also only envisaged a balacony situation although this latter point is not
entirely clear. [For further discussion of Arukh ha-Shulchans position, see infra, note 44.]
36

R. Teitelbaums concession to this effect is inconsistent with the Teshurat Shai that is cited supra, note 35, but is
supported by the Mishneh Halakhot (also cited supra, note 35). R. Teitelbaums sources are certainly convincing in
making the case that even according to the visual barrier camp, it should be permitted for the ladies to be capable of
beholding the gentlemens section (contrary to the Teshurat Shai, with all due reverence manifest before the
Teshurat Shai). R. Teitelbaum adds that a synagogue should, in fact, make this capacity available to the ladies, so as
not to create a chumra de-atei lidei kula (i.e. an unreasonable stringency that wreaks havoc with Orthodox life).
It seems to this student that another proof that may be marshalled to authorize the ladies to see the
gentlemens section emerges from R. Chaim Joseph David Azulais description of the synagogues he frequented
when he visited France in 1777. See supra, note 1.
Similarly, the posthumously published letter attributed to Chazon Ish (referenced supra, note 35) explicitly
states that the partition for the ladies sanctuary needs to be in a manner such that it is impossible to see from the
gentlemens sanctuary to the ladies sanctuary, but it is possible to orchestrate the partition from wicker-work cloth
(begged maaseh chori) [containing] fine perforations, such that it is possible to see from the ladies sanctuary to the
gentlemens sanctuary.
In an impressive discovery, R. Yair Hoffman (writing on Feb, 12, 2012 at <http://matzav.com/mechitzosin-shul-too-high-and-too-low>) demonstrates that even Teshurat Shai who holds that the synagogue partition must
prevent ladies from seeing the gentlemen must perforce concede that the ladies be capable of seeing the Sefer
Torah when it is raised. After all, Shulchan Arukh Orach Chaim 134:2 rules explicitly He [the individual who
raises the Sefer Torah] shows the writing to the entire congregation standing to his right and to his left, and he turns
it in front of him and behind him - for it is a mitzvah upon all the gentlemen and ladies to see the words and to

35

Most impressively, a newly discovered manuscript, published as Shut

Rabbi Akiva Eger ha-Chadash IV, Orach Chaim no. 13, sec. 5, attributes this
position to R. Akiva Eger. That responsum is truly remarkable both because it
was written only four years after the Chatam Sofer's original responsum
canonizing the mitzvah obligation of a syangogue partition (Choshen Mishpat
no. 190) and because R. Akiva Eger is none other than the father-in-law of the
Chatam Sofer. Assuming that this newly discovered manuscript is accurate, R.
Akiva Eger's words support R. Teitelbaum.37
It seems to this writer that an adjudication of this dispute is virtually impossible, for each
camp presents an equally credible piece of evidence in its favour. Each of the three camps is to
be commended for having illuminated a legitimate approach to the Chatam Sofers original
responsum.
The visual barrier camp correctly points to the practice among Jews since time
immemorial to build a visual barrier in the synagogue. This sociological norm, it is cogently
argued, constitutes a sacrosanct mesorah, and must have been the partition to which the Chatam
Sofer referred. Apparently reinforcing this thesis are four Rishonim who specifically identify a
visual barrier as being the goal in the construction of the gallery in the Temples external
courtyard: the Rambam in his Peirush ha-Mishnayot to Sukkah 51a, the Piskei Rid in his
commentary on the gemara in Sukkah 51b, the Meiri in his commentary upon the gemara in
Sukkah 51b, and the Mordekhai to Tractate Sanhedrin, no. 684. And there is even a fifth Rishon
who according to a newly published manuscript espouses this position: the Rosh, cited by R.
Chaim Benveniste in the latters Chamra ve-Chaye manuscript for Sanhedrin 20a, s.v. makom.
R. Yom Tov Lipman Heller, in his Tosfot Yom Tov commentary to Sukkah 51a, also adopts this
approach.38
The other two camps, however, correctly observe that the Rambam (Hilkhot Lulav 8:12)
conspicuously neglects to mention obstruction of vision as a necessary specification for the
partition constructed in the courtyard, insisting only that the purpose of that partition was to

bow and say Ve-Zot ha-Torah etc. Torat Ha-Shem Temimah etc. If the ladies are on the same synagogue floor as
the gentlemen, this would mean for Teshurat Shai that the opaque partition just barely exceed the height of all
the gentlemen present, such that when the Sefer Torah is raised it [though not the gentlemen] will be visible to the
ladies. [On the other hand, if the ladies are on a synagogue balcony, it seems impossible to envisage how the
partition could stop the ladies from seeing the gentlemen but not the Sefer Torah. This is all the more reason to
favour the position of R. Teitelbaum permitting and indeed encouraging a partition which allows the ladies to
see the gentlemens section. Cf., however, Az Nidberu XIII, no. 67, where R. Benjamin Silber parenthetically claims
apparently anticipating R. Hoffmans discovery that Teshurat Shai can be defended by creating small holes
which prevent the ladies from intentionally looking at the gentlemen but which allow the ladies to see the raised
Sefer Torah.]
37

However, in a telephone conversation with this student on January 31, 2008, R. J. David Bleich noted that R.
Akiva Egers remarks, in context, could be plausibly construed as enunciating a policy that was encouraged for the
Jewish residents of Posen rather than represent an actual halakhic prescription. R. Akiva Egers words are
posthumously taken from the communal ledger of Posen (presumably reflecting oral comments that R. Eger offered
at a community council meeting), rather than from any actual responsum that he ever wrote.

38

R. Mordechai Willig further claims that a visual barrier is required by virtue of the Rema in Shulchan Arukh
Choshen Mishpat 35:14. His proof will be discussed infra, note 60.

36

prevent a mixture.39 Moreover, since the pious gentlemen at the Rejoicing of the Water Drawing
were dancing in the middle of the external courtyard as part of the festivities, they surely were
capable of seeing the balcony, a fact that was accepted by the Sages with equanimity.40
39

R. Teitelbaum counters (op. cit., sec. 6), based on the Chiddushei ha-Ramban at the commencement of Tractate
Eruvin, that optics can also be described with the Hebrew term mixture, as exemplified by the concept of eiruvei
techumin, as well as its very appellation. A person places his food outside the city on the eve of the Sabbath or
festival, and even though he subsequently returns to the city prior to the onset of the holy day because he is
looking toward the food, the location of the food establishes his virtual Sabbath or festival residence. A similar
employment of the Hebrew term mixture is offered by Tur Orach Chaim no. 240.
R. Teitelbaum further remonstrates (op. cit., sec. 1) that mixture cannot possibly mean as the geographic
barrier and kinaesthetic barrier camps alternately understand, because the need to avoid such mixture already exists
on account of the codification in Rambam, Hilkhot Yom Tov 6:21 and Shulchan Arukh Orach Chaim 529:4 requiring
the Beth Din to dispatch sentries throughout the community on holidays in order to separate ladies and gentlemen.
Surely, surely, reasons R. Teitelbaum, in the Temple precinct itself the headquarters of the ultimate Beth Din (viz.
the Sanhedrin) this law was respected. Thus, a geographic and/or kinaesthetic barrier already existed thanks the
sentries stationed throughout the Temple, and the only possible justification for the Sages to override the Temple
architecture was to add a visual barrier at the Rejoicing of the Water Drawing.
Actually, with all due reverence exhibited before the great luminary R. Teitelbaum, it seems to this student
that his latest argument is refuted by several considerations: (a) The existence of sentries is not the same as a
physical barrier. A human being may occasionally err, but a physical barrier will not err. Thus, it could be that the
Sages appreciated a need, for purposes of Leviticus 19:30, to provide a full-proof geographic barrier or kinaesthetic
barrier, without having to rely on human sentries. Ergo, there is no compelling reason to think that avoidance of
mixture means to construct a visual barrier. (b) It is not even clear that the purpose of the sentries described by
Rambam and Shulchan Arukh (to which R. Teitelbaum appeals) is to create any sort of barrier altogether. As will be
explained infra, Section F, the simple meaning of the rabbinic law codified by Rambam and Shulchan Arukh is that
the sentries must prevent a certain type of yichud, and nothing more. Thus, there was not even a geographic or
kinaesthetic barrier in the Temple until the balcony was constructed. Ergo, there is no compelling reason to think
that avoidance of mixture means to construct a visual barrier. (c) As will be further explained in Section F,
according to the Vilna Gaon, the very source for the obligation for a Beth Din to dispatch sentries actually
originates from the decision of the Sages to construct the Temple balcony. If so, it is circular reasoning for R.
Teitelbaum to assume that there must have been sentries stationed in the Temple before the balcony was
constructed. Ergo, there is no compelling reason to think that avoidance of mixture means to construct a visual
barrier.
R. Schachnowitz (cited supra, note 15) alternatively suggests that there were two renovations effectuated in
the Temple courtyard. One, being described by Rambam in Hilkhot Lulav 8:12 and (as codified by the Rambam)
being timed for the eve of the festival, concerned the building of a balcony to prevent mixture. The second, being
described by Rambam in the Peirush ha-Mishnayot and being timed (as canonized by the mishnah) for the first night
of Chol ha-Moed, concerned guaranteeing the existence of a visual barrier. How so? R. Schachnowitz argues that
the balcony itself could have been used by gentlemen, with ladies congregating on the floorspace of the courtyard.
Under such circumstances, mixture would have been avoided, all the while without providing a visual barrier. It was
specifically on the first night of Chol ha-Moed that the Sages announced that the balcony is reserved for the ladies
and that the gentlemen must congregate on the floorspace of the courtyard, guaranteeing the avoidance of mixture
plus the existence of visual barrier. [I am grateful to Dr. Eliav Shochetman for bringing this source to my attention.
Thus, R. Schachnowitz implicitly accepts the position of Divrei Malkiel and Teshuvot ve-Hanhagot presented supra,
note 35.] However, R. Schachnowitz never explains why Rambam in the Mishneh Torah refused to mention the
second renovation. Additionally, it is not clear according to R. Schachnowitz thesis what the first renovation
accomplished from the time of the eve of Sukkot until the first night of Chol ha-Moed. Was it indeed permissible
for ladies and gentlemen to arrive at the Temple on the first day of Sukkot with gentlemen congregating on the
balcony above and ladies congregating on the floorspace? If so, then why did the Sages insist on a reversal of
positions at the Rejoicing of the Water Drawing? If not, then what did the first renovation serve to accomplish?

40

R. Teitelbaum counters (op. cit., secs. 3-4) that either (a) there was indeed a visual barrier arranged along the
entire length of the balcony, and that this may be the meaning of the Rambams employment of the term shekufin
atumim in his commentary to the mishnah, Middot 2:5 [particularly in light of the way the term shekufim atumim
as it actually appears in I Kings 6:4 is elucidated by the gemara in Menachot 86b], or (b) a visual barrier was not

37

Accordingly, there is no need for a visual barrier, argue these two camps. Rather, as for how
avoidance of mixture is to be defined, the kinaesthetic barrier camp understands the narrative
necessary because the pious individuals at the Rejoicing of the Water Drawing were careful to eschew looking
upwards.
Nevertheless, with all due reverence to R. Teitelbaum, it seems to this student that the second rejoinder
constitutes a non sequitur, since the halakhic issue at hand is not the phenomenology of how worshippers
subjectively conduct themselves, but rather the ontology of how a Sanctuary must be objectively built. If it was
acceptable at the Rejoicing of the Water Drawing for the edifice to be built such that gentlemen could theoretically
see the balcony, the same should follow for a synagogue. R. Teitelbaums first rejoinder, on the other hand, is
certainly plausible, although the gemara never mentions the existence of a visual barrier arranged along the length
of the balcony. To that effect, it should be noted that R. Teitelbaums attempted proof from the Rambams shekufin
atumim comment was already neutralized by R. Simchah Halevi Bamberger in his Shut Zekher Simchah, no. 19,
well before R. Teitelbaum even began to write on this topic. R. Bamberger cogently observes that the text of the
Rambams commentary to the mishnah which we possess is only a translation into Hebrew of the original Arabic,
and in the original Arabic the term shekufin atumim does not appear. Thus, it is actually a misnomer, and so no
precedent can be marshalled from Menachot 86b. [See, however, R. Hillel Lichtenstein in his Shut Beit Hillel, no.
104, who advances the creative argument that the existence of a visual barrier is actually prescribed by the mishnah
in Sukkah 45a. There, R. Eliezer reports that at the quotidian conclusion of the Aravah ritual that took place in the
Temple on each day of Sukkot, participants in the celebration would verbally dedicate the allegiance of their visual
faculties to the Holy One, blessed Be He. R. Lichtenstein (perhaps somewhat fancifully) claims this to mean that the
Jews participating in the Aravah celebration were noting the existence of a visual barrier that obscured the balcony.
If R. Lichtensteins inference is accepted, then R. Teitelbaums first rejoinder is strengthened. However, it must be
noted that R. Eliezers opinion is itself disputed by the anonymous sage of the mishnah in Sukkah 45a, according to
which R. Lichtensteins inference obviously evaporates.]
Alternatively, if one accepts the thesis of the Divrei Malkiel and Teshuvot ve-Hanhagot (supra, note 35) [as does, for instance, R. Schachnowitz (supra, note 15)], the case of the dancing pious gentlemen is no proof
whatsoever for the kinaesthetic barrier and geographic barrier camps, since a visual barrier is only required when the
ladies and gentlemen occupy the same level, but not when they are altitudinally separated through the existence of a
balcony (as occurred in the Temple).
However, it must be noted that the Divrei Malkiel and Teshuvot ve-Hanhagots position is evidently
rejected by R. Nathan Neta Halevi Landau, Shut Kenaf Renanah I, no. 9. R. Landau cogently observes from the
mishnah in Middot 2:3 that there were twelve steps leading from the Temple Mount to the external courtyard, which
each step possessing a half-cubit elevation. Thus, there was actually a six-cubit altitudinal difference already in
place between the Temple Mount and the external courtyard even before the Sages constructed the balcony.
According to the gemara in Sukkah 51b, the ladies and gentlemen were already separated, with the ladies on one
level and the gentlemen one another, even before the Temple balcony was constructed. I.e., originally the ladies
were in the external courtyard and the gentlemen were on the Temple Mount, and then the positions were switched
with the ladies on the Temple Mount and the gentlemen in the external courtyard. The fact that the Sages
nevertheless subsequently insisted on overriding I Chronicles 28:19 to build the Temple balcony demonstates that
the six-cubit altitudinal difference was inadequate. And the reason for this inadequacy, argues R. Landau, is because
one could see from one level to the other. The entire purpose of the balcony was not to create an altitudinal
difference between the ladies and gentlemen [-because that already existed from before], but rather to create total
invisibility. Ergo, R. Landau believes that the balcony was indeed built with an accompanying visual barrier, and so
must it be for posterity.
Apparently, to defend the Divrei Malkiel and Teshuvot ve-Hanhagots interpretation, one would have to
submit that whichever population was situated on the Temple Mount (i.e. originally the gentlemen, and later the
ladies) enjoyed the ability to ascend the steps until immediately opposite the entranceway to the external courtyard.
And this itself was incompatible with reverence for the Sanctuary. By contradistinction, if the ladies are above on a
balcony, and there is no staircase inside the Sanctuary that leads to the ladies section, then reverence is achieved
even if the ladies are visible. A similar answer to the Kenaf Renanah would have to be offered on behalf of the
kinaesthetic barrier camp: The fact that whichever population which was situated on the Temple Mount enjoyed the
ability to ascend the steps until immediately opposite the entranceway to the external courtyard itself essentially
abrogated the concept of a kinaesthetic barrier. It was only once a balcony was constructed with an accompanying
access staircase totally outside the Sanctuary that a true kinaesthetic barrier was achieved. As for the geographic
barrier camp, its only possible answer to the Kenaf Renanah emerges from the immediately following note.

38

recorded in Sukkah 51b to be declaring that a standard geographic barrier is inadequate, since the
Temples external courtyard was always separated from the surrounding Temple Mount by a
formidable wall (which assuredly was more than sufficient to constitute a geographic barrier),
and yet the Sages realized that this was inadequate as a divider for purposes of achieving
reverence in the Sanctuary, and that only a balcony would suffice. The defining feature of a
balcony is that it serves as a kinaesthetic barrier.41 42 By contradistinction, the geographic barrier
41

R. Henkin (Bnei Vanim I, pp. 223-224, in the footnotes) endeavours to deflect this argument of R. Feinstein by
claiming that although a geographic barrier per se suffices, nevertheless the wall between the external courtyard and
the Temple Mount was inadequate because (a) the population that was supposed to remain on the Temple Mount
would push in through the gates into the courtyard in order to see better (thereby contradicting the entire goal of
separation), and so to prevent them from doing so a balcony was needed; and/or (b) latecomers or early retirees from
the population that was supposed to remain in the external courtyard would of necessity have to walk through
the Temple Mount area, where the opposite population had gathered, thus leading to a mixture of both populations
on the outside Temple Mount (thereby contradicting the entire goal of separation). In order to prevent any sort of
mixture on the Temple Mount, a balcony had to be separately designated for the ladies, so that ladies would
approach the external courtyard from a completely different direction than the gentlemen, thereby eliminating the
possibility of any mixture on the Temple Mount.
With all due reverence manifest before R. Henkin, it seems to this student that his two explanations can be
questioned. For if either (or both) of those explanations represent the reason the Sages were dissatisfied with the
original architectural arrangement at the Rejoicing of the Water Drawing, a balcony would have been totally
unnecessary. All that would be needed would be the construction of a geographic barrier on the Temple Mount,
creating separate pathways for ladies and gentlemen. [As part of this scheme, a geographic barrier could have been
built at the external courtyard gateway outside which the ladies had gathered to congregate, to be locked from the
gentlemens side, so as to prevent ladies from pushing through.] After all, R.Feinstein demonstrates (Iggerot
Mosheh, Orach Chaim I, no. 39, pp. 96-97) that changes to the architecture on the Temple Mount are always
permitted. It is only within the courtyards (or holier areas) of the Temple complex that Tosafot to Zevachim 33a
prohibit architectural changes unless there is no other choice because of a mitzvah de-Oraita. Why, then, did the
Sages tamper with the architecture of the external courtyard by adding a balcony a renovation which could only be
countenanced in the absence of any other expedient when they could have renovated the Temple Mount (where
renovations are always permitted) and thereby avoid the problem?
This latter demonstration of R. Feinstein (viz. that changes to the architecture of the Temple Mount are
always permitted) itself requires elaboration. R. Feinstein orchestrates the demonstration in the context of his
analysis (already presented supra, note 8) of Maharshas position (-or what seems to be Maharshas position-) that
that there is no prohibition against tampering with the Temple blueprints when the purpose of the renovation is to
avoid a prohibition unrelated to the sacrificial service. R. Feinstein acknowledges that at first glance this thesis
of Maharsha enjoys support from the commentary of Rosh to the mishnah in Middot 2:3 [which as R. Feinstein
notes is endorsed by Kessef Mishneh to Hilkhot Beit ha-Bechirah 5:3] that the Soreg was built on the Temple
Mount for the purpose of rabbinically enclosing the area so as to permit carrying on the Sabbath. Yet, according to
Torah law, there was no need for such an enclosure; how then did the Sages override the Temple blueprints in order
to construct the Soreg? Seemingly, the answer must be that as per Maharsha architectural changes untelated to
the sacrificial service are permissible, even when unrelated to any mitzvah de-Oraita. Yet, continues R. Feinstein,
such an answer is untenable upon further examination, since the gemara in Chullin 83b applies the prohibition of
tampering with the Temple blueprints even to situations unrelated to the sacrificial service. [Of course, this analysis
of Chullin 83b is challenged by R. Henkin. See supra, note 8, and accompanying Appendix A, at length.] Therefore
R. Feinstein concludes that there must be no prohibition altogether against tampering with the architecture of the
Temple Mount (as distinct from the courtyards, which are considered part of the Temple complex, where the
prohibition indeed applies.) R. Feinstein explains that the sanctity of the Temple Mount is not as great as that of the
courtyards, and hence the difference.
Accordingly, since according to R. Feinsteins demonstration there is no prohibition against tampering
with the architecture of the Temple Mount, it emerges that if R. Henkin is correct in his two explanations (outlined
in the first parapraph of this footnote), then a geographic barrier could have simply been built on the Temple Mount,
creating separate pathways for ladies and gentlemen. [As part of this scheme, a geographic barrier could have been
built at the external courtyard gateway outside which the ladies had gathered to congregate, to be locked from the
gentlemens side, so as to prevent ladies from pushing through.] Yet, the Sages refused to do so. Instead, they

39

overrode the Temple blueprints and constructed a balcony. This casts a significant doubt upon the soundness of R.
Henkins two explanations of why a geographic balcony should suffice.
To elaborate further: how many entrances in fact existed to the external courtyard? R. Feinstein seems to
assume that there were multiple such entrances , as he refers to be-makom ha-shearim (Iggerot Mosheh, Orach
Chaim I, p. 98, ten lines from end of righthand column). Indeed, this arrangement is reflected in R. Zalman
Menachem Korens The Beit HaMikdash: The Temple and The Holy Mount (Shaar Press, Mesorah Publications,
2009), pp. 88-98, where four distinct gateways to the external courtyard are displayed: from east, from north, from
south, and by way of the Chamber Housing the Oils. The same arrangement (or at least three out of the four gates)
appears in the presentation illustrated by Yakov Yehudah at <http://www.dafyomi.co.il/midos/middos04.htm>. See
also Encyclopedia Talmudit, III, s.v. Beit ha-Mikdash, p. 229, which illustrates one gate from the east and one gate
from the south. Similarly, in R. Yisrael Ariels The Odyssey of the Third Temple (Jerusalem, 5753, translated and
adapted by Chaim Richman), there are distinct images of multiple gates to the external courtyard on pp. 20-21, 22,
33, 62-63, 79, 95 and 101. [N.B. Notwithstanding the title of the book, these images represent reconstructions of the
First Temple and Second Temple, thus supporting R. Feinsteins contention.] The external courtyard is also depicted
by the Temple Institute as possessing multiple gates at
<http://www.templeinstitute.org/calendar/holy_temple_calendar.htm>, again supporting R. Feinstein. If there were
at least two gates to the external courtyard, then a signficiant doubt can be cast upon the soundness of R. Henkins
two explanations, since (were R. Henkins claim correct) the Sages could have built a geographic barrier on the
Temple Mount, designating at least one gate for the ladies and at least one gate for the gentlemen. . [As part of this
scheme, a geographic barrier could have been built at the external courtyard gateway outside which the ladies had
gathered to congregate, to be locked from the gentlemens side, so as to prevent ladies from pushing through.] Yet,
the Sages refused to do so. Instead, they overrode the Temple blueprints and constructed a balcony. This casts a
significant doubt upon the soundness of R. Henkins two explanations of why a geographic balcony should suffice.
On the other hand, the Tiferet Yisraels diagram of the Temple (printed in his commentary on Tractate Middot and
also copied by Encyclopedia Talmudit, op. cit., p. 231a) illustrates only one gate to the external courtyard, from the
east. This is also the arrangement displayed by the Artscroll Mishnah Series volume on Tractate Middot (2nd
impression, 2009) and the Schottenstein Talmud volume on Meilah, Kinnim, Tamid & Midot (2nd impression,
2005). This is also the arrangement depicted on p. 41 of The Odyssey of the Third Temple (-at variance with other
diagrams displayed in that work, identified earlier in this footnote). If there was only one gate, R. Henkins two
explanations becomes credible, since the same gate would have had to serve the dual functions of admitting/exiting
the gentlemen as well as allowing ladies to congregate to see the festivities.
On the other hand, since as described supra, note 8 R. Henkin disagrees with R. Feinsteins entire
approach to the prohibition of orchestrating renovations to the Temple, R. Henkin would presumably see no reason
to distinguish between the Temple Mount and the Temple complex (unlike R. Feinstein who posits such a
distinction). Thus, R. Henkin would presumably counterrespond (to the refutation against R. Henkins two
explanations in this footnote according to the opinion that there were multiple gateways to the external courtyard)
that building a geographic barrier on the Temple Mount is no different than building a balcony in the airspace of the
external courtyard, and thus the Sages simply chose the latter option, as they felt it would provide a more optimal
vantage point for the ladies who would attend the Rejoicing of the Water Drawing. [And see also supra, note 18,
where it is suggested that since the Rosh provides an alternative explanation for the construction of the Soreg, there
may be a safek whether R. Feinsteins thesis that discretionary renovations are permitted on the Temple Mount is
correct, and hence a safek as to whether the refutation of R. Henkins two explanations in this footnote is correct.]
As such, R. Henkin would presumably declare that his two explanations are credible even if there were multiple
gateways to the external courtyard.
In any event, it seems to this writer that quite apart from R. Henkins two explanations the geographic
barrier camp might be independently defended by positing that perhaps reason the balcony was constructed was to
facilitate the admission for ladies for Hakhel, and not for the Rejoicing of the Water Drawing per se.
In other words, the geographic barrier camp might concede to R. Feinstein that from the perspective of
requiring a geographic barrier a renovation was perhaps unnecessary for the Rejoicing of the Water Drawing,
since a valid geographic barrier could have been created on the Temple Mount between the ladies and gentlemen.
By contradistinction, at the special Hakhel event, ladies and gentlemen must perforce have both congregated in the
external courtyard of the Temple. Since, within the floor space of the external courtyard of the Temple, no
geographic barrier exists, the Sages possessed no choice but to override the Temple architecture by constructing a
gallery in the airspace of the external courtyard.
The difficulty with this approach evidently arises from the fact that the construction of the gallery is
mentioned in the mishnah addressing the Rejoicing of the Water Drawing (Sukkah 51a), and not in the context of

40

the mishnah describing the mitzvah of Hakhel (Sotah 41a). Nevertheless, one could perhaps deflect the problem by
positing that seeing as the Rejoicing of the Water Drawing and Hakhel both commence on the first day of Chol haMoed Sukkot (the former being celebrated every year on Chol ha-Moed Sukkot and the latter being celebrated once
in seven years on Chol Ha-Moed Sukkot), the Sages built the balcony for the Rejoicing of the Water Drawing
because they anyway realized the necessity of its existence for the Hakhel event occurring at the same time. And
once the balcony was built (with authorization to override the Temple architecture thanks to the concept of Hakhel),
the Sages directed the ladies to enjoy the new facilities for the Rejoicing of the Water Drawing, as well (even
though, according to the letter of the law, this would not be required).
Indeed, tenuous as it may seem, this defense of the geographic barrier camp is not entirely far-fetched when
one considers the fact that even according to R. Moshe Feinstein [who explicitly rejects the geographic barrier
theory], the entire justification for the construction of the Temple balcony ultimately stems from Hakhel. After all,
in Iggerot Mosheh, Orach Chaim I, no. 39 (paragraph that begins the words aval ee efshar lomar ken), R. Feinstein
astutely observes that, if it were only for the sake of the Rejoicing of the Water Drawing, the Sages could have
avoided building a balcony, since an announcement could have been made that only gentlemen should attend the
Rejoicing of the Water Drawing spectacle altogether [or, conversely, that only ladies should attend, or that one night
should be designated exclusively for ladies and an alternating night exclusively for gentlemen.] As such, renovating
the Temple architecture could not be justified for the sake of the Rejoicing of the Water Drawing alone, since R.
Feinstein holds that one may only tamper with the Temple architecture for the sake of an unavoidable biblical
imperative [as discussed and debated in Section A above]. However, the Sages fortuitously realized that there is one
occasion when the Torah absolutely demands that both ladies and gentlemen materialize in the Sanctuary
simultaneously, viz. for Hakhel, and thus the Sages understood they have no choice but to construct a balcony,
whereupon they were concomitantly able to invite both ladies as well as gentlemen to celebrate at every night of the
Rejoicing of the Water Drawing. R. Feinsteins approach to this effect has already been discussed in Section A
above and the accompanying note 17. Intriguingly, it emerges from that note that the viability of the geographic
barrier theory will depend upon the safek articulated by the poskim as to whether the external courtyard is
intrinsically linked to Hakhel.
[However, as is further described in the third to final paragraph of Section A, R. Yitzchak Zvi Sofer has
discovered a brilliant alternate solution to R. Feinsteins original conundrum, according to which R. Feinsteins
thesis is not at all dependent upon Hakhel. As such, the credibility of the geographic barrier camps position is
somewhat diminished, though still (in this students opinion) remains a safek possibility.]
According to this defense of the geographic barrier camp, the way the geographic barrier camp understands
the gemara in Sukkah 51b will be that when the gemara reports that the Sages were dissatisfied with the ladies and
gentlemen being originally separated by the wall interfacing between the outdoor Temple Mount and the external
courtyard because hayu bain lidei kalut rosh (i.e. it was incompatible with reverence for the Sanctuary), the
gemara means that there was no actual kalut rosh at the Rejoicing of the Water Drawing event, but that the Sages
realized that at Hakhel, where everyone will have to congregate within the outer courtyard, there will be kalut rosh
unless a balcony is constructed. By contradistinction, R. Feinstein interprets hayu bain lidei kalut rosh to mean
that there was automatically kalut rosh at the Rejoicing of the Water Drawing event itself, since the wall did not
operate as a kinaesthetic barrier. But thanks to the concept of Hakhel, the Sages understood that they are authorized
to build a balcony as the remedy, rather than limit any given night of the Rejoicing of the Water Drawing to only
ladies or only gentlemen. [Or, according to R. Yitzchak Zvi Sofers solution, thanks to the mitzvah de-Oraita of
rejoicing on the festival, the Sages understood that they are authorized to build a balcony as the remedy, rather than
limit any given night of the Rejoicing of the Water Drawing to only ladies or only gentlemen.]
42

In a lecture delivered on February 2, 1989 [recorded at

<http://www.yutorah.org/lectures/lecture.cfm/711888/Rabbi_Hershel_Schachter/Inyanei_Beit_haKenesset>], at
78:40 minutes into the presentation, R. Hershel Schachter cites R. Joseph Ber Soloveitchik as challenging R.
Feinsteins assumption that a barrier exceeding shoulder height represents the proper measurement for constitution
of a kinaesthetic barrier. R. Soloveitchik remonstrates that R. Feinstein never substantiates his shouder-height
assumption with any clear talmudic source. Perhaps, then, a kinaesthetic barrier can be achieved with a wall of even
lesser stature.
Actually, it seems to this writer that R. Feinstein does indirectly address this objection with his responsum
in Iggerot Mosheh, Orach Chaim II, no. 43. There, R. Feinstein is asked by a congregation whose ladies section
was previously situated on an elevated gallery whether it is permissible to move the ladies section to the same floor
level as the gentlemens section with the installation of a shoulder-height wall separating the ladies section from the
gentlemens section. R. Feinstein responds by discouraging such an innovation; even though he himself previously

41

explicitly ruled that a shoulder-height wall suffices, he characterizes that position as a sevara a logical assumption.
In other words, while it is highly intuitive to assume that a shoulder-height barrier serves as a kinaesthetic barrier,
one could couterargue that perhaps it needs to be taller than shoulder height to achieve that purpose (since people
can raise their hands above their shoulders). [R. Feinstein concludes that according to the letter of the law one may
rely on a shoulder-height partition, but it would be preferable for a congregation which already possesses a balcony
to avoid changing its architecture to rely on R. Feinsteins sevara.] Thus, R. Soloveitchiks objection that perhaps a
wall even lower than shoulder-height suffices as a kinaesthetic barrier while correct is equally counterbalanced
by the opposite consideration that perhaps a wall even taller than shoulder-height is necessary to achieve a
kinaesthetic barrier. Ultimately, then, the sevara that prevails is one propelled by gravitationally dictated
thermodynamics: it requires so much energy to raise ones own arm above ones own shoulder height that it is
socially awkward to do so, and therefore Leviticus 19:30 is fulfilled once the synagogue partition is shoulder-height,
no more and no less.
Although never mentioned by R. Feinstein, it seems to this writer that the thermodynamic cogency of R.
Feinsteins shoulder-height approach may be better appreciated in light of the mishnah in Tamid 30b. There, we are
told that a stone with three steps is placed in front the Temple menorah. Raavad, in his commentary to Tamid,
observes that the stepping-stone is mandated by Numbers 8:2-3 as elaborated by the Sifrei. Yet, the gemara in
Menachot 29a assumes that this particular scriptural decree is rationally based [unlike many other scriptural decrees,
such as the red cow, which operate independently of any scientific explanation.] Namely, because the menorah is
three cubits in height, generating kinaesthetic difficulty for a person on the ground to manipulate the lamps of such a
tall structure, the Torah ordains a stepping-stone. Tiferet Yisrael (of R. Yisrael Lifshitz) and Or ha-Yashar (of R.
Samuel Isaac Hillman), in their respective commentaries to Tamid 30b, both observe that three cubits in height
equals shoulder height, thereby explaining the kinaesthetic difficulty which mandates a stepping-stone. It would be
uncomfortable for a person to raise his hands above his shoulders in order to clean and/or light the menorah.
[Hence the need for the steps, to enable the kohen to reach the lights comfortably Mesorah Publications 1986
English elaboration upon R. Shlomo Yosef Zevins Ha-Moadim ba-Halakhah, Vol. II, p. 104.] The implication of
this mishnah, then, is to establish a Torah principle that discomfort is created when an individual must raise his
hands above his shoulders. This proof to R. Feinstein appears particularly compelling when contrasted with Rashi to
Numbers 11:31 who explains (based on the Sifrei) that the miraculous quail described by that verse was jumping to a
height of approximately two cubits so that there would be no bother for the Jews to collect it, since a height of
approximately two cubits corresponds to opposite a persons heart. The implication of Rashi is that to raise the
arms higher presumably meaning to the next integer up in number of cubits, seeing as the verse deals with
approximation would indeed have bothered a person endeavoring to catch the bird. Ergo, raising ones arms to
three cubits in height is apparently tedious.
The thermodynamic cogency of R. Feinsteins shoulder-height approach may perhaps be even further
appreciated through the prism of the gemara in Yevamot 77a. The gemara there explains that the biblical
interdiction against Amonite and Moabite converts marrying into the Congregation of Ha-Shem (Deuteronomy 23:45) only applies to gentlemen and not to ladies, since it is only the gentlemen who are faulted for failing to greet the
Jews in the desert with bread and water. The ladies were never expected to offer bread or water, because Genesis
18:9 and Psalms 45:14 establish that it is proper for ladies and gentlemen to inhabit separate campuses. Arguably,
then, Yevamot 77a establishes that separation is achieved when it is not possible for one of the gender groups to
effectively offer a flask of water to the other a goal achieved through the interposition of a barrier that exceeds
shoulder height, no more and no less. [The mishnah in Shabbat 92a establishes that carrying on ones shoulder
constitures a normal form of transportation.]
Cf., however, Rambam in his Peirush ha-Mishnayot to Tamid 30b, who writes that the menorah steppingstone was required because the menorah equaled the full height of a human being. Without citing Rambam, this
approach seems to be adopted by Siftei Chakhamim in his supercommentary to Rashi on Numbers 8:2. Siftei
Chakhamim asks why a stepping-stone would be needed when according to his calculation the height of a human
being is twenty-four handbreadths, far greater than the menorahs eighteen handbreadth height. Siftei Chakhamim
answers that the eighteen handbreaths of the menorah were measured with smiling handbreadths (to borrow the
expression from the gemara in Eruvin 3b), meaning that the handbreadths were inflated. Eighteen handbreadths of
the menorah height actually equaled the full stature of a human being, claims Siftei Chakhamim. [N.B. Siftei
Chakhamims calculation that a human being is twenty-four cubits in height, while justifiable according to one
approach in Tosafot to Eruvin 48a, s.v. gufo shalosh amot, is probably mistaken. See the many sources on this
question cited by R. Yosef Ben-Arza in his Yosef Daat to Eruviin 48a. In any event, this does not necessarily
detract from the substance of Siftei Chakhamims novel approach to the menorah height, which evidently matches
that of Rambam. (But see next paragraph of the present footnote.)] Presumably, then, Rambams Peirush ha-

42

camp conjectures that the Rambam must have envisaged the very same eschewal of mixing that
he defines in the context of ostracizing an individual afflicted with tzaraat, i.e., a tenhandbreadth barrier, since in both cases the Rambam employs the Hebrew term irbuv.43
Somewhere in between the implication of Rambams Peirush ha-Mishnayot on Sukkah
51a (which apparently advocates a visual barrier) and that of Rambams Hilkhot Lulav 8:12
(which apparently advocates a kinaesthetic/geographic barrier) is Rambams Hilkhot Beit haBechirah 5:9. The latter codification states: The ladies courtyard was surrounded by a gallery
Mishnayot and the Siftei Chakhamim would not concur with R. Feinsteins position that a shoulder-height barrier is
sufficient to serve as a kinaesthetic barrier.
Nevertheless, Rambams Peirush ha-Mishnayot and the Siftei Chakhamim are both challenged by R.
Yissachar Ber Eilenberg in his Beer Sheva commentary to Tamid 30b. Beer Sheva cites multiple comments of
Tosafot demonstrating from various passages in the gemara that eighteen handbreadths equals shoulder height (not
the height of a complete human), contra Rambams Peirush ha-Mishnayot. And as for Sifei Chakhamims purported
analysis, Beer Sheva subjets it to a scathing critique, diagnosing the entire passage as representing a forgery that
was never actually written by Siftei Chakhamim. Beer Sheva demonstrates that the handbreadths of the menorah
were the same as handbreadths employed in all other realms of Halakhah. Beer Sheva further demonstrates that
even if for arguments sake the handbreadths would be hypothetically smiling (which they anyway were not),
this would only inflate the measure by one eighth of a handbreadth per cubit. [Thus, a three-cubit-high structure
composed of smiling handbreadths would measure 19.5 standard handbreadths, not 24 handbreadths as Siftei
Chakhamim purportedly claimed. Actually, given the bracketed remarks in the previous paragraph that Siftei
Chakhamim was probably mistaken when he identified twenty-four handbreadths as the height of a person, this may
somewhat attenuate the severity of Beer Shevas second critique. I.e. the two mistakes of Siftei Chakhamim
neutralize one another. Still, it is not clear to this student whether one can envisage the size of a persons head
(above the shoulders) as measuring merely 1.5 handbreadths (19.5 18 = 1.5). In any event, Beer Shevas first
critique appears right on target.]
Ultimately, Beer Shevas analysis is cited by Or ha-Yashar, and the combined analyses of Tiferet Yisrael
and Or ha-Yashar are cited by R. Zevin, in his aforementioned Ha-Moadim ba-Halakhah, and this despite the fact
that R. Zevin originally published his book in 5704, which precedes the composition of the first of R. Feinsteins
synagogue partition responsa, viz. Iggerot Mosheh, Orach Chaim I, no. 39, dated 22 Tevet, 5706. [R. Zevin never
mentions either Rambams Peirush ha-Mishnayot or the Siftei Chakhamim.] Thus, there appears to be a credible
precedent for R. Feinsteins position. [Moreover, it should be emphasized that the non-concurrence of Rambams
Peirush ha-Mishnayot and (what is purported to be) Siftei Chakhamim with R. Feinstein is one of stringency.
Namely, according to Rambams Peirush ha-Mishnayot and (what is purported to be) Siftei Chakhamim, the
menorah was even taller than shoulder height, and hence presumably a kinaesthic barrier should be even taller
than shoulder height. These considerations can thus shield R. Feinstein from the question posed against him by R.
Soloveitchik as quoted by R. Schachter (referenced in the first paragraph of the present footnote).]
43

However, in his corrections to Bnei Vanim I (published as an appendix to Bnei Vanim II, p. 232), R. Henkin is
forced to admit that the proof from Hilkhot Tumat Tzaraat 10:12 is problematic, because in two other locations
(viz. Hilkhot Korban Pesach 1:3 and 9:3), Rambam employs the word irbuv in a different sense. R. Henkin attempts
to nevertheless defend himself by claiming that irbuv should be interpreted in a context-specific manner, but once
we are agreed that Rambam has more than one definition of irbuv, it seems to this student that the entire proof from
Hilkhot Tumat Tzaraat is vitiated.
[Cf. the disciples of R. Shaul Yisraeli, Shut Be-Mareh ha-Bazak VII, no. 9, who (while apparently
oblivious to Hilkhot Korban Pesach 1:3 and 9:3) point to Hikhot Terumot 11:19 as a refutation against R. Henkin.
On this particular argument, it seems to this student that R. Henkin can be rescued. Namely, a careful examination of
Hilkhot Terumot 11:19 reveals that irbuv could indeed be interpreted (at least theoretically) to refer to a situation
where there is not even a geographic barrier separating human beings. {In context, Rambam is ruling that a kohen
may permissibly kindle contaminated terumah oil in a house of mourning or at a wedding, even though kohanim and
non-kohanim are mixed there.} Of course, this is a speculative interpretation of Rambam, and is by no means a
conclusive proof in favour of the geographic barrier camp, since once could also equally interpret irbuv as connoting
the lack of a kinaesthetic or visual barrier. In any event, as before, Hilkhot Korban Pesach 1:3 and 9:3 demonstrates
that the attempted proof from Hilkhot Tumat Tzaraat is problematic, such that R. Henkins conclusion is
questionable.]

43

so that the ladies could see from above and the gentlemen from below, so that they would not be
mixed (meurbavin). This passage in Rambam directly taken from the mishnah in Middot 2:5
refers to vision, but also refers to avoidance of mixture, such that its message is ambiguous.44
Evidently, then, the Rambam may be equally understood as supporting the conclusion of
the geographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp.45
44

Rambams language in Hilkhot Beit ha-Bechirah is also adopted by R. Moshe of Coucy in his Sefer Mitzvot Gadol
(positive commandment 163) and by Arukh ha-Shulchan ha-Atid, Kodashim I, 11:16, in codifying the laws of the
Temple gallery architecture. Cf. R. Doniel Neustadt, in his The Weekly Halachah Discussion (Feldheim, 2002), p.
369, who argues that Arukh ha-Shulchans language therefore indicates that he does not require a visual barrier. To
(le-havdil ani ha-katan) this student, that argument cannot be regarded as definitive, since there is an ambiguous
mention of vision in Arukh ha-Shulchan (based on the mishnah in Middot 2:5 and Rambam in Hilkhot Beit haBechirah 5:9). See also, supra, note 31, where an independent effort was advanced by this student to prove that
Arukh ha-Shulchan does not require a visual barrier, but that effort was also refuted.
45

A similar ambiguity exists in the Midrash of Tanna de-Vei Eliyahu that is cited by the Midrash compendium
known as the Yalkut Shimoni, in its exposition of Deuteronomy 23:15. The Tanna de-Vei Eliyahu directly addresses
the requirement for a partition during prayers, elucidating the said verse as follows: [A gentleman] should not stand
among ladies and pray, due to cognition of the ladies. Rather, he should sanctify his camp five cubits in every
direction, and if it [viz. the presence of ladies] was inside the camp, he should sanctify it entirely, as it is says [The
Holy One, blessed be He,] is walking in the midst of your camp. From this we learn that he should stand next to a
tree, next to a stone or next to a wall, and pray, as it says And Hezekiah turned his face to the wall etc.
R. Yehudah Herzl Henkin, Shut Bnei Vanim II, no. 12, cites the Zayit Raanan commentary of R.
Abraham Abele Gombiner [-the same author as the Magen Avraham commentary on Shulchan Arukh] upon the
Yalkut Shimoni to the effect that a separation of five cubits in every direction actually means that the lady may be
present within the fifth cubit. In other words, there must be four cubits of space between the gentlemen and ladies.
[N.B. The Zayit Raanan s exposition of five cubits in every direction appears methodologically confirmed by
Tosafot to Berakhot 31b, s.v. imkhah. I am grateful to Kalman Honig for bringing this parallel to my attention,
quoting R. Baruch Simon quoting R. Hershel Schachter.]
Moreover, elucidates R. Henkin based on the Raaviah nos. 69 and 77 as well as the Rokeach no. 324
(but in what R. Henkin claims to be at variance with Zayit Raanan) when the Tanna de-Vei Eliyahu proceeds to
prescribe that if it [viz. the presence of the ladies] was inside the camp, he should sanctify it entirely, this means
that when the gentlemen and ladies are present indoors, a buffer of four cubits between them does not help anymore,
and a real partition must be constructed between them.
Earlier, R. Henkins elucidation of Tanna de-Vei Eliyahu was also offered by R. David Ochs in a letter
published in the Hebrew appendix to The Sanctity of the Synagogue (Spero Foundation,1959), pp. 60-62. However,
R. Ochs appears to indicate (and correctly so in this students opinion) that there was never even a dispute between
Zayit Raanan vs. Raaviah and Rokeach (contrary to the claim of R. Henkin), such that all authorities espouse the
indoor/outdoor dichotomy; viz. outdoors a buffering space of four cubits is required, whereas indoors an intervening
partition is required. This is because Zayit Raanan writes that when one is in the domain of others and it is
impossible to sanctify it all (be-reshut acherim ve-ee efshar lo le-kadesh kulo), then a buffering space of four cubits
[as distinct from an intervening partition] is required. R. Ochs interprets Zayit Raanans reference to a domain of
others as meaning the public domain, i.e. the outdoors, where it is logistically impossible to completely enclose
an area will walls (-and, if one did manage to enclose the area on all sides with walls, by architectural definition it is
no longer the outdoors). Thus, for R. Ochs it is obvious that the halakhah follows the indoor/outdoor dichotomy,
for no commentary ever said differently. [By contradistinction, R. Henkin regards this as being a dispute between
Raaviah and Rokeach vs. Zayit Ra anan, but in any event even R. Henkin agrees that the halakhah follows the
indoor/outdoor dichotomy bespoken by Raaviah and Rokeach.]
Accordingly, the Tanna de-Vei Eliyahu effectively informs us that a partition is not required when praying
outdoors. Instead, a gap of four cubits in every direction between the gentlemen and the ladies suffices. But indoors
(e.g. inside a synagogue), a partition is absolutely obligatory. R. Henkin argues that, if a four cubit horizontal space
suffices outdoors, then what is of concern is a geographic barrier, and so indoors a ten handbreadth vertical partition
should suffice.
However, R. Elijah Meir Bloch, in a responsum addressed to R. Chanania Yom Tov Lipa Deitsch and
published in the latters Taharat Yom Tov VI (p. 57), draws precisely the opposite conclusion from the same Tanna
de-Vei Eliyahu. He points out that the Tanna de-Vei Eliyahu refers to cognition of the ladies. In other words, the

44

Another source from the Rishonim of relevance to this question is the Mordekhai to
Tractate Shabbat, no. 311, who posits an exception to the rabbinic interdiction against
constructing a partition on the Sabbath that serves as a mechitzah ha-materet. The Mordekhai
rules that one may permissibly interpose a partition between ladies and gentlemen during a
lecture on the Sabbath, seeing as the temporary partition exists solely for purposes of privacy,
rather than the creation of legally geographic separate domains. The Mordekhais decision is
codified as normative by R. David Halevi Segal in his Taz commentary to Shulchan Arukh
Orach Chaim 315:1, as well as by the Mishnah Berurah (loc. cit., 5) and the Arukh ha-Shulchan
(loc. cit., 4).
The geographic camp cogently notes that the Mordekhai only discusses a partition during
a Sabbath lecture but conspicuously fails to address the more ubiquitous problem of the need for
a partition during Sabbath prayers. This omission, it is argued, reflects the realization that a
partition during prayers indeed classifies as a mechitzah ha-materet, and could never be
permissibly constructed on the Sabbath. This, in turn, points to the conclusion that the partition
for prayers is none other than a ten-handbreadth partition.
The other camps, however, [-represented in this regard by a comment attributed to R.
Yechezkel Ambramsky by R. Eliezer Waldenberg in the latters Shut Tzitz Eliezer VII, no. 8-]
draw precisely the opposite conclusion from the Mordekhais words. The Mordekhai is
communicating that even a lecture, which does not require a quorum, should be graced by
formidable partition which exceeds ten handbreadths in height, and which guarantees privacy.
And how much more so do synagogue prayers, which require a quorum for recitation of matters
of sanctity [-and which accordingly trigger Leviticus 19:30], necessitate a formidable partition
for the sake of guaranteeing privacy (-either a kinaesthetic barrier or a visual barrier, depending
on the school of thought). And whether it is a lecture or a prayer service, the partition may be
permissibly assembled on the Sabbath.46
function of a synagogue partition is to guarantee that each worshipper will be imbued with an elevated pure spirit of
focus upon the prayers. He argues that this obviously necessitates a visual barrier.
[Likewise, the disciples of R. Shaul Yisraeli, in their jointly composed Shut Be-Mareh ha-Bazak VII, no.
9, offer a similar explanation of the Tanna de-Vei Eliyahu on behalf of the kinaesthetic barrier camp. Namely, each
worshipper will be enveloped with a pure spirit of focus upon the prayers when a partition which prevents motion is
established.]
Evidently, then, the Tanna de-Vei Eliyahu may be understood as equally supporting the conclusion of the
geographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp.
46

In light of the Mordekhai from Tractate Sanhedrin (no. 684) referenced earlier in the text, it would appear to this
writer that the Mordekhai in Tractate Shabbat should indeed be interpreted as a support to the visual barrier camp, so
as not to generate a contradiction between the Mordekhai in Tractate Sanhedrin and the Mordekhai in Tractate
Shabbat.
Intriguingly, the members of Kollel Eretz Chemdah, in their jointly composed Shut Be-Mareh ha-Bazak
VII, no. 9, observe that R. Joseph Ber Soloveitchik is cited by R. Hershel Schachter (Nefesh ha-Rav [Jerusalem,
1994], p. 170) as also having interpreted the Mordekhai as advocating a massive partition even for a lecture, and all
the more so for synagogue prayers. This is truly astonishing since as referenced supra, note 30 R. Joseph Ber
Soloveitchik paradoxically authorizes a geographic barrier (at least in a time of duress). Be-Mareh ha-Bazak
therefore advances the novel thesis that R. Soloveitchik is actually a member of the visual or kinaesthetic barrier
camps, not the geographic barrier camp. The only reason that R. Soloveitchik is cited (supra note 30) as permitting
a geographic barrier in a time of duress, claims Be-Mareh ha-Bazak, is because when there is no alternative one
can simply exclude the ladies section from the entire synagogue altogether, and a geographic barrier will
accomplish that goal. But if a synagogue desires to have a ladies section actually be considered part of the
communal prayers, then it must feature a visual or at least a kinaesthetic barrier.
Be-Mareh ha-Bazaks thesis essentially submits contrary to R. Henkin that there is no legitimate
geographic barrier camp among the poskim altogether. Really, a massive partition (kinaesthetic or visual) is needed.

45

Noteworthy in this regard is the analysis of R. Yitzchak Yosef, in his Yalkut Yosef, Dinei
Keriat Sefer Torah u-Veit ha-Kenesset, pp. 223-224, 340-341, who apparently vacillates
between these three options, without coming to any definitive conclusion, either. Evidently, each
approach has merits that augur in its favour, and it is difficult to resolve this dispute. The only
definitive pronouncement offered by the Yalkut Yosef is to quote an oral decision from his father,
R. Ovadiah Yosef, to the effect that it is preferable to follow the visual barrier camp.
Indeed, in a subsequently published responsum (Shut Yabia Omer X, Orach Chaim no.
15) dealing with the expansion of a ladies section in a sanctuary, R. Ovadiah Yosef twice refers
to a synagogue partition as having been constructed properly and according to the law, yet he
declines to define what this means in mathematical terms.
Likewise, R. Gedaliah Felder, in his Yesodei Yeshurun I, p. 49, cites all three possibilities
for a synagogue partition, without being able to decide between them.
Somewhat similarly, R. Samuel Halevi Wosner, in his Shut Shevet ha-Levi I, no. 29
expresses uncertainty as to the precise requirements for a synagogue partition.47 Comparably, R.
In a time of duress, one relies on a geographic barrier not because this satisfies the mitzvah of the synagogue
partition, but simply to limit the definition of the synagogue to the area where the gentlemen are congregating.
According to this approach, a community can employ a geographic barrier to summarily exclude the ladies section
from the synagogue and thus bypass the need for a proper partition.
Be-Mareh ha-Bazak claims as support for his novel approach that even exponents of the visual barrier
camp permit a congregation to pray in a synagogue with windows facing the street, despite the fact that many ladies
are walking in the street, all of whom will be visible to the entire congregation during prayers. Thus, asserts BeMareh ha-Bazak, we infer that the mitzvah of a synagogue partition only requires separation (whether defined as
visual separation or kinaesthetic separation) between the population of ladies and gentlemen who are within the
same sacred location. But if ladies are completely excluded from the sacred location, there is paradoxically no need
for separation (of a visual or kinaesthetic kind).
It seems to this writer that Be-Mareh ha-Bazaks proof from the synagogue with windows facing the street
is entirely conclusory. Perhaps the exponents of the visual barrier camp do not, in fact, pernit a congregation to pray
facing windows that allow sight of the people in the street. [I.e. perhaps the only windows in a synagogue should be
those that point skyward.] Ultimately, Be-Mareh ha-Bazaks approach is vindicated by the fact that R. Soloveitchik
issued seemingly paradoxical statements on the subject of the synagogue partition, but by no means can it be
assumed that all other poskim will necessarily agree with R. Soloveitchik [as elucidated by Be-Mareh ha-Bazak on
this point (viz. that it is possible to summarily exclude all ladies from the synagogue by means of a geographic
barrier and thereby bypass the obligation of a synagogue partition)]. This approach of R. Soloveitchik (as elucidated
by Be-Mareh ha-Bazak) would appear analogous to the controversial opinion in Eruvin 22b that lo atu rabim umevatlei mechitzatah (the movement of masses [across a geographic barrier] cannot come and nullify an existing
[geographic] partition).}
Moreover, as discussed supra, note 42, R. Schachter in a separate oral lecture specifically reports that
R. Soloveitchik rejected the kinaesthetic barrier approach, thus contradicting Be-Mareh ha-Bazak (who states that
R. Soloveitchik may have been a member of the kinaesthetic barrier camp). Still, it is possible that R. Soloveitchik
embraced the visual barrier approach (-the other possibility enunciated by Be-Mareh ha-Bazak), which would also
accord with the final determination of how to interpret the Mordekhai advocated by the first paragraph of the present
footnote.
In any event, even granted Be-Mareh ha-Bazaks elucidation of R. Soloveitchik, the fact remains that one
could not erect a geographic barrier on the Sabbath, since doing so would constitute the construction of a temporary
structure on the Sabbath. Thus, R. Henkins strigency (regarding the laws of Shabbat) is affirmed.
Be that as it may, although (at this point in the essay) the text is concluding that according to the
kinaesthetic barrier camp the synagogue partition may be permissibly assembled on the Sabbath, this assumption
will change in the final paragraph of Section M.
47

Cf. Shut Shevet ha-Levi X, no. 33, where R. Wosner writes regarding the ladies sanctuary, the custom [of our
ancestors] was that they would build it on the western side that is to say the back side of the synagogue. But
there are no principles regarding this, except according to the situation of the architecture and the number of
worshippers. And in any event one should be careful with the modesty of the place that the ladies should see and not

46

Moshe Grinwald, in his Shut Arugat ha-Bosem, Orach Chaim nos. 26-27, encourages
implementing a visual barrier in the synagogue, but appears equivocal as to whether this is truly
required as a matter of Halakhah.
In a parallel manner, R. Yehudah Herzl Henkin, in his Shut Bnei Vanim I, no. 2
(penultimate paragraph), reports that his saintly grandfather R. Joseph Elijah Henkin was asked
regarding a high school synagogue with an eleven-handbreadth high partition, and he did not
articulate either an interdiction or a permission (an invocation of the gemara in Eruvin 99b).
Those remarks apparently indicate that the grandfather R. Henkin was uncertain in defining the
exact specifications of a synagogue partition.48 49

be seen. This later responsum appears more weighted toward requiring a visual barrier than the previously written
Shevet ha-Levi I, no. 29, but even the later responsum does not appear unequivocal (quite apart from the fact that it
never mentions the previous responsum). Ergo, R. Wosner appears to regard the matter as a safek.
48

Further illustration of the grandfather R. Henkins ambivalence on the matter is illustrated by a previously
unpublished responsum of the grandfather (dated 5720 and cited by the grandson in a footnote on p. 224 of Shut
Bnei Vanim I) in which the grandfather states: Regarding the [synagogue] partition if the ladies sanctuary is
above [as a balcony], [then] I recall from several cities in Russia that they were not particular that the partition
[surrounding the balcony] should be tall [to eclipse the congregants on the balcony], since [the balcony] is [anyway]
above. And it is correct that they should make a curtain above if the partition [surrounding the balcony] is low, so
that in case of need they can raise it. Taken alone, this unpublished responsum of R. Henkin indicates that he
apparently endorsed the Divrei Malkiel and Teshuvot ve-Hanhagots approach (discussed supra, notes 35 and 40),
although he also preferred to satisfy the Divrei Malkiel and Teshuvot ve-Hanhagots opponents (described supra,
note 40) if possible. But, when juxtaposed with the high school episode presented by the grandson R. Henkin, it
emerges that grandfather R. Henkin was actually uncertain as to what the letter of the law requires in terms of a
synagogue partition a geographic barrier or a visual barrier.
The 5720 responsum of the grandfather R. Henkin is subsequently republished in Kitvei ha-Gaon Rav
Yosef Eliyahu Henkin II (New York, 1989), pp. 12-13. [I am grateful to R. Adam Mintz for bringing this valuable
source to my attention.] That source further publishes three additional responsa of the grandfather R. Henkin on the
subject of the synagogue partition specifications, as follows:
1) The first of these additional responsa, undated, reads:
The measure of the partition, if possible, should be like the average human being, until the head.
And in a time of duress, the partition should be at least ten handbreadths, and above this should be a
curtain which interrupts, and this is better than a curtain from the ground upwards.
Although it is not entirely clear, one presumes that when R. Henkin writes until the head, this means until
and including the head, i.e. a visual barrier. From R. Henkins responsum, it emerges that he insists on a geographic
barrier being contained within the visual barrier, which is why the bottom ten handbreadths must be unmoveable
solid wall as distinct from pliable curtain. [A geographic barrier, by definition, must be rigid, as will be elaborated
infra, Section J. By contradistinction, a visual barrier alone can consist of an opaque curtain, as explained infra,
Section I. In other words, even though a visual barrier is taller than a geographic barrier, it is not by definition
required to be as sturdy.]
Admittedly, there is an internal contradiction within this responsum of R. Henkin. He says that in a time of
duress one may rely upon on a curtain to cover the height above ten handbreadths. This implies that no further
leniency can ever be accepted. Yet, he continues this is better than a curtain from the ground upwards, implying
that if there were no choice one could rely completely on a curtain! Moreover, this responsum is contradictory to
the grandson R. Henkins report referenced in the text, which seemed willing to entertain the possibility of only a
ten-handbreadth partition (or eleven handbreadths high, as the case may have coincidentally been) being possibly
kosher (and possibly not).
2) The second of these additional responsa, dated 5707, reads:

47

Assuredly, he [my interlocutor] is correct that it is appropriate to make a proper partition, with at
least ten handbreadths [of rigid wall], and above this a curtain. And even though sometimes they
lower the curtain, this is temporary and we dont concern ourselves for this. But to have a curtain
alone, such that after they lower it there is no partition whatsoever, is not correct at all (lo nakhon
klal). And his Torah honour [my interlocutor] should act with wisdom to rectify this matter with the
progress of time. But, still, since there is a curtain, and they claim that they acted based on rabbis, his
Torah honour [my interlocutor] should not resign from the rabbinate because of this, and he should
behave with them with a rod of sweetness.
This responsum reiterates what R. Henkin wrote in (1) regarding a time of duress. Yet, just as (1) contained
a self-contradiction regarding relying on a curtain alone, so too does this responsum suggest that it be possible to
justify for the rabbi to continue functioning in the synagogue even when there is a curtain alone, since other rabbis
may have approved this. Moreover, this responsum is contradictory to the grandson R. Henkins report referenced in
the text, which seemed willing to entertain the possibility of only a ten-handbreadth partition (or eleven
handbreadths high, as the case may have coincidentally been) being possibly kosher (and possibly not).
3) The third of these additional responsa, also dated 5707, reads:
Regarding the new synagogue where by chance the gentlemen and ladies prayed without an
intervening partition, it seems that if they promise to make a partition one should not refrain from
praying there, and at the present time if individual ladies (nashim achadot) enter there, one should
arrange at least a curtain, until they make a proper partition [of solid wall]. And a time of duress is
different. And in this kind of situation it seems that the Chatam Sofer did not prohibit.
This responsum, like the two before, indicates that at least ideally (and possibly even post facto) a
curtain alone is not acceptable as a partition. However, R. Henkin is willing to rely on two mitigating factors to
permit a congregation to rely on a curtain alone, at least on an ad hoc basis: (a) if the congregation promises to
install a solid wall in the future, plus the fact that (b) currently there are only individual ladies present in the
synagogue. Although R. Henkin does not explain what (b) means, the most likely account for R. Henkins
responsum is that he is relying on those poskim (-referenced in Section B above, poskim who include R. Henkins
own grandson) who do not require a partition altogether when there are one or two ladies present in the synagogue.
As such, R. Henkin is unwilling to rely completely on this lenient position, but it is sufficient when combined with
the factorthat the synagogue promises to build a solid wall in the future to rely on a curtain alone.
This responsum does not address how tall the solid wall (which the synagogue has promised to build in the
future) must actually be.
In summary: there are subtle variations within the written responsa of the grandfather R. Henkin, and also
between them and the oral report of the grandson R. Henkin. It seems to this writer that the most likely account for
the grandfather R. Henkins varying responsa is that he was simply uncertain as to what the stature of a synagogue
partition must be.
49

The grandson R. Henkin further reports that his grandfather allowed the rabbi of the high school [-not clear to this
student whether the rabbi was the principal of the school or a member of the school faculty (-SCSs observation)] to
continue to pray in the high school, if after his efforts to convince the school to aggrandize the height of the partition
it was impossible to actually convince the school to do so. This aspect of the grandsons report is consistent with an
additional responsum by the grandfather R. Henkin (dated 5721) posthumously published in Kitvei ha-Gaon Rav
Yosef Eliyahu Henkin II, p. 11. There, R. Henkin rules that if the only synagogue in a Jews neighbourhood is one
that lacks a partition, and there is a strong chance that the Jew will be able to positively influence the synagogue by
praying there and teaching the congregation to improve its standards of halakhic observance, then it is then
exceptionally permissible for the Jew to pray there, so long as he admonishes the congregation for the lack of a
partition. [R. Menasheh Klein (writing a letter to the grandson R. Henkin, printed on p. 225 of Bnei Vanim I)
disagrees with the grandfather R. Henkin and forbids a Jew to pray there under any circumstances until the partition
is installed.] Thus, it is not surprising that the grandfather R. Henkin allowed the rabbi to continue to pray in the
high school, even though he was uncertain whether the synagogue partition was kosher. [In the high school, the
situation was actually even better than the hypothetical situation described in Kitvei ha-Gaon Rav Yosef Eliyahu
Henkin II, as the high school indeed possessed a partition, but it was uncertain whether it sufficed according to
Halakhah.]

48

In a similar spirit, R. Yechiel Yaakov Weinberg has apparently vaccillated in his rulings
on synagogue partition stature. In Shut Seridei Esh II, no. 8, sec. 3, R. Weinberg requires a
visual barrier for the synagogue. Yet, just a few responsa later, in Shut Seridei Esh II, no. 14, R.
Weinberg insists that the halakhah follows R. Feinstein that a kinaesthetic barrier suffices. [At no
time does R. Weinberg ever refer to the geographic barrier position.50]
On the other hand [standing in opposition to R. Weinbergs vacillation between the visual
barrier and kinaesthetic barrier camps,] a posthumously published responsum attributed to R.
Joseph Chaim Sonnenfeld (Shut Salmat Chaim) might be argued to vacillate between the
kinaesthetic barrier and geographic barrier camps.51 Namely, R. Sonnenfeld is asked regarding
the Western Wall in Jerusalem, where a synagogue partition indeed exists, but it not the visual
barrier demanded by Maharam Shik,52 because the Noahide government will not allow such a
Actually, it seems to this student that even if one would hypothetically adopt the grandfather R. Henkins
position and authorize a Jew to pray in a synagogue without a partition (or with an inadequate partition) on the hope
that the Jews leadership will inspire the congregation to ultimately install a kosher partition, it nevertheless remains
the case that the Jew is forbidden to respond to kaddish, kedushah or barkhu in such a congregation, and would
essentially have to limit him/herself to reciting prayers that an individual recites, even while being present amidst
the congregation. This is because the most significant invocation of Leviticus 19:30 in the context of a synagogue
occurs when tefllah be-tzibbur is in progress, as explained supra, note 6. [Cf., however, infra, note 95, where R.
Benjamin Silber is cited in one of his Az Nidberu responsa as suggesting that the requirement for a synagogue
partition may be completely fungible. If so, R. Silber would presumably claim that one may permissibly respond to
kaddish, kedushah or barkhu in a congregation lacking a partition. As explained in that footnote with all due
reverence manifest before the great luminary R. Silber, it seems to this student that not only is R. Silbers claim
inconsistent with another announced opinion of his, but R. Silbers claim (as to the fungibility of the synagogue
partition) is also rejected by the overwhelming consensus of poskim.] I am grateful to R. Baruch Perton for bringing
this valuable insight to my attention.
Parenthetically, the 5721 responsum of the grandfather R. Henkin might be interpreted to contain even a
greater leniency than that previously acknowledged in this footnote. The grandfather R. Henkin writes that, under
exceptional circumstances, one is permitted to pray in a synagogue which has an order of mixture with ladies (sheyesh bo seder le-ta aruvot im nashim) if one is confident that one will be able to convince the congregation to
ultimately install a kosher partition. Until now, this has been interpreted in this footnote to mean that the synagogue
merely lacks a partition. When the partition is not adequately high, the ladies and gentlemen are ipso facto
considered to be virtually mixed, as R. Moshe Feinstein writes in Iggerot Mosheh, Orach Chaim I, no. 39 (p. 98,
righthand column, seven lines from end). However, one might alternatively interpret the grandfather R. Henkin to
refer to a synagogue in which the pews are literally mixed. If the latter interpretation is what the grandfather R.
Henkin intended, then this means that the grandfather R. Henkin necessarily disagreed with R. Willigs
categorization of prayer with mixed pews as being subsumed under abizraihu de-avodah zarah (as discussed supra,
note 11). After all, if one holds that prayer with mixed pews constitutes abizraihu de-avodah zarah, then it is
eternally prohibited under any and all circumstances, even if one is confident that one will be able to convince the
congregation to repent.
50

Comparably, R. Eliyahu Abergel, in his Shut Dibberot Eliyahu V, no. 14, prefers a visual barrier, but post facto
accepts a kinaesthetic barrier. Yet, in his subsequently published Shut Dibberot Eliyahu VII, no. 24, sec. 2, R.
Abergel absolutely requires a visual barrier.
Cf. infra, note 87, from which it apparently emerges that R. Mordechai Gross adopts a position that most
closely approximates that of R. Weinberg and R. Abergel, in vacillating between the kinaesthetic and visual barrier
positions, while rejecting the geographic barrier position. [Unlike R. Weinberg, though, both R. Abergel and R.
Gross are explicit in referring to the geographic barrier position.]

51

In the Jerusalem 5767 edition of Shut Salmat Chaim published by R. Shlomo Werner, it is responsum no. 156.
Previous editions of Salmat Chaim do not contain this responsum.

52

As referenced supra, note 35, Maharam Shik is a member of the visual barrier camp. He is the posek invoked by
name by R. Sonnenfelds interlocutor.

49

formidable partition.53 Is tefillah be-tzibbur nonetheless possible? Answers R. Sonnenfeld:

leave the Jewish People in tranquility [to act as they are currently acting], an obvious
invocation of the gemara in Pesachim 66a. Thus, this posthumously published responsum
supports the kinaesthetic and/or geographic barrier camps, albeit without specifiying which of
those two camps the practical halakhah follows.
In sum total, it would apparently emerge that the dimensions of a synagogue partition
constitute a matter of unresolved sfekot. Perhaps the partition needs to be a geographic barrier,
perhaps a kinaesthetic barrier, and perhaps a visual barrier.
D. RESPONSUM OF RASHBA ON SYNAGOGUE ARCHITECTURE
When contrasted with the declarations of the poskim described in Sections A, B and C
above, an amazingly different picture regarding synagogue architecture emerges from Teshuvot
ha-Rashba II, no. 182. In context, Rashba is asked regarding a case of monetary jurisprudence
involving the testimony of ladies. It is, of course, an uncontested principle of Torah law that
ladies are never summoned to Beth Din as witnesses, as established by the gemara in Shevuot
30a. Apparently, however, the particular fact pattern in question involved events that occurred in
a synagogue, and Rashbas interlocutors claimed that the ladies testimony should be accepted,
because ladies are the only possible witnesses who could ever frequent the ladies section of the
synagogue.54 Rashba therefore responds:
Know that the testimony of ladies even if they were a thousand and all of equal
testimony is not testimony except for matters of ritual prohibitions. And I see
from your written submission that you rely on testimony of ladies, and perhaps
you found such attributed to one of the earlier rabbinic authorities [i.e. that the
testimony of ladies is uniquely acceptable] in places where the ladies sit in the
synagogue, because it is a reserved place for ladies, and gentlemen do not enter
there at the time that ladies sit there. But we do not know these matters, and we
have never heard [of them], and it is not fit to rely on them. And even though we
will assume him [i.e. a gentleman who approaches the court in an inheritance
case] as being a firstborn for purposes of receiving double on the basis of two
[female witnesses], there it is different because it is impossible without this [i.e.
without employing female witnesses to testify that a particular baby was born
from a particular mother] for gentlemen do not assist ladies in childbirth. An
allusion to this is and the midwife took the scarlet thread and tied it on his hand
etc. (Genesis 38:28). But here [in the case of events that transpire in the
synagogue] it is possible [to establish the facts] through gentlemen [as witnesses],
like the testimony regarding [any] sale or gift.
In these remarks, Rashba apparently dismisses any need for separate seating in the
synagogue (and, a fortiori, any need for a synagogue partition). Rashba indicates that unlike the
case of midwivery, where considerations of modesty augur in favour of an exclusively female
53

In R. Sonnenfelds era, the land of Israel was under the government contol first of the Ottoman Empire, and then
of the British Empire. R. Sonnenfelds responsum is not dated, and so it is unknown to which government he refers.

54

Indeed, this claim advanced by the Rashbas interlocutors is actually espoused by the Terumat ha-Deshen, as
referenced supra, note 1.

50

presence in the obstretrics room, the synagogue is a place where gentlemen can easily testify as
to the actions of ladies, no less so than in the marketplace where gentlemen observe transactions
of sales or gifts. It is true that Rashba speculates that perhaps some earlier rabbinic authorities
spoke of separate seating in the synagogue, but he frankly negates that thesis with his emphatic
assertion we do not know these matters, and we have never heard [of them], and it is not fit to
rely on them. Seemingly, the straightforward meaning of Rashbas responsum is that ladies and
gentlemen may pray in the same sanctuary.
Rashbas ruling negating the need for a synagogue partition is reiterated by Beit Yosef to
Tur Choshen Mishpat no. 35 (s.v ve-khol elu bein she-hayah cheresh shoteh ve-katan ve-khulei),
even though elsewhere (Tur Orach Chaim no. 619, s.v. ve-od nahagu la-lun be-Veit ha-Knesset),
Beit Yosef actually does endorse the notion of a synagogue partition. Rashbas ruling is also
codified by Rema in Shulchan Arukh Choshen Mishpat 35:14, although Rema immediately
proceeds to cite (as a yesh omrim) the countervailing opinion of Terumat ha-Deshen that does
recognize the existence of a separate sanctuary for ladies. More significantly, Rema in Shulchan
Arukh Yoreh Deah 265:11 appears to require separate seating in the synagogue during a
circumcision celebration.55 Thus, both Beit Yosef and Rema seemingly contradict themselves as
to whether or not they accept Rashbas ruling.
Quite apart from the equivocation of Beit Yosef and Rema, Rashbas position appears
unfathomable (with all due reverence to the Rashba) in light of the gemara in Sukkah 51b-52a,
and Megillah 28a; as well as the Yerushalmi Sukkah 5:1; as well as the Tanna de-Vei Eliyahu to
Deuteronomy 23:15, all sources which augur in favour of a synagogue partition.56 Thus,
55

It is true that, as described supra, Section B, Rema actually vacillates somewhat on this question, for in his Darkei
Mosheh commentary to Tur he prohibits a lady from serving as a sandak, whereas in his subsequent gloss to
Shulchan Arukh he implies that a lady may serve as a sandak if there is no alternative. Nevertheless, even according
to the latter possibility, it is only where the lady is absolutely required as a sandak that she can enter the gentlemens
section of the synagogue. Otherwise, Rema appears to advocate for separation between ladies and gentlemen in the
synagogue.
56

See supra, note 1. [Rashba is not being questioned here on the basis of the gemara in Moed Katan 18a cited
supra, note 1, since as already mentioned there (supra, note 1), Salmat Chaim claims that the lesson of Moed Katan
18a may be limited to the study hall and inapplicable to the synagogue. On the other hand, Megillah 28a,
Yerushalmi Sukkah 5:1 and Tanna de-Vei Eliyahu to Deut. 23:15 are all relevant to the synagogue, and thus seem to
contradict Rashba. {Sukkah 51b-52a, too, is applicable to the synagogue, as it refers to avoiding levity, and levity is
indeed prohibited in the synagogue as per Megillah 28a.}]
However, without specifically identifying the Rashba, a defense of the Rashbas ruling to ostensibly negate
the need for a synagogue partition is apparently advanced by R. Ben-Zion Meir Chai Uziel, Shut Mishpetei Uziel
III, no. 6, sec. 4. R. Uziel claims that the gemara in Sukkah 51b-52a only requires a partition when the entire House
of Israel assembles (at such time as the pilgrimage festivals in the Temple). However, when a smaller and select subpopulation of Jews gathers, even for communal prayer, there is no levity and hence no need for a partition, as is
evident from the gemara in Megillah 23a which theoretically authorizes a lady to receive an aliyah. [I am grateful to
R. Gil Student for bringing R. Uziels responsum to my attention on p. 225 of his Posts Along the Way.] Needless to
say, R. Uziels thesis is hardly compelling (with all due reverence to R. Uziel), because (a) he does not account for
Yerushalmi Sukkah 5:1 or Tanna de-Vei Eliyahu to Deuteronomy 23:15; and (b) there are other ways to explain
Megillah 23a, as described above in Section B of this essay. Understandably, then, the overwhelming consensus of
poskim following the Chatam Sofer does not accept R. Uziels claim.
Actually, in all fairness to R. Uziel, the stated purpose of his responsum is not to address the question of a
synagogue partition, but rather whether ladies and gentlemen may gather in a secular forum for secular political
purposes. [Indeed, regarding the sanctity of a synagogue, R. Uziel is actually more stringent than R. Moshe
Feinstein, as observed supra, note 6.] Nevertheless, the theoretical implication of R. Uziels responsum regarding a
secular political forum is that even (by contradistinction) a synagogue would not require a partition (unless it is a
synagogue in which the entire House of Israel assembles), a theoretical implication would evidently align R. Uziel

51

Rashbas leniency has understandably been rejected by Chatam Sofer and the overwhelming
consensus of poskim who have followed. The problem is that the same overwhelming consensus
never mentions the Rashba, and so does not address this issue.57
Parenthetically, it seems to this writer that there are three alternate ways to read the
Rashbas responsum (albeit all considerably far-fetched in terms of interpreting Rashbas
language), according to any of which Rashba would indeed agree with the overwhelming
consensus of poskim who require a synagogue partition. One possibility is that Rashba agrees
that ladies and gentlemen pray separately, but subscribes to the school of thought (presented in
Section B above) that one or two gentlemen may be present in the ladies section during prayers
[and vice-versa]. It is thus possible for exactly two gentlemen to serve as witnesses for events
that occur in the ladies sanctuary. The second possibility is that Rashba agrees that ladies and
gentlemen pray separately (and even that the demographic separation must be absolute, as per
the countervailing school of thought in Section B above), but he believes that the partition
between them need not constitute a visual barrier, such that it is possible for gentlemen in the
gentlemens section to serve as witnesses for events in the ladies section. The latter interpretation
would align Rashba with those poskim described in the Section C above who envisage the
synagogue partition as either a geographic or a kinaesthetic barrier.58 A third possibility is that
Rashba agrees that ladies and gentlemen pray separately (and perhaps even that the demographic
separation must be absolute, and perhaps even that the synagogue partition must be a visual
barrier), but Rashba is simply observing that since events which occur in the ladys sanctuary
could have been [with proper foresight] rescheduled for an alternate time and place, when
gentlemen would be present at witnesses, there is no justification to employ ladies as witnesses.
[By contradistinction, no matter when and where a childbirth occurs, the nature of society
dictates that only ladies be present, and therefore ladies are accepted as witnesses regarding
matters of childbirth.59] Pursuing any one of these three alternate readings of Rashba will resolve
with the Rashba. It is thus illuminating to articulate the two objections [(a) and (b)] that are outlined in the previous
paragraph of the present footnote.
57

Particularly reflective in this regard are R. Aharon Kotlers remarks in the first paragraph of his Shut Mishnat
Rabbi Aharon, Orach Chaim no. 12. R. Kotler writes that to for ladies and gentlemen to pray in the same sanctuary
is something which is obvious and agreed from all the Sages of the generations that is prohibited, and there was
never a talmid chakham until today who suggested even the slightest consideration to permit it, and so practiced all
of Israel from time immemorial, and in all reaches of the Diaspora. With all due reverence exhibited before the
great luminary R. Kotler, it seems to this student (who is not even like a putrid piece of dust compared to a mighty
galaxy when compared to R. Kotler) that the responsum of Rashba appears to have escaped R. Kotler. Was not the
Rashba also a talmid chakham (let alone the Beit Yosef and Rema who cite him)?

58

Likewise, as explained supra notes 35 and 40, Divrei Malkiel and Teshuvot ve-Hanhagot (both members of the
visual barrier camp) allow a balcony whose occupants are theoretically visible from the gentlemens section. Thus,
according this particular (far-fetched) interpretation of Rashba, Rashba might be aligned with the Divrei Malkiel and
Teshuvot ve-Hanhagot.

59

This is not to say that a gentleman is halakhically prohibited from serving as an obstetrician in the contemporary
era. Quite the contrary, as cited by R. Simchah Bunim Lazerson in Shulchan Shelomoh, Erkei Refuah I (Jerusalem,
5766), p. 95, R. Shlomo Zalman Auerbach rules that a gentleman is fully authorized likatchilah to study obstretic
medicine [-and, once trained, is halakhically obligated to practice his medical profession], because it is a matter of
pikuach nefesh. That conclusion clearly emerges from the gemara in Sotah 21b which summons a gentleman to
rescue a married lady from drowning in the river. The gemara emphasizes that the gentleman is forbidden to claim
that he cannot occupy himself with the rescue on account of the lady being married to someone else.
Evidently, one must explain that Rashbas society was substantively different than that of the present era.
In his society, the norm was that all the obstetricians/midwives were ladies. [It is of interest to speculate that, since

52

the apparent contradiction within Beit Yosef and Rema, and will also reconcile Rashba with the
gemara in Sukkah 51b-52a and Moed Katan 18a and Kiddushin 52b, as well as the Yerushalmi
Maaser Sheni 5:3 and Sukkah 5:1, as well as the Tanna de-Vei Eliyahu to Deuteronomy 23:15.
Still, all three alternate readings appear far-fetched, with the simple meaning of Rashba
ostensibly being that no synagogue partition is ever required.60
E. PRACTICAL MANAGEMENT OF UNRESOLVED SFEKOT
Based on the insoluble sfekot that have been depicted in Sections A, B, C and D above, it
would appear appropriate to invoke the principle codified by the Rema in Shulchan Arukh
Choshen Mishpat 25:2 to the effect that an unresolved dispute (where no one side possesses
greater evidence than the other side) on a biblical prohibition is adjudicated to the side of
stringency, whereas an unresolved dispute on a rabbinic prohibition is adjudicated to the side of
leniency. The Remas principle is based on a teaching presented by Rabbi Joshua ben Korchah in
Avodah Zarah 7a and its subsequent codification in the Rambam, Hilkhot Mamrim 1:5. The
Remas principle is later cited as normative by the Shakh at the end of Yoreh Deah no. 242, as
well as in R. Jacob Reishers Torat ha-Shelamim commentary to Yoreh Deah no. 110, where he
canonizes the governing principles of the sfek sfeka process.
However, the Ritva to Avodah Zarah 7a (s.v. hayu sheneihem) notes that the poskim
themselves who participate in the original debate are personally granted a special permission to
act in accordance with their respective opinions. Accordingly, only outsiders to the dispute need
to concern themselves with the sfekot generated by the dispute, whereas the poskim who are
anecdotal evidence relates that at the time of the writing of this essay the significant majority of admissions to
medical schools is awarded to ladies, the pendulum may once again swing in the opposite direction. I.e. perhaps in
the future all the obstetricians will be ladies (with the gentleman obstretricians retrained for other medical
specialties), at which time Rashbas line of reasoning will once more be relevant.]
60

As an additional point on this subject, it seems to this student that the equivocation within the Rema in Shulchan
Arukh Choshen Mishpat 35:14 potentially resolves a question raised by R. Mordechai Willig on the exponents of the
kinaesthetic barrier theory (as well as the exponents of the geographic barrier theory).
In his lecture of Dec. 11, 2010 (and digitally recorded as referenced supra, note 11), R. Willig asks that
since the Rema cites an opinion which authorizes ladies to serve as witnesses for events that transpire in the ladies
section of the synagogue, this implies that gentlemen cannot possibly see there. [Otherwise, why not simply employ
gentlemen as witnesses?] R. Willig concludes that he does not relish the prospect of contradicting R. Moshe
Feinstein (who does not demand a visual barrier), but that R. Feinsteins position seemingly may have to be
overturned in light of this Rema, particularly since R. Feinstein never relates to this Rema.
It seems to (le-havdil ani ha-katan) this student that a potential resolution to R. Willigs question lies in the
Remas equivocation. Viz., the Rema cites a yesh omrim that ladies may serve as witnesses, but also cites a
conflicting opinion. Thus, from the Rema itself nothing definitive can be proven on synagogue partition architecture.
[Moreover, one might add that even the yesh omrim may simply mean that gentlemen do not customarily look over
the synagogue partition, even if it is theoretically possible for them to do so. Indeed, in Iggerot Mosheh, Orach
Chaim I, no. 39, s.v. u-vazeh muvan peirusho, R. Feinstein suggests that Rambams Peirush ha-Mishnayot to
Sukkah 51a who explicitly refer to crypsis might possibly be understood in an analogous manner. I.e., R.
Feinstein suggests that perhaps when the Rambam refers to crypsis, he does not mean that it is impossible for the
gentlemen to see the ladies sanctuary, but rather that it is unlikely for them to do so (since the ladies are already
separated from the gentlemen in a socially awkward manner). Mutatis mutandis, the same interpretation could be
given to Rema. Since gentlemen are unaccustomed to look at the ladies sanctuary, gentlemen cannot serve as
reliable witnesses.] On the other hand, R. Willigs point that one might (as distinct from necessarily) interpret the
Rema to possibly be advocating a visual barrier is well taken, and confirms the conclusion of supra, Section C, that
there is a safek that perhaps the synagogue partition needs to constitute a visual barrier.

53

actual actors in the dispute are granted full sovereignty by the Oral Torah to act as their own
expert analysis dictate. The Minchat Chinukh (mitzvah no. 78) concurs fully with the Ritva,
declaring it as axiomatic and obvious that each decisor behave in accordance with his own
conscience, even if it results in a leniency in the context of a controversy over a biblical
prohibition. Each posek involved in the dispute is authorized by the Holy One, blessed be He, to
rely exclusively on his own position.
Chazon Ish (Yoreh Deah 150:1-5) extends the concept of rabbinic sovereignty a step
further. He argues that not only the posek himself, but all the disciples of that posek as well, are
authorized to follow his decision, even if that decision cannot be emulated by Jewry at large.
Chazon Ish offers two proofs to his novel thesis. Firstly, the gemara in Eruvin 6b cites a
beraita which empowers any person to choose between two clashing poskim (such as the schools
of Shammai and Hillel), so long as one consistently adheres to the teachings of that posek. Yet,
notes the Chazon Ish, this curiously contradicts Avodah Zarah 7a. Evidently, one must answer
that Eruvin 6b refers to a situation where an individual is the disciple of both of the clashing
authorities, whereas Avodah Zarah 7a refers to a situation where an individual is not a disciple of
either of the clashing authorities.
Secondly, the gemara in Shabbat 130a describes a dispute between Rabbi Eliezer and
Rabbi Akiva as to whether the preparatory steps to circumcision override the Sabbath.
Eventually, the Sages ruled that the halakhah follows Rabbi Akiva that the preparatory steps are
forbidden. But until then, the citizens of Rabbi Eliezers town would routinely desecrate the
Sabbath in accordance with Rabbi Eliezers permissive view. Indeed, the gemara reports how the
citizens of such a town were actually rewarded from Heaven with blessing for this commitment
to the mitzvah of circumcision.61 Obviously, argues Chazon Ish, the citizens were aware that
Rabbi Akiva opposed Rabbi Eliezer, and yet they nonetheless opted to act leniently in the
context of a dispute over a biblical prohibition (i.e. the desecration of Sabbath), in apparent
violation of Avodah Zarah 7a. They must have been entitled to do so since they were all disciples
of Rabbi Eliezer.
However, Chazon Ishs extension of rabbinic sovereignty is contradicted by R. Rephael
Joseph Chazan, Chikrei Lev, Yoreh Deah no. 87 (s.v. gam). R. Chazan notes the apparent
incompatibility between Eruvin 6b and Avodah Zarah 7a. He resolves the problem by submitting
that Eruvin 6b applies only where one camp possesses greater numbers and the other camp
possesses greater genius.62 Otherwise, everyone, including any disciple of the poskim
participating in the dispute, is obligated to follow the rule outlined by R. Joshua ben Korchah in
Avodah Zarah 7a.

61

Although logic would dictate that the gemara is referring to the very same citizens previously mentioned (i.e. the
citizens of Rabbi Eliezers hometown), a careful survey of the passage in the gemara reveals an ambiguity to this
effect. Namely, the gemara could be plausibly interpreted as referring to two separate towns: in one (viz. Rabbi
Eliezers hometown), his ruling was followed; and in yet another (which was not Rabbi Eliezers hometown but
which was populated with Rabbi Eliezers devotees), his ruling was followed, and the citizens were rewarded from
Heaven with blessing for this commitment to the mitzvah of circumcision.

62

Although not mentioned by the Chikrei Lev, it is interesting in this regard to emphasize that neither the Rif, nor
the Rambam, nor the Rosh ever cite the beraita in Eruvin 6b as being normative, whereas they all codify R. Joshua
ben Korchahs position in Avodah Zarah 7a. Indeed, the gemara in Avodah Zarah 7a explicitly states that the
halakhah follows R. Joshua ben Korchah against his opponents on this matter. Thus, there is good reason to assign
primacy to the ruling of R. Joshua ben Korchah, as does the Chikrei Lev. [Indeed, perhaps one could even submit
that R. Joshua ben Korchah disputes the beraita in Eruvin 6b.]

54

As for how the Chikrei Lev might address the Chazon Ishs proof from Shabbat 130a, it
seems to this writer that one could cogently submit that the townspeople were simply unaware
that Rabbi Akiva opposed Rabbi Eliezer on this matter, or at least they were unaware that Rabbi
Akiva possessed sufficiently credible evidence against Rabbi Eliezer to generate a safek deOraita.63
Without identifying either the Chazon Ish or the Chikrei Lev, R. Moshe Feinstein visits
the topic of rabbinic sovereignty in his Dibberot Mosheh to Tractate Shabbat, no. 10. For the
bulk of the recorded lecture, R. Feinstein presents (what is essentially) the Chazon Ishs thesis,
employing precisely the same two sources as did his predecessor. R. Feinstein philosophically
rationalizes this chiddush by observing that there are already two well established exceptions to
the principle that safek de-Oraita le-chumra: a doubt regarding orlah fruit in the Diaspora, and a
doubt regarding ritual defilement in the public domain. Both classes of doubts are adjudicated to
the side of leniency, even though both represent matters of Torah law. Thus, he continues, it is
entirely reasonable that the Oral Torah should present yet a third exception, viz., that the students
of a posek who is lenient in the context of an unresolved dispute over a biblical question may
themselves emulate the lenient ruling of their master. However, in the final section of the lecture,
R. Feinstein reverses himself by conceding that it is possible that the sources he has marshaled in
favour of this chiddush might not be compelling. Apparently, then, R. Feinstein is willing to
entertain Chikrei Levs countervailing position as a possibility.
On the other hand, R. Feinsteins Iggerot Mosheh, Even ha-Ezer IV, no. 100, sec. 4
seems to follow Chazon Ish. There, writing regarding unresolved disputes on a mitzvah deOraita, R. Feinstein submits that until the halakhah is determined in the Chamber of Hewn

63

Indeed, this appears to be precisely R. Elchanan Wassermans explanation of the episode in his Kontress Divrei
Sofrim no. 5, sec. 18. R. Wasserman states that the townspeople of Rabbi Eliezer were only allowed to desecrate the
Sabbath for the preparatory steps to a circumcision until such time as they were aware that the other Sages
(following Rabbi Akivas dissenting opinion) were actively discussing the matter with Rabbi Eliezer. From that
point onward, even Rabbi Eliezers townspeople were obligated to be stringent on account of safek de-Oraita lechumra. This was true even before the Sanhedrin formally voted that the halakhah follows Rabbi Akiva.
Now, once the Sanhedrin formally voted that the halakhah follows Rabbi Akiva, anyone who followed
Rabbi Eliezer would be regarded as per Shut Chatam Sofer, Yoreh Deah no. 356 to be definitely desecrating
Shabbat. Thus, it emerges from R. Wassermans analysis that there were three stages within Rabbi Eliezers town:
1) At first, when the townspeople knew only Rabbi Eliezers ruling, the townspeople of Rabbi Eliezer were
authorized (and obligated) to follow Rabbi Eliezer. 2) Once Rabbi Akiva began actively debating Rabbi Eliezer
(such that it became clear Rabbi Akiva possessed credible evidence to oppose Rabbi Eliezer), Rabbi Eliezers
townspeople were obligated to stop following Rabbi Eliezer, as a matter of safek de-Oraita le-chumra, although
Rabbi Eliezer himself was still authorized to follow his own position. 3) Once the Sanhedrin voted like Rabbi Akiva,
it was effectively discovered that to follow Rabbi Eliezer would represent a definite desecration of the Sabbath.
Moreover, even Rabbi Eliezer himself could no longer follow his own position.
[Paradoxically, however, R. Wassermans approach to the gemara in Avodah Zarah 7a follows neither
Chazon Ish nor Chikrei Lev. Namely, in Kontress Divrei Sofrim no. 4 (to which R. Wasserman refers his readers in
Kontress Divrei Sofrim no. 5, sec. 18), R. Wasserman adopts the position (which is essentially a compromise
between Chazon Ish and Chikrei Lev) that Avodah Zarah 7a applies to debates where the two sides are stringent vs.
lenient, whereas Eruvin 6a applies to debates where each side reciprocally possesses both a leniency as well as
stringency. In any event, as indicated earlier in this footnote, R. Wassermans analysis of Shabbat 130a serves to
support Chikrei Levs position, even if R. Wasserman himself disagrees with Chikrei Lev (and also disagrees with
Chazon Ish).]

55

Stone, every sage is authorized to rule in accordance with his opinion, and all those who ask him
are required to follow him whether for leniency or for stringency.64
Among subsequent writers, the Chazon Ishs thesis is embraced by R. Jacob Israel
Kanievski (the Steipler Gaon), Kehillot Yaakov to Tractate Berakhot, no. 1; 65 and by R. Aaron
Judah Halevi Grossman, Shut Ve-Darashta ve-Chakarta IV, Yoreh Deah no. 24; but is
disputed by R. Ben-Zion Abba Shaul, Shut Or le-Tziyon I, Orach Chaim no. 7, sec. 2. R. Shaul
asserts that Eruvin 6b is only directed to a halakhic authority who is independently qualified to
adjudicate between the clashing positions of previous poskim. Otherwise, a Jew must be stringent
regarding any unresolved dispute in the context of a biblical prohibition, as stated by R. Joshua
ben Korchah, even when his personal posek is of the lenient persuasion.
True to form, R. Shaul in his subsequently published Shut Or le-Tziyon II, mavo, anaf
vav, opines that originally the townspeople of Rabbi Eliezer in Shabbat 130a were only allowed
to desecrate the Sabbath for preparatory steps to the circumcisions because they did not know
that Rabbi Akiva disputed Rabbi Eliezer. Had they originally known that Rabbi Akiva disputed
Rabbi Eliezer, they would have had to be strict out of doubt. Amazingly, though, R. Shaul
continues that since the townspeople of Rabbi Eliezer did not originally know of Rabbi Akivas
strict view and were therefore originally obligated to follow Rabbi Eliezers ruling, then even
after Rabbi Akivas countervailing position became known to them the townspeople were still
entitled to follow their lenient position. R. Shaul claims this is subsumed under the Rambams
declaration in Hilkhot Shemitah ve-Yovel 10:6 that the received tradition and the established
practice are great pillars in halakhic decision making.66
In any event, Chazon Ishs thesis is also apparently disputed by R. Avigdor Halevi
Neventzal on p. 237 of the latters Sichot le-Sefer Bemidbar, where he adopts a position similar
to that of the Chikrei Lev. It further seems to this writer that the Chazon Ishs thesis is implicitly
disputed by R. Shlomo Zalman Auerbach, Shut Minchat Shelomoh I, no. 44, sec. 2. R.
64

I am grateful to R. Doron Beckerman and Mori ve-Rabbi R. Lawrence Kaplan for bringing this highly valuable
insight to my attention. [At the same time, it is noteworthy that R. Feinstein ultimately refers his his interlocutor to
examine the previously published treatise in the Dibberot Mosheh, Tractate Shabbat, no. 10.]
65

I am grateful to R. Henoch Singer for bringing this valuable source to my attention.

As a support to the Chazon Ish, the Steipler Gaon marshals the Sifrei to Deuteronomy 17:9 which declares
that you have only a judge who lives in your days. R. Kanievski interprets the Sifrei to mean that a student should
always follow his halakhic decisor, even when the decisor is lenient in the context of an unresolved biblical dispute
amongst the poskim. However, it seems to this writer that the Sifrei, in context, only precludes worrying about the
unannounced opinions of poskim of previous eras, but says nothing about the adjudication of unresolved rabbinic
disputes of the contemporary era, and so is entirely compatible with the contrary approach of the Chikrei Lev.

66

I am grateful to R. Doron Beckerman and Mori ve-Rabbi R. Lawrence Kaplan for bringing this valuable source to
my attention.
With all due reverence manifest before R. Ben-Zion Abba Shaul, it seems to this student that the
extrapolation from Rambam could be challenged. Rambam is establishing that the calculation of the reckoning of
the Shemitah year of the entire Israeli Jewish community (perhaps better terned the Palestinian Jewish community)
must be accurate, based on a tradition that the Israelis received from their ancestors. Although Rambam personally
had a different calculation, he conceded to the Israelis as a matter of halakhah le-maaseh because they were ones
actually living in the Holy Land and practicing the Shemitah year. Those who have practical experience in observing
Shemitah are to be trusted more so that someone (such as the Rambam himself) who did not have practical
experience observing Shemitah. But this is a markedly different issue than claiming that a community which has
always been lenient regarding a dispute on a mitzvah de-Oraita may continue to be lenient, when an equally cogent
stringent community exists. Both communities have practical experience. Perhaps, then, in light of R. Joshua ben
Korchahs principle, the lenient community should change its ways for the future and become strict out of doubt.

56

Auerbach posits that when two poskim issue contradictory rulings regarding a rabbinic
prohibition, and they present their polemical evidence to one another, then even when the
stringent decisor is convinced that his opponent is absolutely in error, he must officially concede
(when subsequently asked by an interlocutor for a practical halakhic decision) that the halakhah
follows the lenient opinion.67 Evidently, R. Auerbach is declaring that R. Joshua ben Korchahs
principle reigns supreme. And so it would emerge from R. Auerbachs words that, mutatis
mutandis, a Jew must be stringent regarding any unresolved dispute in the context of a biblical
prohibition, even when his personal posek is of the lenient persuasion.68
Thus, the precise parameters of rabbinic sovereignty are fraught with controversy, and it
would therefore appear to this student that, as a matter of practice, only the poskim themselves
who participate in the debate should be assumed to enjoy the sovereignty to act leniently on an
unresolved dispute regarding a biblical interdiction. All others, including the direct disciples of
the poskim, should behave stringently.69
67

Although not directly affecting the dimension of rabbinic sovereignty presently under discussion, it is worthwhile
to mention that one aspect of R. Auerbachs ruling is cogently challenged by R. J. David Bleich on pp. 109-110 of
his Lomdut and Pesak: Theoretical Analysis and Halakhic Decision-Making [published in The Conceptual
Approach to Jewish Learning (edited by R. Yosef Blau, KTAV Publishing, 2006)]. R. Bleich marshals evidence
which indicates that a posek is never forced to issue a lenient ruling with which his own conscience disagrees. Thus,
for R. Bleich, the stringent decisor in an unresolved dispute amongst the poskim regarding a rabbinic prohibition
need not (and, in fact, should not) answer permissively. Rather, the decisor should excuse himself from adjudicating
any practical cases.
68

This inference from R. Auerbach is noted by R. Yitzchak Mitnick in his Avodah Berurah commentary (Brooklyn,
5770) to Avodah Zarah 7a.

69

The reason behind the stringent conclusion of this student is that safek de-Oraita le-chumra. Thus, the dispute
between the Chazon Ish et al. vs. the Chikrei Lev et al. should be adjudicated to the side of stringency. And even
though the dispute between the Chazon Ish et al. and the Chikrei Lev et al. actually focuses upon a safek issur deOraita rather than upon a vadai issur de-Oraita, it nevertheless remains the case that the unresolved dispute must be
adjudicated to the side of stringency, due to the directive of the Shakh to Yoreh Deah no. 110 (klalei sfek sfeka no.
19) that one cannot invoke safek de-rabbanan le-kula on a second question involving what originally stems from a
first safek de-Oraita problem.
Philosophically stated otherwise, the poskim themselves who participate in the original debate are by their
nature absolutely convinced of the veracity of their respective positions. Thus, for these poskim, there is no safek
altogether (-the opposing position is dismissed as not even rising to the threshold of a safek). Each posek will
therefore follow his own position in good conscience because from the vantage point of each posek it is the only
epistemological possibility that exists. By contradistinction, the disciples of the posek being neutral observers to
the debate where both sides possess credible evidence (if indeed the outside observer discovers that both sides
possess credible evidence) cannot be oblivious to the fact that there are conflicting opinions, and therefore must
regard the matter as being subject to a safek.
Indeed, when the discussion is seen through this philosophical prism, it may arguably be possible to blur
the distinction between Chikrei Lev and Chazon Ish altogether. Chazon Ish (Yoreh Deah 150:1) speaks of the
authoritation to follow ones posek to be lenient on a disputed question of a mitzvah de-Oraita if the posek is close
to him, and he [the student] always listens to his teachings in the majority of commandments. Under such
circumstances, the student is presumably so shaped by the teachers method of learning that the student cannot see
the Halakhah from any other perspective than the perspective of his teacher, and thus for the student no safek
actually exists (just like for the teacher no safek exists). However, would a controversial issue arise such that the
student be truly aware that the question of Halakhah being debated is actually subject to credible evidence on both
competing sides, the student would presumably be required to acknowledge he is in a state of safek. Certainly, in the
case of the question of the synagogue partition, this essay (in Sections A, B and C above) has argued that each of the
competing camps possesses credible evidence, and so all readers of this essay should presumably be in a state of
safek as to what are the required dimensions of the synagogue partition.

57

Nevertheless, although a single doubt regarding a biblical prohibition must be adjudicated

to the side of stringency, a compounded doubt (sfek sfeka) can be effective in generating a
leniency. Accordingly, one might attempt to justify a synagogues reliance upon a tenhandbreadth partition with the following sfek sfeka le-kula:
(i)
(ii)

Safek le-kula #1: Maybe the halakhah follows the geographic barrier camp
(described in Section B above), such that a ten-handbreadth partition suffices.
Safek le-kula #2: Even if it is not certain whether the halakhah follows the
geographic barrier camp, maybe the halakhah follows the position (outlined in
Section A above) that a partition in a synagogue constitutes a mitzvah derabbanan, such that one could invoke safek de-rabbanan le-kula in order to rely
on the geographic barrier camp. [This second safek le-kula is strengthened by the
responsum of Rashba described in Section D above which ostensibly negates the
need for a synagogue partition altogether (both mi-de-Oraita and mi-derabbanan.]

However, in practice, this sfek sfek le-kula proves unsuccessful, due to the directive of R.
Shabtai Cohen in his Shakh commentary to Yoreh Deah no. 110 (klalei sfek sfeka no. 19) that
one cannot invoke safek de-rabbanan le-kula on a second question involving what originally
stems from a first safek de-Oraita problem. [And even taking into consideration the
aforementioned Rashba which ostensibly negates the need for a synagogue partition: As
explained in Section D above, it is unclear whether the halakhah follows his responsum, seeing
as (a) the Rashba is inconsistent with the gemara in Sukkah 51b-52a and Moed Katan 18a and
Kiddushin 52b, as well as the Yerushalmi Maaser Sheni 5:1 and Sukkah 5:1, as well as the
Tanna de-Vei Eliyahu to Deuteronomy 23:15; (b) the Beit Yosef and Rema both contradict
themselves in canonizing the Rashba; (c) the overwhelming consensus of poskim following
Chatam Sofer do not even mention the Rashba; and (d) Rashba himself could be re-interpreted in
three alternate (albeit far-fetched) ways.] And so a safek de-Oraita presumably remains to
require a synagogue partition, thereby prohibiting a synaogogue from relying exclusively on a
ten-handbreadth high partition.
A different sfek sfeka le-kula that might be employed in order to justify a synagogues
reliance upon a ten-handbreadth high partition would be as follows:
(iii)

(iv)

Safek le-kula #1: Maybe the halakhah follows the argument (outlined in Section A
above) that the construction of a Temple partition constituted a mitzvah derabbanan, in which case the requirement for a synagogue partition would also be
de-rabbanan, which in turn would authorize invocation of safek de-rabbanan lekula to rely on the geographic barrier camp.
Safek le-kula #2: Maybe the halakhah follows the argument (outlined in Section A
above) that the sanctity of a synagogue is only rabbinic in nature, in which case
the requirement for a synagogue partition would also be de-rabbanan, which in
turn would authorize invocation of safek de-rabbanan le-kula to rely on the
geographic barrier camp.

Nevertheless, it seems to this writer that, in practice, such a sfek sfeka le-kula also proves
problematic, due to the eleventh principle of the Shakhs klalei sfek sfeka, which dictates that
when both doubts arise from the same source (mi-shem echad), they are only reckoned as a
single safek le-kula. It would appear that considerations (iii) and (iv) arise on the basis of
58

predicates that are sufficiently similar to be regarded as mi-shem echad. [And even if the Rashba
is factored into consideration here, as well, it would still seem to be a sfek sfeka mi-shem echad,
and therefore an inadequate basis for leniency.]
By contradistinction, if a synagogue employs a kinaesthetic barrier as its partition, then it
does indeed enjoy a genuine sfek sfek le-kula on which to rely, as follows:
(v)
(vi)

Safek le-kula #1: Maybe the halakhah follows the geographic barrier camp, such
that a ten-handbreadth partition suffices.
Safek le-kula #2: Even if the halakhah does not follow the geographic barrier
camp, maybe the halakhah follows the kinaesthetic barrier camp.

Admittedly, however, the synthesis of a novel sfek sfeka le-kula nowadays is itself
controversial. The Shakh's final provision among his thirty-six rules governing the application of
a sfek sfeka le-kula (Yoreh De'ah no. 110) dictates that no novel sfek sfeka le-kula be constructed
nowadays. R. Jacob of Lisa, in his Chavot Daat (ad. loc.), affirms this position. Nevertheless,
several authorities cited by R. Feivel Cohen in the latters Badei ha-Shulchan (Yoreh Deah no.
110, 277) disagree and do permit the synthesis of a novel sfek sfeka nowadays. R. Cohen
himself champions the latter school of thought, as does R. Ovadiah Yosef in his Shut Yabi'a
Omer VI, Yoreh Deah no. 24.
It would appear to this student that the decisive factor in deciding whether to allow
constructing the novel sfek sfeka at hand is that Badei ha-Shulchan (ibid., 278) cites the Chavot
Daat (ibid.) to the effect that even the Shakh who refuses to synthesize any novel sfek sfeka
will allow the synthesis of a sfek sfeka where there is a question whether there is any potential
prohibition in the fact pattern altogether. For instance, if there a doubt whether an animal of prey
even entered a flock of sheep, and a further doubt whether the animal of prey clawed one of the
sheep, the Shakh will countenance a sfek sfeka to permit assuming that each of the sheep are
kosher, since it is not even clear that any potential prohibition has devolved upon any of the
sheep. Likewise, since as described in Section A above there is some question whether the
obligation of a synagogue partition actually constitutes a mitzvah de-Oraita [-a question that is
possibly strengthened by the responsum of the Rashba showcased in Section D], then although
the evidence that it might be a mitzvah de-Oraita is sufficiently powerful that the subsequent
dispute among the poskim regarding the dimensions of the partition (Section C) must be
adjudicated to the side of stringency as per the Shakhs nineteenth provision governing the
application of a sfek sfeka le-kula, nevertheless the initial question that was generated whether in
fact a synagogue partition constitutes a mitzvah de-Oraita is sufficient to trigger the Chavot
Daats leniency to synthesize a novel sfek sfeka le-kula. Accordingly, a kinaesthetic barrier
should suffice in the synagogue, thanks to the sfek sfeka le-kula described as (v)-(vi).
Regarding the unresolved dispute in Section B above [vis--vis the required absoluteness
of the demographic separation that is orchestrated by the partition], the principle that safek deoraita le-chumra dictates that, in the absence of any partition whatsoever, one cannot allow even
so much as one lady to stand among the gentlemen, or even so much as one gentleman to stand
among the ladies.70 However, where there is a ten-handbreadth high partition [which, this section
70

However, since as concluded supra, note 29 there remains an unresolved doubt as to whether the stringent
poskim vis--vis absoluteness of demographic separation would allow a lady to enter the gentlemens section letzorekh (when necessary for a mitzvah), one could envisage a sfek sfeka le-kula to permit a lady to stand among the
gentlemen le-tzorekh, as follows: Perhaps the halakhah follows the lenient poskim who allow one or two ladies to
enter the gentlemens section, and even if the halakhah follows the stringent poskim, perhaps the stringent poskim

59

has already concluded is normally inadequate, due to a safek issur de-Oraita], one may
countenance the presence of one or two ladies being present while there is a quorum of
gentlemen, or conversely one or two gentlemen being present while there is a congregation of
ladies, thanks to the following sfek sfeka:
(vii)

Safek le-kula #1: Perhaps the halakhah follows the most lenient school of thought
outlined above in Section B (viz. Tosafot, R. Eliezer Silver, the Bnei Vanim and
one version of Iggerot Mosheh) that it is permissible for one or two ladies to be
present among gentlemen and for one or two gentlemen to be present among
ladies in the Sanctuary.
(viii) Safek le-kula #2: Perhaps the halakhah follows the geographic barrier camp, such
that a ten-handbreadth partition suffices.
F. A NOVEL SOURCE FOR LENIENCY
FROM A HALAKHAH LE-MOSHEH MI-SINAI
Section E above concluded that a synagogue cannot rely exclusively on a geographic
barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic barrier, in
order to benefit from a sfek sfeka le-kula.
However, upon further consideration, an alternate sfek sfeka le-kula might be proposed in
order attempt to justify reliance upon a geographic barrier alone. This surprise about-face would
arise from the words of R. Abraham Weinfeld, Shut Lev Avraham, no. 135.
R. Weinfeld, after surveying the responsa of both R. Moshe Feinstein as well as R. Joel
Teitelbaum, inquires that if it is indeed the case as both of them posit (and has been discussed
above in Section A) that the partition in the Temple constitutes a mitzvah de-Oraita, then how
was it possible for generations of righteous Jews to be transgressing a biblical prohibition when
they assembled in the Temple for so many years until the balcony was actually built?71
actually allow a lady to enter the gentlemens section le-tzorekh. And, conversely, the same sfek sfeka le-kula would
allow a gentleman to enter the ladys section.
In practice, the contemporary realities of the synagogue are such that it is incongruous to anticipate a
situation where the ladys presence in the gentlemens section actually represents the necessity of a mitzvah.
However, one hypothetical that may be constructed to this effect is where the lady is a healthcare professional (such
as a physician, nurse or paramedic) who is responding to a lifesaving medical emergency in the gentlemens section
in the middle of prayer services. Assuredly, the saving of life (pikuach nefesh) overrides virtually all Torah
commandments [including Leviticus 19:30], as per the gemara in Yoma 85b. Nevertheless, one must mitigate the
infraction to as great an extent possible. Thus, the question may fairly be posed that perhaps tefillah be-tzibbur must
be suspended indefinitely so long as the healthcare responder is present in the gentlemens section. Thanks to the
sfek sfeka le-kula formulated herein, however, tefillah be-tzibbur could indeed continue. [Presumably, the same
should be true for the converse situation of a gentleman who is a healthcare professional who is responding to a
lifesaving medical emergency in the ladies section. However, since depending on the architecture of the ladies
section there may be a prohibition against yichud for the gentlemen to enter the ladies section (as mentioned
supra, note 20), a resolution of that problem is beyond the scope of the present essay.]
[Actually, since as explained supra, note 11 R. Willig quotes R. Soloveitchik as ruling that (because of
Leviticus 18:3 and/or Deuteronomy 23:15) it is forbidden for Jewish ladies and gentlemen to pray tefillah be-tzibbur
while congregated together in the same sanctuary even under circumstances of pikuach nefesh, it emerges that the
necessity for a sfek sfeka le-kula bespoken by the present footnote may actually be essential to permit the tefillah betzibbur to continue not merely to mitigate the severity of the infraction of Leviticus 19:30 but because of the
letter of the law of Leviticus 18:3 and/or Deuteronomy 23:15.]
71

This question has already been addressed supra, note 9. To that effect, R. Weinfelds words (among others) were
already cited and analyzed there, but will now be treated further in this section of the essay.

60

Because of this conundrum, R. Weinfeld advances the highly novel proposition that the
Temple partition indeed represents a biblical obligation but not because of Leviticus 19:30.
[Thus, R. Weinfeld disputes R. Feinstein, R. Teitelbaum and company who invoke Leviticus
19:30.] Rather, opines R. Weinfeld, the biblical obligation is a purely oral tradition revealed to
Moses at Mount Sinai (Halakhah le-Mosheh mi-Sinai) that whenever ladies and gentlemen
assemble anywhere, under any circumstances, they must always assemble separately. And it is to
this Halakhah le-Mosheh mi-Sinai that the gemara refers in Sukkah 52a when it declares, in
elucidating Zechariah 12:12, that amrah torah anashim levad ve-nashim levad the Torah says
that gentlemen must stand alone and ladies must stand alone. The source in the Torah where
this is actually said is a Halakhah le-Mosheh mi-Sinai, argues R. Weinfeld, and the prophet
Zechariah alludes to this concept. Leviticus 19:30 is obviously not the source in question,
continues R. Weinfeld, since Leviticus 19:30 applies only to the Sanctuary, whereas the events
described by the prophet Zechariah 12:12 will occur outside the Sanctuary. Rather, there must be
an independent Halakhah le-Mosheh mi-Sinai which requires that ladies and gentlemen
congregate separately anywhere and everywhere, and this is the original reason why, as recorded
in Sukkah 51b, ladies and gentlemen were always stationed separately at the Rejoicing of the
Water Drawing, even before any balcony was constructed.
Later on, writes R. Weinfeld, the Sages realized from Zechariah 12:12 that they are
authorized to define the parameters of the Halakhah le-Mosheh mi-Sinai by appending the
additional requirement of a partition, if that is what is deemed necessary by the Sages in order to
prevent levity. Once legislated by the Sages, the partition itself is encompassed within the
Halakhah le-Mosheh mi-Sinai, and so the Halakhah le-Mosheh mi-Sinai thenceforth necessitated
a balcony. Even so, the previous generations were not retroactively deemed to transgress the
Halakhah le-Mosheh mi-Sinai, since in those previous generations the Halakhah le-Mosheh
mi-Sinai demanded only separation and not segregation.
If R. Weinfelds thesis is accepted, then it emerges that the obligation of a synagogue
partition does not constitute a mitzvah de-Oraita of Leviticus 19:30 but rather a Halakhah leMosheh mi-Sinai. [Moreover, it would emerge, according to R. Weinfeld, that a partition
between ladies and gentlemen would be required because of the Halakhah le-Mosheh mi-Sinai at
all assemblies, and not just in the synagogue.72] Paradoxical as it may seem, this would actually
impact leniently on the required stature for a synagogue partition, because R. Joseph ben Meir
Teomim in his Pri Megadim commentary on Shulchan Arukh Yoreh Deah, Hanhagat Shoel
Vinishal writes that even though a Halakhah le-Mosheh mi-Sinai is a matter of Torah law,
nevertheless the Oral Torah itself dictates that a doubt regarding any Halakhah le-Mosheh miSinai be adjudicated to the side of leniency. If so, then one could advance a sfek sfeka le-kula that
the three-way dispute among the poskim surveyed in Section C [regarding the mathematical
specifications of the synagogue partition] be adjudicated completely to the side of leniency, such
that a geographic barrier would suffice. The sfek sfeka le-kula materializes as follows:

72

However, an exhaustive survey and conclusive determination of whether or not separation (and perhaps even
segregation) is required as a matter of practical halakhah at every event where ladies and gentlemen assemble
(unrelated to tefillah be-tzibbur) is well beyond the scope of this essay. This essay is concerned exclusively with the
applied halakhah of what kind of partition is needed during the prayer services. Still, to a certain extent, the question
of whether a universal Halakhah le-Mosheh mi-Sinai as postulated by R. Weinfeld actually exists does bear
ramifications upon the synagogue partition, as will now be underscored in the text.

61

(i) Safek le-kula #1: Perhaps the halakhah follows the poskim surveyed in Section A
above (R. Henkin, R. Schwarz, R. Silber, R. Soloveitchik) who believe that a synagogue
partition represents a mitzvah de-rabbanan, such that any genuine doubt regarding the
dimensions of the partition should be adjudicated to the side of leniency.
(ii) Safek le-kula #2: Perhaps the halakhah follows R. Weinfeld, as described in this
section, to the effect that the synagogue partition is required by virtue of a mitzvah de-Oraita
which is a Halakhah le-Mosheh mi-Sinai. And a genuine doubt regarding a Halakhah le-Mosheh
mi-Sinai is adjudicated to the side of leniency.
Such a sfek sfeka le-kula would truly endanger and overturn the conclusions of Section E
above.
Nevertheless, it seems to this writer that upon even further analysis such a sfek sfeka
le-kula is subject to convincing refutation, and therefore that the conclusions of Section E are
rescued.
Firstly, it may be observed that R. Weinfelds claim that there is a Halakhah le-Mosheh
mi-Sinai requiring separation of ladies and gentlemen in all places at all events is contradicted by
the Yerushalmi in Maaser Sheni 5:3 referenced in Section A. That Yerushalmi never questioned
the possibility of ladies and gentlemen eating maaser rishon together anywhere in the universe
[as per you shall eat it in any place, you and your houses (Numbers 18:31)] except in the
Temple Sanctuary itself. Thus, the Yerushalmi clearly understands that only in the Temple
Sanctuary is there a prohibition against ladies and gentlemen congregating together, contrary to
R. Weinfelds claim of a Halakhah le-Mosheh mi-Sinai that applies in all locations. And the
interdiction to which the Yerushalmi alludes can be none other than Leviticus 19:30.
Of course, one may logically defend R. Weinfeld by positing that the Talmud Bavli (in
Sukkah 52a) disagrees with the Yerushalmi. After all, R. Weinfeld marshals proof for his
position from the language of amrah torah in Sukkah 52a. But, on the other hand, maybe there
is no dispute between the Bavli and the Yerushalmi. Perhaps when the Bavli declares that amrah
torah anashim levad ve-nashim levad the Torah says that gentlemen must stand alone and
ladies must stand alone, it means that for a eulogy to be emotionally heartfelt and offered with
reverence, it must occur with ladies and gentlemen assembled separately. Thus, Zechariah 12:12
would be serving as a gilui milta (illuminating reflection) as to the true meaning of reverence that
needs to be achieved in the Temple Sanctuary as per Leviticus 19:30. That such a gilui milta can
exist is established by the gemara in Bava Kamma 2b. Ergo, the synagogue partition is not a
Halakhah le-Mosheh mi-Sinai whose doubts would be adjudicated leniently, but rather a mitzvah
de-Oraita of Leviticus 19:30 whose doubts would be adjudicated stringently. [And as for R.
Weinfelds initial trailblazing question as to how righteous Jews assembled in the Temple for so
many years even before the balcony was constructed, there are alternative answers offered in a
note appearing earlier in this essay.73]
Additionally, as R. Moshe Feinstein observes in Iggerot Mosheh, Orach Chaim I, no. 41,
the talmudic discussions in Tractate Pesachim regarding how ladies and gentlemen eat the meat
of the Paschal offering in the same home seem to prove that it is permissible (outside of the
Sanctuary and outside of the synagogue) for ladies and gentlemen to congregate together. Such a
thesis is clearly incompatible with R. Weinfelds claim of a Halakhah le-Mosheh mi-Sinai
requiring separation at all events. R. Weinfeld takes cognizance of this problem and answers that
what the gemara in Pesachim actually means is that ladies and gentlemen eat the Paschal
73

Supra, note 9.

62

offering on separate sides of the room (without an intervening partition). Yet, although never
cited by either R. Feinstein or R. Weinfeld, R. Jacob Emden (Mor u-Ketziah commentary on
Tur Orach Chaim 151, s.v. ve-khatav be-Semak de-seudat mitzvah sharyah) appears to
support R. Feinsteins interpretation, since R. Emden writes to forbid mixed seating (zekharim unekevot yachdav) at a wedding meal when the wedding meal happens to take place inside a
synagogue sanctuary. The implication of R. Emdens words seems to be that at any normal
wedding meal (which occurs outside a synagogue sanctuary), mixed seating is permissible,
without contradicting any Halakhah le-Mosheh mi-Sinai.74 [Perhaps R. Weinfeld might answer
74

R. Emdens words further imply that at any event which occurs in a synagogue sanctuary and which is neither a
wedding meal nor tefillah be-tzibbur, mixed seating is permitted. This is because it is only mixed seating at a
wedding meal which occurs in a synagogue sanctuary that Mor u-Ketziah outlaws in Orach Chaim 151. [And, as
already referenced supra, note 1, Mor u-Ketziah forbids mixed seating for tefillah be-tzibbur both in Orach Chaim
55 and Orach Chaim 282.] Thus, for example, R. Emden would permit mixed seating at a lecture (outside the time
of any scheduled tefillah be-tzibbur) to be held in a synagogue sanctuary.
However, this further implication of R. Emden is evidently disputed by R. Feinstein, who writes (Iggerot
Mosheh, Orach Chaim I, no. 41, paragraph that begins u-mah she-ratzah) that a partition between ladies and
gentlemen is always obligatory in the synagogue sanctuary even when no tefillah be-tzibbur occurs, simply by
virtue of the reverence required for the synagogue sanctuary itself. Insofar as the synagogue sanctuary is concerned
as envisaged by R. Feinstein, the sole difference between tefillah be-tzibbur and other times is that during tefillah
be-tzibbur the partition is required by virtue of a mitzvah de-Oraita, whereas at other times the partition is required
by virtue of a mitzvah de-rabbanan. [For a possible explanation of this dichotomy, see supra, note 6.] R. Feinstein
emphasizes that the obligation for a partition at all times in the synagogue sanctuary remains true even if the
synagogue was built with a tenai (-a stipulation to permit secular activities).
It seems to this student that the dispute between R. Emden vs. R. Feinstein (regarding whether a partition is
required in the synagogue sanctuary outside of times of tefillah be-tzibbur) hinges upon the Mishnah Berurah in his
Biur Halakhah to Orach Chaim 151:11 (s.v. aval be-vatei knessiyot she-be-Eretz Yisrael), regarding which
activities are permitted when a synagogue is built with a tenai. There (in the final five lines of his analysis), Biur
Halakhah distinguishes between kalut rosh gadol (major levity) which is forbidden, and ketzat kalut rosh (minor
levity) which is permitted. Kalut rosh gadol includes business calculations, laughter, joking and the like. Ketzat
kalut rosh includes eating, drinking and the like. Now, although the mixture of ladies and gentlemen is described
by the gemara in Sukkah 51b as kalut rosh, Biur Halakhah does not explain into which category (minor or major)
of kalut rosh such mixture would fall. This is apparently the dispute between R. Emden and R. Feinstein: R. Emden
classifies mixed seating as minor levity, and therefore permits it in the synagogue that was built with a tenai;
whereas R. Feinstein classifies mixed seating as major levity, and therefore forbids it in the synagogue even if the
synagogue was built with a tenai.
In summary, it emerges that R. Emden and R. Feinstein agree in one dimension and disagree in another.
They both agree that mixed seating is permitted at a wedding meal which occurs outside of a synagogue sanctuary.
By contradistinction, they disagree whether mixed seating is permitted in the synagogue sanctuary outside of times
of tefillah be-tzibbur (and outside of the unusual case of a wedding meal that occurs in the synagogue sanctuary).
See also the ostensibly contradictory responsa of R. Yechiel Yaakov Weinberg on this topic, published in
Shut Seridei Esh II, no. 8 and no. 12. In the first responsum, discussing why ladies may sing zemirot in a dining
hall along with gentlemen during a Sabbath meal, R. Weinberg (not to be confused with R. Weinfeld, even if he
espouses a similar ruling) emphasizes that ladies and gentlemen must be separate at all venues, not only the
synagogue. R. Weinberg claims that the sole difference between the synagogue and other venues is that the
synagogue requires segregation (i.e. an intervening partition) in addition to separation, whereas for all other venues,
separation alone (without need for segregation) suffices. The result of this calculation is that although R. Weinberg
allows ladies to sing zemirot along with gentlemen, he insists that they be separately seated in the dining hall (albeit
without need for a partition). By contradistinction, in the second responsum (final paragraph), R. Weinberg demands
separation between ladies and gentlemen for a musical concert (unrelated to tefillah be-tzibbur) that occurs in the
synagogue. R. Weinberg adds that it would be better for a partition to separate the ladies from the gentlemen during
the synagogue concert [despite the fact that no actual prayer is occurring], but if segregation is not possible then
at least the ladies and gentlemen must sit separately during the synagogue concert. The implication of the second
responsum is that [for events unrelated to tefillah be-tzibbur] the synagogue and only the synagogue demands
separation, but that outside the synagogue, ladies and gentlemen can sit together. Thus, Seridei Esh II, no. 8 would

63

(as he did against R. Feinsteins proof from Pesachim) that R. Emdens expression zekharim unekevot yachdav means only that ladies and gentlemen are on separate sides of the hall, without
an intervening partition. It is this arrangement which R. Emden forbids at a wedding meal which
takes place in a synagogue sanctuary, and which he by implication permits at any normal
wedding meal outside a synagogue sanctuary; whereas truly mixed seating is always forbidden at
every wedding meal by virtue of a Halakhah le-Mosheh mi-Sinai. Yet, this appears to be a forced
reading of R. Emdens term zekharim u-nekevot yachdav.]75
apparently require separate seating at a [secular dining hall] wedding, while Seridei Esh II, no. 12 would apparently
not. To phrase the contradiction more conceptually: Seridei Esh II, no. 8 resembles the position of Lev Avraham
discussed in the main text of this section of the essay (who demands separation at all events, even outside of tefillah
be-tzibbur, and even outside the synagogue), while Seridei Esh II, no. 12 resembles the position of R. Feinstein (in
demanding separation at all events, even outside of tefillah be-tzibbur, that occur in a synagogue, but not necessarily
demanding separation at events that occur outside the synagogue). The sole difference between Seridei Esh II, no.
12 and R. Feinstein is that R. Feinstein insists on segregation as well as separation for all events that occur in a
synagogue [even if unrelated to tefillah be-tzibbur], whereas Seridei Esh II, no. 12 while preferring segregation
is willing to be lenient and rely on separation alone [for synagogue events unrelated to tefillah be-tzibbur].
75

An alternate approach to R. Feinsteins Paschal offering proof is offered by R. Chaim Avraham Zakutinsky,
Mekarev be-Yamin (Flushing, NY, 5771), pp. 78-79. R. Zakutinsky observes that R. Feinsteins permission for
mixed seating at a wedding (Iggerot Mosheh, Orach Chaim I, no. 41) actually contradicts R. Feinsteins own
previously announced position in Orach Chaim I, no. 39, where R. Feinstein (p. 100, third line of righthand column)
writes after having vacillated on the matter that separation between ladies and gentlemen should be orchestrated
at all public venues of gathering, even outside the synagogue and even unrelated to tefillah be-tzibbur. In order to
reconcile these contradictory responsa, R. Zakutinsky suggests that R. Feinstein distinguishes between public
gatherings where attendance is restricted to specifically invited individuals, and public gatherings where attendance
is not restricted. It is the former fact pattern which is described by Orach Chaim I, no. 41, since only those who
actually register for the Paschal offering (and hence are formally invited) may participate in its consumption.
Likewise, since (at least in the social milieu R. Feinstein addresses) people only attend a wedding when they are
formally invited, it is in this situation that mixed seating is permissible. By contradistinction, a truly public gathering
where attendance is unrestricted resembles the eulogy described by Zechariah 12:12 (the verse expounded by the
gemara in Sukkah 52a), and it is there claims R. Zakutinsky that R. Feinstein always demands separation
between ladies and gentlemen. Indeed, observes R. Zakutinsky, R. Feinsteins posthumously published responsa of
Orach Chaim V, no. 12, sec. 1 and Yoreh Deah IV, no. 24, sec. 3 both explicitly posit such a distinction.
[Cf. Iggerot Mosheh, Even ha-Ezer II, no. 14, published by R. Feinstein during his own lifetime, where R.
Feinstein permits ladies and gentlemen to travel together in mixed seating on buses and the subway. Since access to
public transit (at least in the social milieu R. Feinstein addresses) is restricted to those who pay an entrance fee,
perhaps one might argue that the public transit is considered a public gathering with restricted access, analogous to
le-havdil the Paschal offering or a wedding. If so, this responsum can be harmonized with R. Zakutinskys thesis.
On the other hand, a passenger does not need to be specifically invited to attend public transit (so long as the
passenger is willing to pay the small token fee), such that perhaps this responsum of R. Feinstein contradicts R.
Zakutinskys thesis.
Cf., also, Iggerot Mosheh, Yoreh Deah II, no. 109, also published by R. Feinstein during his own lifetime,
where R. Feinstein addresses a meeting of a society where gentlemen and ladies arrive to discuss, debate and
decide in secular matters of the society. Presumably, the reference is to a corporate executive meeting hall with
mixed seating. R. Feinstein avers that it is not known why in this country we are lenient with simplicity to allow
such mixed seating to occur, but since the leniency is already established, the practice can continue even when
words of Torah are discussed at the meeting, and only when the assembled group seeks to pray minchah or maariv
must the ladies and gentlemen separate. [R. Feinstein directs the ladies to leave to another room, but obviously
although not mentioned by R. Feinstein equally acceptable would be construct a synagogue partition between the
ladies and gentlemen within the same corporate executive meeting hall.] Although R. Feinstein does not explain
whether access to the meeting is restricted, one assumes that one is dealing with selectly invited executives of a
corporation, such that this particular responsum (which allows at least post facto mixed seating during secular
assemblies unrelated to tefillah be-tzibbur) can be harmonized with R. Zakutinskys thesis.]
However, with all due reverence manifest before R. Zakutinsky, R. Zakutinsky neglects to cite another
posthumously published responsum of R. Feinstein on the same topic, viz. Orach Chaim V, no. 11. There, R.

64

What is even more difficult for R. Weinfeld, and which R. Weinfeld also never addresses,
is the gemara in Taanit 31a which records how in days of yore ladies and gentlemen would
congregate in the vineyards on the fifteenth of Av in order to fraternize for the purpose of
arranging marriage. That report is certainly incongruous if there is actually a Halakhah leMosheh mi-Sinai that prohibits ladies and gentlemen from ever assembling together anywhere.
Although one might defend R. Weinfeld by offering a parallel answer (to that offered against the
proof from Pesachim), viz., that the ladies and gentlemen would communicate in the vineyards
from a distance with the population of ladies always being careful to remain separate from the
population of gentlemen, it seems to this writer that such a parallel answer is somewhat
maladroit in context.76

Feinstein is asked whether a public lecture (with unrestricted access) aimed at bringing the community close to
Torah and mitzvah observance requires a partition, when the community will refuse to attend the lecture in the event
a partition exists. R. Feinstein replies that indeed his original responsa on the synagogue partition in Orach
Chaim I, nos. 39-44 demand a partition at all public gatherings of ladies and gentlemen where attendance is
unrestricted, even if the gathering is outside a synagogue and even if the gathering is unrelated to tefillah be-tzibbur.
However, continues R. Feinstein, where no viable alternative exists (such as here where the community will refuse
to attend if a partition exists), it is permissible to completely dispense with the partition for the public lecture, so
long as no prayer will occur. It seems to this student that this responsum of R. Feinstein is inconsistent with R.
Zakutinskys thesis, for if separation between ladies and gentlemen were absolutely required at all public gatherings
(with unrestricted access), why should the absence of a viable alternative allow the public to transgress? According
to R. Zakutinskys line of reasoning, the lecture should simply be cancelled!
Furthermore, as R. Zakutinsky himself notes, R. Feinsteins distinction (in his posthumously published
responsa) between public gatherings where attendance is restricted to specific invitees and public gatherings where
attendance is unrestricted does not appear to be supported by any halakhic precedent. Logically speaking, whatever
is permitted/forbidden for one type of gathering should presumably be equally permitted/forbidden for the other type
of gathering. [Thus, it would seem to this student that a case could be advanced that Leviticus 19:30 applies only to
tefillah be-tzibbur, such that no separation is needed between ladies and gentlemen at secular meetings unrelated to
tefillah be-tzibbur. The problem with this argument, of course, is that it would require expunging the stringent
sentence from Orach Chaim I, no. 39 (p. 100, third line of righthand column).]
In summary, then, although R. Feinstein published during his lifetime many responsa devoted to the
synagogue partition, only three of these (Orach Chaim I, nos. 39 and 41; and Yoreh Deah II, no. 109) as well as
an additional responsum unrelated to the synagogue (Even ha-Ezer II, no. 14) address whether there must be
separation between ladies and gentlemen at events unrelated to tefillah be-tzibbur. The first responsum is stringent
whereas the latter three responsa are all lenient. R. Feinstein apparently attempts to resolve this contradiction in
three posthumously published responsa, but the resolution he offers is itself inherently contradictory, and
moreover all three of the particular posthumously published responsa (as the editors of that volume of Iggerot
Mosheh note) were not even written personally by R. Feinstein but were rather orally dictated by him in Yiddish,
since R. Feinstein was incapacitated at the time he was asked those three questions. [The dictation was then
translated by another scholar into Hebrew, either orally reciting or visually presenting it before R. Feinstein. R.
Feinstein subsequently signed the Hebrew composition.] Accordingly, it seems to this student that it is very difficult
to epistemologically decipher R. Feinsteins actual position. (See supra, note 21).
76

Admittedly, R. Solomon Luria in his Yam Shel Shelomoh (Gittin ch. 1, no. 18) does comment that the gentlemen
stood a distance away from the vineyards, pursuant to the mitzvah for ladies and gentlemen to dance separately,
which he in turn claims is derived from Jeremiah 31:12 and Psalms 148:12. [The validity of this derivation will
be discussed further in the present footnote.] Nevertheless, even granting the cogency of Yam Shel Shelomohs
caveat, this student presumes that after the dancing was complete the gentlemen would actually approach the
vineyards to speak with the ladies to discuss the logistics of arranging marriage. It is difficult to believe that such
logisitical negotiations would have been possible if the gentlemen always remained separated at a distance, even
after the dancing was complete. Indeed, the fact that Yam Shel Shelomoh speaks of a mitzvah for ladies and
gentlemen to dance separately implies that it is only the dancing which demands separation, whereas ordinary
congregating together (where people are not dancing, and obviously outside of the Temple or synagogue [as
vineyards indeed are], and outside of any tefillah be-tzibbur context) is permissible.

65

Further difficult for R. Weinfelds thesis is the Midrash in Tanna de-Vei Eliyahu that is
cited by the Yalkut Shimoni to Deuteronomy 23:15, which prescribes separation between ladies
and gentlemen during prayer.77 According to R. Weinfeld, separation should always be
commanded by virtue of a Halakhah le-Mosheh mi-Sinai, and not only during prayer!
[Evidently, R. Weinfeld would have to respond that the Talmud Bavli (in Sukkah 52a) disagrees
with the Midrash, and that the Talmud Bavli prevails.]
Finally, if it is truly the case as R. Weinfeld claims that a Halakhah le-Mosheh miSinai requires separation at all events, then it should be absolutely prohibited for ladies and
gentlemen to even attend the same marketplace venue (unless there are distinct areas for ladies
and gentlemen). Are we to seriously believe that ladies and gentlemen must always shop in
different marketplaces? Although perhaps the answer is indeed affirmative for R. Weinfeld, such
an astonishing conclusion should serve as a reason to pause for reflection.
Nevertheless, despite the above counterpoints to R. Weinfeld, a significant support to R.
Weinfelds position may be potentially imputed to the Vilna Gaon in his Biur ha-Gra to
Shulchan Arukh Orach Chaim 529:4. There, the Shulchan Arukh codifies the words of the
Rambam in Hilkhot Yom Tov 6:21 to the effect that a Beth Din is obligated to dispatch police
officers throughout the Jewish community on the festivals in order to encourage ladies and
gentlemen to conduct themselves with sanctity. R. Joseph Karo, in his Kessef Mishneh
commentary upon the Rambam (written even prior to R. Karos compilation of the Shulchan
Arukh), explains that the source in turn for the Rambams ruling is the gemara in Kiddushin
81a.

The nature of the mitzvah for ladies and gentlemen to dance separately (of which Yam Shel Shelomoh
speaks) is itself a matter of interest, seeing as there is no obvious precedent in Talmud or midrash for Yam Shel
Shelomohs interpretation of Jeremiah 31:12 or Psalms 148:12. Yet, Yam Shel Shelomohs ostensibly unfounded
rendition of Jeremiah 31:12 is accepted by Mishnah Berurah in his Biur Halakhah to Orach Chaim 339:3, s.v. lehakel ba-kol; while his ostensibly unfounded rendition of Psalms 148:12 is accepted by Arukh ha-Shulchan to Even
ha-Ezer 65 (3). [And both ostensibly unfounded renditions are accepted by R. Joshua Isaiah Neuwirth in his
Shemirat Shabbat ke-Hilkhatah (2nd ed.), ch. 16, footnote 106.] Similarly, R. Moshe Feinstein has written several
responsa (Iggerot Mosheh, Yoreh Deah I, no. 72; Even ha-Ezer I, no. 97; Even ha-Ezer II, no. 13; Orach Chaim II,
no. 30; Orach Chaim IV, no. 35) in which he canonizes the mitzvah of separate dancing for ladies and gentlemen,
but in none of them does he explain the precise source. [And see Shut Bnei Vanim I, no. 37, where R. Yehudah
Herzl Henkin indeed questions whether any source for R. Feinsteins ruling even exists. I am grateful to R. Moishe
Dovid Lebovits (in his The Mechitza Why, How and When, published in his journal Halachically Speaking,
Vol. 2, 2006) as well as the moderator of < http://www.jewswithquestions.com> for bringing these sources to my
attention.] Further adding to the puzzle is that while R. Feinstein demands separate dancing, he does not insist on an
intervening partition, unlike tefillah be-tzibbur, where R. Feinstein requires an intervening partition (as discussed
supra in Sections A, B and C). This student would therefore hypothesize that R. Feinsteins approach to separate
dancing can be appreciated based on the analysis presented supra, note 11. Namely, in addition to the obligation of a
partition during tefillah be-tzibbur on account of Leviticus 19:30, separation (although not an intervening partition)
is required on account of Leviticus 18:3 any time Jews assemble for public prayer. Now, dance is a form of public
prayer , pursuant to the verses "Let them praise His Name with dancing, with drums and harp let them make music
to Him" (Psalms 149:3); and "Praise Him with drum and dance; praise Him with organ and flute" (Psalms 150:4).
On the other hand, there is no actual recitation of kaddish, kedushah or barkhu during the dancing, nor are the
dancers [when dancing in a secular venue] actually present in the Temple or synagogue. Ergo, Leviticus 19:30 is
inapplicable, while Leviticus 18:3 remains germane. Accordingly, separation between ladies and gentlemen is
required during dancing, yet without any obligation for an intervening partition. [Having established on the basis of
Psalms 149:3 and Psalms 150:4 that dancing is a form of public prayer, Yam Shel Shelomohs interpretation of
Jeremiah 31:12 and Psalms 148:12 now becomes cogent and indeed authoritative.]
77

This Midrash has been analyzed supra, note 45.

66

In context, the gemara discusses the mitzvah de-Oraita of avoiding yichud [-solitary
incarceration of a married lady with a gentleman who is neither her husband nor her immediate
relative] which is derived from Deuteronomy 13:7. The Sages aggrandized this mitzvah with a
provision that even a multiple number of such ladies should avoid being solitarily incarcerated
with one gentleman [-and, moreover, even if the ladies are spinsters], whereas it remains
permissible even on a rabbinic level for a multiple number of gentlemen to be solitarily
incarcerated with one lady. Rav Huna observes that this rabbinic mitzvah could impact upon a
group of ladies and a group of gentlemen who assemble in two adjacent chambers, one inner and
one outer, whose architectural arrangement is such that the only access and sortie of the inner
chamber is through the outer chamber. Rav Huna is concerned that if the gentlemen are
congregated in the inner chamber while the ladies are congregated in the outer chamber, then if
for whatever reason a solitary gentleman prematurely leaves in the middle of the assembly, he
will have no choice but to pass through the ladies section, whereupon there will be a situation of
yichud since he will be surrounded exclusively by ladies. On the other hand, says Rav Huna,
there is no problem with ladies being situated in the inner chamber while gentlemen are situated
in the outer chamber, for even if a lady prematurely leaves in the middle of the assembly and
perforce passes through the gentlemens section, yichud will not occur.
The gemara proceeds to cite a beraita which shares a diametrically opposite perspective
to that of Rav Huna. According to the beraita, there is never reason to fear that an individual
situated in the inner chamber will prematurely leave in the middle of an assembly, and thereby
pass through the outer chamber. Even if that were to occur, people in the outer chamber will
immediately notice the arriving guest, because everyones social attention is focused on the
events that are occurring within the inner chamber. Once the people in the outer chamber notice
the arriving guest emerging from the inner chamber, they will all grant him his private space by
distancing themselves from him, thus preventing genuine yichud. But the beraita is concerned
that an individual in the outer chamber may wish to catch a more front row seat to participate
in the social events occurring in the inner chamber, and thus he may surreptitiously venture into
the inner chamber, without anyone in the inner chamber actually noticing (since they are
preoccupied with participation in whatever social event is occurring in the inner chamber). Thus,
the beraita permits gentlemen to congregate in the inner chamber while ladies are congregated in
the outer chamber (for one lady may be permissibly solitarily confined among multiple
gentlemen) but it prohibits gentlemen from congregating in the outer chamber while ladies are
congregated in the inner chamber (for one gentleman may not be solitarily confined among
multiple ladies).
Abaye subsequently comments that in light of the disparate opinions expressed by Rav
Huna and the beraita, one should be stringent to prohibit both arrangements: ladies in the outer
chamber while gentlemen are in the inner chamber, as well as ladies in the inner chamber while
gentlemen are in the outer chamber.
The gemara then reports how Abaye as well as his colleague Rava managed this rabbinic
mitzvah as a matter of halakhah le-maaseh. When they would gather ladies and gentlemen in
two adjacent chambers of the above described kind [for purposes of delivering a public lecture or
celebrating a wedding ceremony (-Rashi)], they would place a sound-producing machine on the
ground between the two chambers. Specifically, Abaye would line the ground with uninterrupted
rows of earthenware jugs, and Rava would line the ground with uninterrupted rows of reeds. This
way, a gentleman who would move from the gentlemens chamber to the ladies chamber would
automatically prompt a jingling noise, which would alert ladies in the other chamber and thus
signal them to grant the gentleman his private space by staying away from him. Thus, the

67

prohibition of yichud was avoided, and ladies and gentlemen were permitted to assemble in the
two adjacent chambers.
Finally, the gemara concludes with the remark of Avin [-or, according to the manuscript
of the Arukh, Abaye] that the most important time of year to be vigilant regarding this rabbinic
mitzvah is during the pilgrimage festival [-when ladies and gentlemen assemble to hear lectures
(-Rashi)].
As such, there are two practical messages that emerge from the gemara in Kiddushin 81a:
(a) It is rabbinically prohibited to stage an assembly of ladies in one chamber and gentlemen in
another chamber, when the two chambers are adjacent and are constructed such that one is the
inner chamber and one is the outer chamber, unless a sound-producing machine is placed on the
ground between the two chambers, due to considerations of yichud.78 (b) During the Yom Tov
season, one should be especially careful about this rabbinic mitzvah.79
78

This rabbinic mitzvah is architecturally distinct from the mitzvah of a synagogue partition, and does not entail the
same requirement of stature. As R. Yehudah Herzl Henkin, Shut Bnei Vanim II, no. 12 (s.v. ve-khol divrei kevodo)
correctly observes, there is no reason to assume that rows of earthenware jugs or reeds constitute even so much as a
geographic barrier, and certainly not a kinaesthetic barrier or visual barrier. The sole requirement is that the jugs or
reeds properly chime when disturbed. In fact, in a very real sense, the rows of jugs or reeds are the opposite of a
partition. A partition is meant to prevent traffic; the rows of jugs or reeds are meant to actually facilitate traffic (with
a musical accompaniment) when an individual seeks to move from one chamber to the other (e.g. a member of the
inner chamber seeks to leave the event early).
79

Incidentally, it would seem evident to this writer that since, according to the Rema in Shulchan Arukh Orach
Chaim 338:1, employment of a vessel whose designated purpose is sound production (e.g. knocking a door knocker)
is prohibited on the Sabbath and festivals, reliance upon Abaye or Ravas sound-producing machine would be
prohibited on Yom Tov, and could only be countenanced on Chol ha-Moed. A series of uninterrupted rows of
earthenware jugs or reeds which are expressly engineered for the purpose of jingling when a gentleman traverses the
frontier between the two chambers is certainly equivalent to a door knocker in that it is expressly designated for
purposes of sound production. Thus, on Yom Tov itself, one could never permissibly assemble populations of ladies
and gentlemen side-by-side in such a manner that one population is situated in an outer chamber and the other in an
inner chamber.
At the same time, one might counterargue that this extrapolation from the door knocker to the jugs/reeds
may actually be subject to a dispute between the Taz and the Magen Avraham in their commentaries to that
provision of Shulkhan Arukh (1 for each of them, respectively). [I am grateful to Jeremy Telio for bringing this
valuable insight to my attention.] The Taz prohibits opening an Ark curtain on the Sabbath when the curtain is
adorned with jingling bells, on the premise that the bells are equivalent to a door knocker in that they are both
designed for the exclusive purpose of sound production. Moreover, in the Taz view, sounding the bells is even more
egregious than employing a doorknocker. [Although the Taz does not elaborate on this latter point, he evidently
regards the sound emitted by jingling bells as being musical in nature. Production of musical sound is forbidden on
the Sabbath even from vessels that are not exclusively designed for sound production, as per the gemara in Eruvin
104a.] The Magen Avraham disagrees, positing that the bells adorning an Ark curtain may be treated more leniently
than a doorknocker (and hence the Ark curtain may be opened) because unlike a doorknocker whose exclusive
purpose is the production of sound the bells also possess a secondary non-acoustical purpose. [The Magen
Avraham does not identify what this secondary purpose is, but one assumes it is hiddur mitzvah through visual
beautification of the Torah scrolls, as per the gemara in Shabbat 133b.] As for the Taz apparent assumption that the
sound emitted by jingling bells is musical in nature, the Magen Avraham counters with several remonstrations:
maybe the sound of jingling bells is not considered musical; or even if it is considered musical, then maybe the
opening of the Ark is considered a mitzvah purpose which justifies the production of musical sound, pursuant to the
gemara in Eruvin 104a; maybe musical sound production is permitted in the contemporary era when most
individuals are uninstructed in the repair of musical instruments [and the Sages only prohibited musical sound
production on the fear that it would lead people to repair broken instruments]; maybe bells may be musically
sounded to honour the Torah scrolls just as it is customarily accepted for Jews to dance before the scrolls on Simchat
Torah [despite that standard prohibition against dancing on Yom Tov presented by the mishnah in Beitzah 36b]; and
maybe the production of sound is completely unintended by the individual who opens the Ark.

68

Accordingly, the Kessef Mishneh is explaining that these two messages are precisely
what the Rambam is codifying in Hilkhot Yom Tov 6:21. And, at first glance, such would appear
to be the parroting effect of Shulchan Arukh Orach Chaim 529:4, considering the fact that the
author of the Shulchan Arukh is none other than the Kessef Mishneh. Thus understood, the
passage in Shulchan Arukh is a rather limited directive focusing on a particular aspect of the laws
of yichud.
However, the Vilna Gaons commentary on Shulchan Arukh sheds an entirely new light
on the subject. In cryptically explaining the source for the Shulchan Arukhs words, the Vilna
Gaon cites not only the gemara in Kiddushin 81a but also in Sukkah 52a. Seemingly, the Vilna
Gaons words transcend decipherment inasmuch as the gemara in Sukkah is addressing a
partition in the Temple (and by extension the synagogue), whereas the Rambam and
Shulchan Arukh in Hilkhot Yom Tov are discussing the need for ladies and gentlemen to conduct
themselves with sanctity in all geographic venues (in the gardens, in the orchards, and on the
banks of rivers, as the Rambam and Shulchan Arukh verbally specify.) What possible
connection, then, could there be between the gemara in Sukkah and the Rambam/Shulchan
Arukh in Hilkhot Yom Tov? Arguably, the Vilna Gaon may have understood the gemara in
Accordingly, one could explain that a fundamental point of contention between the Taz and the Magen
Avraham in the above dispute is how one envisages an instrument which has been set aside by the community for
the purpose of sound production but which also possesses a secondary purpose. The Taz treats it as a door knocker,
whereas the Magen Avraham does not. By the same token, the jugs/reeds are set aside by an entire community for
the purpose of chiming (in order to permit the members of the community to congregate in compliance with the
mitzvah of yichud) but may also possess a secondary purpose. Specifically, the jugs might be simulatenously used
for storage, and the jugs/reeds if they are of an expensive variety might further be simultaneously designated for
aeshthetic purposes by decorating the auditoria where the ladies and gentlemen are assembled. If that is the case,
then while the Taz would prohibit relying on such an arrangement on Yom Tov, the Magen Avraham would surely
permit it.
Nevertheless, on the countervailing side, one might respond that this attempt to reduce the question of the
permissibility of relying upon the jugs/reeds on Yom Tov to a dispute between the Taz and the Magen Avraham does
not easily account for what secondary non-acoustical purpose is legitimately served by the jugs/reeds. Insofar as the
jugs are concerned, perhaps one could contend they are only acceptable for addressing the mitzvah of yichud when
they are empty, and not when they are employed for storage, pursuant to the gemara in Bava Metzia 85b which
posits that empty vessels make the most noise (astira be-lagina kish kish karya). And insofar as employing
jug/reeds for aesthetic purposes is concerned, one might distinguish between them and the bells that decorate the
curtain covering of the Ark. There is indeed a mitzvah to decorate Torah scrolls, as per the gemara in Shabbat 133b,
which presumably inspired the Magen Avraham to regard the aesthetic aspect of the bells as being legally
significant. In contrast, there does not appear to be any particular value in decorating an assembly hall where ladies
and gentlemen gather, and so perhaps the Magen Avraham would trivialize the non-acoustical purpose served by the
jugs/reeds. If that is the case, then even the Magen Avraham might not countenance such an arrangement on Yom
Tov when the frontier between the two chambers is lined with jugs/reeds. [Of course, if the ladies and gentlemen are
gathering for a wedding celebration (which, as mentioned, is one of the examples offered by a Rashi in Kiddushin
81a), interior dcor becomes significant because it serves to fulfill the mitzvah of simchat chatan ve-kallah.
However, this latest point is specious to the discussion at hand, since wedding celebrations are never orchestrated on
Yom Tov.] The matter requires further analysis.
In any event, one might independently claim that from the flow of words of R. Joseph Karo in his Beit
Yosef to Tur Orach Chaim no. 338, it seems as though he does not accept the Remas door knocker stringency. [I am
grateful to Jeremy Telio for bringing this discovery, as well, to my attention.] Indeed, this supposition appears to be
confirmed by R. Ovadiah Yosef, Livyat Chen no. 110; R. Ben-Zion Abba Shaul, Shut Or le-Tziyon II, p. 264; and
R. Yitzchak Yosef, Yalkut Yosef, Hilkhot Shabbat, Orach Chaim no. 338, 12, who all rule that a Sefardic Jew may
permissibly employ a door knocker on the Sabbath and festivals. Accordingly, the argument might apparently be
advanced that the sound-producing machine of Abaye and Rava could be employed by an assembly that is entirely
composed of Sefardic Jews. [And see also Yalkut Yosef, loc. cit., 15-16, where he favours the position of the Magen
Avraham to permit opening an Ark curtain which is adorned by bells.]

69

Sukkah as establishing a Halakhah le-Mosheh mi-Sinai that ladies and gentlemen must be
separated in all venues, precisely as R. Weinfeld explains.80
80

This purported approach of the Vilna Gaon also explains why Abaye and Rava did not simply convene ladies and
gentlemen within the same auditorium, thereby avoiding the prohibition against yichud altogether. If one grants that
there is a Halakhah le-Mosheh mi-Sinai that demands the separation between ladies and gentlemen at all times, then
Abaye and Rava enjoyed no option but to assemble the ladies and gentleman in parallel chambers. On those
occasions where the parallel chambers happened to be structured with an inner-outer dichotomy, this would in turn
obligate Abaye and Rava to line the frontier between the chambers with uninterrupted rows of earthenware jugs or
reeds, on account of the principles of yichud.
However, this is not the sole way to explain the conduct of Abaye and Rava. One could argue that it may
very well have been entirely permissible for them both as a matter of Torah law as well as rabbinic law to
convene ladies and gentlemen in a mixed manner within the same auditorium (for purposes unrelated to tefillah betzibbur), but out of a sense of elective piety, they preferred to grant ladies and gentlemen their own private
campuses. The act of piety was itself optional (midat chassidut), but when it resulted in the ladies and gentlemen
being situated in parallel inner-outer chambers, a rabbinic obligation was automatically triggered which demanded
that the frontier be lined with uninterrupted rows of earthenware jugs or reeds. Presumably, this would represent the
simple manner in which to explain the words of the gemara in Kiddushin 81a, if not for the purported chiddush of
the Vilna Gaon.
Indeed, perhaps one might alternately interpret the cryptic words of the Vilna Gaon to actually follow the
simple manner in which to explain the gemara in Kiddushin 81a. I.e., perhaps really, there is no Halakhah leMosheh mi-Sinai demanding separation between ladies and gentlemen at all times. Separation is only required in the
Temple (and by extension the synagogue) by virtue of the gemara in Sukkah 51b-52a (on account of Leviticus
19:30, as discussed and debated in Section A above). But the Vilna Gaon is making the point that Yom Tov is the
time when most people (ladies as well as gentlemen) attend synagogue, and so Yom Tov is the time to be most
vigilant about the mitzvah of the synagogue partition, in addition to being the time (as per the gemara in Kiddushin
81a) when one should be most vigilant about the mitzvah of yichud in the gardens, in the orchards and on the river
banks. [Cf. the Rema to Shulchan Arukh Orach Chaim 88:1 who posits that most ladies attend synagogue on the
High Holidays. Since, as per the analysis of R. Betzalel Zolty, Shut Mishnat Yaavetz, Orach Chaim no. 50, Rosh
Hashanah and Yom Kippur are also considered festivals wherein the mitzvah of simchah applies (albeit in a manner
more limited than during the three pilgrimage festivals), it is indeed relevant for Shulchan Arukh Orach Chaim
529:4 (in discussing the mitzvah of simchah on Yom Tov) to refer to the mitzvah of a synagogue partition.
Admittedly, this approach appears somewhat forced since the Shulchan Arukh (copying the Rambam) refers to
regalim pilgrimage festivals, whereas there is no obligation of pilgrimage during the High Holiday season. Still,
the point to appreciate here is that just as most ladies attend synagogue on the High Holidays, so too do many ladies
(admittedly to a somewhat lesser extent) attend synagogue on the pilgrimage festivals. [And see, also, the mishnah
in Shevuot 2a, where the term seirei ha-regalim refers to the set of sin offerings brought in the Temple on Rosh
Hashanah as well as the three pilgrimage festivals. Accordingly, regalim in Shulchan Arukh Orach Chaim 529:4
might be hypothesized to similarly include Rosh Hashanah.]
{Cf. R. Yom Tov Halevi Schwarz, Maaneh la-Iggerot no. 18, sec. 8, who endeavours to reconcile the
Vilna Gaon with the simple manner in which to explain Kiddushin 81a, by asserting that Vilna Gaon means that
there is only a prohibition for ladies and gentlemen to gather for the purpose of simchah. That approach, however,
seems difficult to this student (with all due reverence manifest before R. Schwarz) because Sukkah 52a speaks of an
a fortiori argument from the case of a eulogy to the case of simchah. Thus, whatever Sukkah 52a is teaching is
presumably not limited to cases of simchah. Instead, this student believes that R. Schwarz efforts to reconcile the
Vilna Gaon with the simple manner in which to explain Kiddushin 81a (if indeed such a reconciliation is possible)
should be redirected along the lines of the previous paragraph in this footnote.}
Tangentially, it must be noted that it is impossible for a wedding ceremony (one of the two cases described
by Rashi to Kiddushin 81a) to feature complete separation between ladies and gentlemen, since by definition the
bride and groom must both be present together in the same chuppah for the chuppah to be effective. And every
chuppah demands the presence of at least ten gentlemen for the recitation of birkat chatanim, as per the gemara in
Ketubot 7a-b. Ergo, only if one subscribes to the position (of the two debating sides) in Section B that demographic
separation between ladies and gentlemen need not be absolute can one even entertain the possibility that separation
between ladies and gentlemen be required at a chuppah. On the other hand, if one explains that Abaye and Rava
when separating ladies and gentlemen separately at a chuppah were simply opting for elective piety, the problem
is easily resolved, since elective piety can (and obviously must) be waived to allow a lady to enter her own chuppah.

70

Arguably, one might even claim that such an understanding be further imputed to the
Pardess ha-Gadol (-attributed to the disciples of Rashi). In no. 149, Pardess ha-Gadol declares
on the basis of Zechariah ch. 12 that ladies and gentlemen must be separated whether at a meal,
whether at a dance, whether in any matter. Although Pardess ha-Gadol does not explicitly
invoke the gemara in Sukkah 52a to this effect, its language so closely parallels that of the
gemara that one may possibly conjecture that Pardess ha-Gadol is interpreting the gemara to be
presenting a Halakhah le-Mosheh mi-Sinai which obligates separation at all gatherings.
In any event, even if one upholds the plausibility of R. Weinfelds position that a
Halakhah le-Mosheh mi-Sinai really exists requiring separation at all events and therefore that a
synagogue partition represents a Halakhah le-Mosheh mi-Sinai (as distinct from a fulfillment of
Leviticus 19:30), it still emerges that the novel sfek sfeka le-kula described in this section can be
torpedoed. This is because, as catalogued by R. Feivel Cohen in his Badei ha-Shulchan to Yoreh
Deah no. 110, Klalei Sfek Sfeka ha-Mechudashim Shel Torat ha-Shelamim, no. 15, there is
actually a dispute among the poskim whether doubts regarding a Halakhah le-Mosheh mi-Sinai
are adjudicated to the side of leniency. Although, as previously mentioned, the Pri Megadim
holds this to be so, others hold that only regarding orlah in the Diaspora are doubts to be
adjudicated to the side of leniency. Any other Halakhah le-Mosheh mi-Sinai must have its doubts
adjudicated to the side of stringency. R. Cohen himself decides (318) in favour of the latter,
stringent approach. Even if one were to ignore R. Cohens stringent decision, there is already
sufficient evidence to construct a sfek sfeka le-chumra:
(i)

(ii)

Safek le-chumra #1: Perhaps the synagogue partition represents a mitzvah deOraita by virtue of Leviticus 19:30 (as per the approach of R. Feinstein and
company), such that any doubts regarding the specifications of the partition must
be adjudicated to the side of stringency.
Safek le-chumra #2: Even if the synagogue partition represents a Halakhah leMosheh mi-Sinai (as distinct from a fulfillment of Leviticus 19:30) as per the
approach of R. Weinfeld, perhaps the halakhah is that all doubts regarding any
Halakhah le-Mosheh mi-Sinai [other than orlah in the Diaspora] must be
adjudicated to the side of strigency.]

Accordingly, the conclusions of Section E above remain true.

G. LONGITUDINAL SCOPE OF A KINAESTHETIC BARRIER

71

As concluded in the above Section E, a synagogue cannot rely exclusively on a

geographic barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic
barrier, in order to benefit from a sfek sfeka le-kula.
The precise longitudinal scope of a kinaesthetic barrier is itself a matter of interest and
deserves clarification. As described above in Section C, R. Feinstein prohibits gaps in a
kinaesthetic barrier that exceed three inches, thus denying the possibility of invoking lavud.
Accordingly, it seems clear to this writer that a kinaesthetic barrier must not only be a solid
eighteen handbreadths high (which might even be reduced to five feet or perhaps even fifty-eight
inches, as discussed in Section C), but it must evidently also solidly span the entire sanctuary
from wall to wall, without a horizontal break of greater than three inches. One cannot rely on a
partition spanning the majority of the length of a sanctuary; the partitions longitudinal scope
must be absolute.
A typical fact pattern where inquiries may arise in this regard is a synagogue hall where
the worshippers are all assembled at the front, complemented by an exemplary eighteenhandbreadth high partition. However, the partition does not extend all the way to the very back
of the hall, where there is indeed no worshipper located. One might think, prima facie, that the
partition need not extend that far back, since no one is praying there. In fact, however, the very
definition of a kinaesthetic barrier demands that the longitudinal scope be absolute, and so the
partition is disqualified until it extends completely from one end of the sanctuary to the other,
literally from wall to wall.
This point emerges from the analysis of the gemara in Sukkah 51b orchestrated by
Iggerot Mosheh, Orach Chaim I, no. 39. There, R. Feinstein notes that, originally, before the
Sages built the gallery for the Rejoicing of the Water Drawing, the ladies and gentlemen in the
Temple were already separated by a formidable wall, viz. the wall that separates the Temple
complex from the Temple Mount, and yet the Sages still insisted on overriding the architecture
of the Sanctuary by constructing a balcony in order to achieve reverence. Why was the original
wall insufficient? Answers R. Feinstein: there were gates in the wall, and those gates were
incompatible with reverence, since only a kinaesthetic barrier achieves reverence. Yet, upon
contemplating R. Feinsteins observation, one might remonstrate: But even so, why did the Sages
enjoy the authority to override the architecture of the Sanctuary? After all, as the gemara itself
emphasizes, gratuitous renovations to the Temple are prohibited by virtue of I Chronicles 28:19.
Accordingly, couldnt the Sages have merely positioned sentries at all the gates (i.e. on both the
gentlemens side and the ladies side) to distance people from the gates? Was it truly necessary
to build a whole new area for the ladies? The answer must be that R. Feinstein understands a
kinaesthetic barrier to be the kind of barrier across which it is not only pragmatically impossible,
but also even theoretically impossible, to socialize. And thus sentries would not have helped,
because in the theoretical case that the sentries disappear and people choose to congregate
opposite the gates, reverence of the Sanctuary will not be achieved. [Indeed, the fact that sentries
cannot effectively stop people from socializing would presumably emerge from the principle
articulated by the gemara in Ketubot 13b that ein apotropos la-arayot, viz. there is no human
guarantor to hinder conduct that is antithetical to reverence for the Sanctuary. Rather, it is
precisely a structural renovation which can effectively create an atmosphere of reverence within
the Sanctuary.] Mutatis mutandis, in the theoretical case that people were to walk to the back of
the synagogue hall, where a partition is missing, reverence of the sanctuary would not be
achieved. And so even when people are not congregated at the back of the synagogue hall, the
partition is disqualified as a kinaesthetic barrier.

72

This point is further confirmed by a subsequent responsum in Iggerot Mosheh, Orach

Chaim IV, no. 30. There, R. Feinstein is asked by his disciple R. Efraim Greenblatt regarding a
synagogue which possesses a fifty-four inch high partition. Such a partition obviously does not
meet R. Feinsteins standards. However, R. Greenblatt adds that there is a buffer zone of two and
a half cubits of empty space between the gentlemen and the wall, as well as a buffer zone of two
and half cubits of empty space between the ladies and the wall. In this manner, it is pragmatically
impossible for ladies and gentlemen to socialize. May communal prayer be orchestrated under
such circumstances? Answers R. Feinstein: No, the buffer zone is inconsequential. Even if it is
pragmatically impossible for ladies and gentlemen to socialize, the partition must still be of the
requisite height to serve as a kinaesthetic barrier, such that it is even theoretically impossible for
ladies and gentlemen to socialize in the sanctuary. R. Feinstein reiterates this idea in the
penultimate paragraph of his very next responsum, viz., Orach Chaim IV, no. 31, where he
writes that it commendable to request that ladies and gentlemen each be seated at some distance
from the partition, but that this will not alter the height requirement of the partition, in order for it
to effectively serve as a kinaesthetic barrier.81
Mutatis mutandis, even if there is a wall between the ladies and gentlemen such that it is
pragmatically impossible for ladies and gentlemen to socialize, but there is a space at the back of
the synagogue such that, in theory, ladies and gentlemen could socialize if they were to walk to
the back, the partition is not a kinaesthetic barrier. And thus it appears safe to assume that a
kinaesthetic barrier must extend from wall to wall, with no gap exceeding three inches.
H. A RAISED SECTION WITHIN THE SANCTUARY
As concluded in the above Section E, a synagogue cannot rely exclusively on a
geographic barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic
barrier, in order to benefit from a sfek sfeka le-kula. Moreover, a congregation that follows the
Shakh and accordingly refuses to synthesize a novel sfek sfeka le-kula would be required to
possess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribes
to the Chavot Daats interpretation of the Shakh].
Sometimes, a synagogue may feature a raised section, wherein there is no actual balcony,
but one of the two sections (on either side of the partition) is slightly elevated, causing the
partition to measure a certain height on one side and a different height on the other side. This
generates the challenge of how to define a kinaesthetic barrier under such circumstances. [For a
visual barrier, the management of such a situation is obvious.] R. Moshe Feinstein focuses upon
this question in four of his Iggerot Mosheh responsa: Orach Chaim I, no. 41; Orach Chaim III,
no. 23, Orach Chaim III, no. 24, and Orach Chaim IV, no. 31.82
In Orach Chaim I, no. 41, R. Feinstein reiterates (from his original responsum in Orach
Chaim I, no. 39) his refusal to rely on a ten-handbreath high partition. R. Feinstein insists that the
synagogue must be a kinaesthetic barrier, meaning it must measure at least eighteen
81

R. Hershel Schachter observes (in the oral lecture referenced supra, note 42) that the initial supposition of R.
Feinsteins interlocutors in postulating that a five cubit horizontal buffer zone might suffice originates from the
midrash cited supra, note 45. As explained there in note 44, a horizontal buffer zone is needed and will indeed be
effective for tefillah be-tzibbur that occurs outdoors, but not indoors. Indoors, an actual partition is required hence
R. Feinsteins refusal to rely on a horizontal buffer zone in a normal synagogue. [As further explained in note 44, the
five cubits to which the midrash refers actually means four cubits in practice.]
82

I am grateful to Dr. Ronald Gehr for bringing these valuable sources to my attention.

73

handbreadths in height (as elaborated in Section C above). R. Feinstein now posits the novel
ruling that if the ladies section consists of a raised platform of eighteen handbreadths in height,
it will need to be enacapsulated by an additional ten-handbreadth high wall from the floor of the
ladys section, thereby creating in effect a twenty-eight handbreadth high wall from the
perspective of the gentlemens section (eighteen plus ten equals twenty-eight). The reason for
this, argues R. Feinstein, is not because of Leviticus 19:30 per se [-for, after all, there is already
an eighteen-handbreadth high natural wall between the ladies section and the gentlemens
section], but because of the obligation of a maakeh (parapet surrounding a roof). Essentially, R.
Feinstein is presenting two chiddushim in this responsum:
(a) It is sufficient for purposes of Leviticus 19:30 that the synagogue partition exceed the
shoulder height of the gentlemen, even though it does not exceed the shoulder height
of the ladies.83
(b) R. Feinstein apparently agrees with Chazon Ishs analysis regarding the obligation of
a synagogue to possess a maakeh. To be sure, the gemara in Chullin 136a, codified
by Shulchan Arukh Choshen Mishpat 427:3, establishes that a synagogue is actually
exempt from a maakeh . However, Chazon Ish demonstrates that it is surely the case
that the Torah seeks to protect human life and safety in the synagogue no less so than
in other venues. The exemption of a synagogue roof from the duty of maakeh arises
simply based on the consideration that the roof of a synagogue is unlikely to be a
source of danger to anyone, and thus there is no functional need to demand a
maakeh there. One may infer from Chazon Ishs analysis that should there be an
elevated structure within a synagogue that it is indeed commonly frequented, a
maakeh would become compulsory. A ladies section in the synagogue is certainly
popularly frequented, and therefore requires a maakeh .84
The second of these two chiddushim is dramatically emphasized in R. Feinstein
subsequent responsum in Orach Chaim IV, no. 31. There, R. Feinstein describes a congregation
where the partition is seventy inches high but where the ladies' area is elevated forty inches, such
that the partition is seventy inches high apropos the gentlemen and thirty inches high apropos the
ladies. R. Feinstein rules that "for sure one should require (vadai yesh le-hatzrikh) that the
measure of the partition be sixty inches on the side of the ladies. And I have heard that there are
synagogues which elevate the ladies' section, but it is not correct (lo nakhon) to do so, and I am
not judging the Rabbis of there to the side of liability - perhaps they could not accomplish more
and they were lenient for themselves because of the great trial of earning a livelihood [insofar as
they would forfeit their salaries if they resigned], and perhaps they are acting a little bit for the
sake of Heaven [because the presence of the rabbi ensures that the congregation is observant in
other matters of Halakhah] I don't want to write about something concerning which I have not
been asked. But in your synagogue, you want to act as is proper (kara'ui), and there is no trial [of
livelihood] and all the more so there is no consideration for the sake of Heaven [since the
congregation is happy to observe all the minutiae of Halakhah, such that you should make sure
that the partition be higher on the ladies' side]."
83

Indeed, this dovetails perfectly with the observation regarding R. Feinsteins position rendered supra, note 34.

84

Indeed, consistent with both Chazon Ish and R. Feinstein, both R. Joel Teitelbaum (op. cit., sec. 4) and R. Chaim
Schachnowitz (op. cit.) assume that the ladies gallery in the Temple described by Sukkah 51b-52a was required to
be surrounded by a maakeh.

74

This latest responsum is prima facie surprising because seventy inches is assuredly taller
than the height of the shoulders of gentlemen. After all, in Iggerot Mosheh, Orach Chaim I, no.
39, R. Feinstein calculates a gentlemen's shoulder height to be eighteen handbreadths high, and
in Orach Chaim I, no. 136, he defines a handbreadth as 3.54 inches. This means that eighteen
handbreadths = (18)*(3.54) = 63.72 inches. Why, then, is R. Feinstein so concerned about the
partition on the ladies' side being only thirty inches high? Evidently, one must answer as per
chiddush (b) already enumerated that R. Feinstein holds (consistent with the Chazon Ish) that
an elevated section within a synagogue requires a maakeh of ten handbreadths in height. Thirty
inches is less than ten handbreadths in height, seeing as 30/3.54 = 8.47. Accordingly, R.
Feinstein is championing the physical safety and wellbeing of ladies within the synagogue.
In Orach Chaim III, no. 24, R. Feinstein addresses the fact pattern of a synagogue that
possesses a partition with the stringency of all eighteen handbreadths from the gentlemens
perspective. However, the ladies section is elevated such that the partition is only four feet high
from the ladies perspective. R. Feinstein states that the spirit of the Sages is not pleased with
this, but concedes that according to the letter of Halakhah - the partition indeed satisfies
Leviticus 19:30 and tefillah be-tzibbur may proceed. Evidently, the reason that R. Feinstein
admits the partition to be kosher is on account of chiddush (a) enumerated earlier, viz. that if the
partition exceeds the shoulder height of all the gentlemen, then it is kosher even if it does not
exceed the shoulder height of the ladies. R. Feinsteins reference to the stringency of all
eighteen handbreadths implies he is dealing with a situation where indeed the partition
consistenly exceeds the shoulder height of all the gentlemen.
More difficult to understand is Orach Chaim III, no. 23. There, R. Feinstein is confronted
with a synagogue partition that is five feet high from the gentlemens perspective but only four
feet high from the ladies perspective. R. Feinstein opines that "this is not good" (zeh lo tov). The
reason R. Feinstein frowns upon the arrangement is that the partition is neither higher than the
shoulder height of gentlemen (whose shoulders typically exceed five feet), nor is it higher that
the shoulder height of ladies (whose shoulders typically exceed four feet).85 At the same time, R.
Feinstein continues I am not saying a clear prohibition (eini omer issur barur) even though I
am displeased with this (af she-ein daati nochah mi-zeh).I do not prohibit but I am displeased
(eini osser aval ein daati nochah mi-zeh). Evidently, the reason R. Feinstein is unable to
clearly prohibit the arrangement is because it is socially awkward for ladies who are lifted a foot
off the ground level of the gentlemen to communicate with the gentlemen under such
circumstances.
This responsum apparently contains an internal contradiction: On the one hand, R.
Feinstein says eini omer issur barur, which implies he is in doubt whether the partition is kosher.
If there is indeed such a doubt, one would presume that the partition be rejected in practice, since
R. Feinstein has already demonstrated that the synaogogue partition represents a mitzvah deOraita (as discussed and debated above in Section A), and any doubt regarding a mitzvah deOraita must be adjudicated to the side of stringency. On the other hand, R. Feinstein also says
eini osser, which implies that the partition is indeed kosher according to the letter of the law.
In strengthening the consideration to possibly disqualify such a partition, this student
would point to the gemara in Eruvin 58b, which describes how slopes are measured by
geographic surveyors who establish the techum Shabbat. The gemara cites a beraita which
85

As discussed supra, note 34, the normal definition of a kinaesthetic barrier is a partition that universally exceeds
the shoulder height of at least one of the two populations on either side of the barrier, so as to create social
awkwardness, and hence an aura of reverence within the sanctuary.

75

explains that the upper surveyor holds the measuring rope against his feet, whereas the lower
surveyor holds the rope against his feet. Apparently, then, socialization is convenient between
people at different altitudes, so long as neither of them has to raise his hands above his shoulders.
Mutatis mutandis, if ladies and gentlemen are separated by a barrier that is four feet high relative
to the raised ladies and five feet high relative to the gentlemen, socialization between ladies and
gentlemen can be achieved without either of the populations needing to raise an arm. Thus a
kinaesthetic barrier has not been achieved. Even were this proof from Eruvin 58b regarded as
only a safek, it would suffice to disqualify the partition on account of a sfek sfeka le-chumra, as
follows:
(i)

(ii)

Safek le-chumra #1: Perhaps a partition which stands five feet high vis--vis the
gentlemen and four feet high vis--vis the ladies does not constitute a kinaesthetic
barrier, seeing as neither population is incarcerated by a partition that exceeds
shoulder height.
Safek le-chumra #2: Perhaps the halakhah follows the visual barrier camp (which
constitutes a genuine safek as per Sections C and E above), such that even a
genuine kinaesthetic barrier is inadequate.

Therefore, in the fact pattern described by R. Feinstein in Orach Chaim III, no. 23, we
are forced to conclude by virtue of a sfek sfeka le-chumra that the partition is disqualified, since
it is not taller than the shoulder height of either of the two populations on either side of the
partition.
Although it is not clear that this stringent conclusion historically matches that of R.
Feinstein seeing, as indicated, his responsum is phrased ambiguously nevertheless the canons
of decision making within the Oral Torah augur in favour of the strigent conclusion. This is
because R. Feinstein has independently ruled in a separate context (Iggerot Mosheh, Yoreh
Deah III, no. 88) based on the gemara in Bava Batra 130b-131a that even if an outstanding
Torah authority (such as the Chazon Ish [-specific example adjudicated by R. Feinstein]) has
issued a pesak halakhah, but posthumous evidence becomes available to overturn that same
pesak halakhah, one is no longer permitted to rely on the original pesak halakhah. R. Feinsteins
position regarding the acceptability of a kinaesthetic barrier is certainly strong (as indicated in
Sections C and E above) to the effect of combining with the geographic barrier position to
establish a sfek sfeka le-kula; the precedent of the menorah supports R. Feinsteins taller-thanshoulder-height thesis.86 However, when R. Feinsteins own analytical reasoning is bypassed
with a partition that is neither taller than the gentlemens shoulder-height nor taller than the
ladies shoulder-height, there appears to be no intellectually honest manner in which to justify
leniency. Ergo, pursuant to R. Feinsteins own pesak halakhah in Yoreh Deah III, no. 88, the
partition must be disqualified.
I. CLOTH PARTITIONS AS KINAESTHETIC AND VISUAL BARRIERS
As concluded in the above Section E, a synagogue cannot rely exclusively on a
geographic barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic
barrier, in order to benefit from a sfek sfeka le-kula. Moreover, a congregation that follows the
Shakh and accordingly refuses to synthesize a novel sfek sfeka le-kula would be required to
86

See supra, note 42.

76

possess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribes
to the Chavot Daats interpretation of the Shakh].
One point that requires clarification is the status of partitions that are constructed from
cloth or otherwise flexible materials (e.g. canvas). It seems obvious to this writer that these are
unfit for use in the context of a kinaesthetic barrier, for one can easily push ones hand against
the cloth wall, turning the cloth into a virtual glove through which one can communicate with an
individual on the other side.
At the same time, a completely opaque cloth would indeed be suitable as a visual barrier,
because it truly serves the function of rendering the other side invisible. Even so, it further seems
to this writer that an argument might be advanced that the synagogue partition must not oscillate,
simply by virtue of the very teleological definition of a visual barrier. Namely, a partition which
sways is not a proper visual barrier, because there is no opaqueness to the edges of the barrier
when it sways. The only manner of swaying that can be countenanced is a curtain partition that is
securely anchored at all of its border edges on all sides, such that the edges always remain totally
closed, making them non-traversable by any hand and completely opaque. Under such
circumstances, the only swaying that occurs involves the excess curtain material in the middle
of the partition moving back and forth.87
The question of the suitability of cloth partitions as a geographic barrier is subsumed
within the very next section of this article.
J. RAMIFICATIONS OF THE GEOGRAPHIC BARRIER CAMP
As concluded in the above Section E, a synagogue cannot rely exclusively on the
geographic barrier camps position, due to the problem of a safek issur de-Oraita. At the same
time, one must also recognize the possibility that the geographic barrier camp is in fact correct,
and thus take into account the two stringencies that are unique to the geographic barrier camp.
Namely, R. Yehudah Herzl Henkin, in his Shut Bnei Vanim I, no. 1, cogently notes that
acceptance of his ten-handbreadth partition would lead to the following conclusions. Firstly, the
partition would have to possess the structural integrity necessary to comply with the dictum any
partition which cannot withstand a normally anticipated terrestrial wind is not a partition (as per
Sukkah 24b). Secondly, the partition would have to be regarded as a mechitzah ha-materet, and

87

Cf. R. Mordechai Gross, Om Ani Chomah II (Bnei Berak, 5760), no. 21, sec. 1. Whereas his responsum is
cryptically formulated, R. Gross seems to direct that the first 1.5 metres of height of a synagogue partition be solid
partition, whereas above that level the partition can be a curtain. If this student is interpreting the responsum
correctly, then R. Gross apparently advocates that a synagogue possess a partition which is both a kinaesthetic
barrier and a visual barrier. In so prescribing, R. Gross recognizes that a visual barrier may be synthesized from
cloth, but a kinaesthic barrier cannot, thus mirroring the thesis of the main text of this section (J). [1.5 metres equals
approximately five feet, evidently representing the measure for a kinaesthetic barrier.]
[N.B. R. Gross never explains why a synagogue should require a partition that is both a kinaesthetic barrier
and a visual barrier. Perhaps R. Gross is in doubt whether a kinaesthetic barrier or a visual barrier is required, and
therefore in order to be stringent on a safek de-Oraita R. Gross requires both. Although it was explained supra,
Section E, that a sfek sfeka le-kula could be produced with a kinaesthetic barrier alone (since a kinaesthetic barrier
automatically includes a geographic barrier), R. Gross does not relate to this argument, presumably because (in sec.
2 of his responsum) he explicitly rejects the acceptability of a geographic barrier. If so, R. Gross position most
closely approximates that of R. Yechiel Yaakov Weinberg and R. Eliyahu Abergel, who as described supra, note
50 (and accompanying text) have apparently vaccilated between the visual barrier and kinaesthetic barrier
positions.]

77

so could not be assembled on the Sabbath or festivals, owing to the rabbinic interdiction against
assembling a mechitzah ha-materet on those days, as per Shulchan Arukh Orach Chaim 315:1.88
The first caveat affects the suitability of cloth or canvass walls as a synagogue partition,
and, to that effect, there are three positions among the poskim as to how much swaying in the
wind will disqualify a mechitzah ha-materet, as follows:
(i) Even the slightest amount of rustling in the wind will disqualify the partition. This
position is espoused by R. Jacob of Karlin, Kehillat Yaakov mi-Karlin on Sukkah 24b
(and again in his Shut Mishkenot Yaakov, Orach Chaim no. 123); R. Ovadiah Yosef,
Shut Yechaveh Daat III, no. 46 (and again in his Shut Yabia Omer IX, Orach Chaim
no. 59, and yet a third time in his Chazon Ovadiah Sukkot, pp. 1-6); R. Menasheh
Klein, Shut Mishneh Halakhot XI, no. 512; R. Elijah Ragoler, Shut Yad Eliyahu no.
24; and R. Aryeh Pomerantzik, Emek Berakhah pp. 90-91. [According to the books
Halikhot Shelomoh (hilkhot sukkah p. 97) and Shalmei Moed (p. 93), this is also the
position of R. Shlomo Zalman Auerbach (as found in the manuscript of his personal
unpublished novellae upon Sukkah 24b). However, it should be noted that those two
books were not published by R. Auerbach himself, and indeed the latter book quotes R.
Avigdor Halevi Neventzal as actually disagreeing and reporting that R. Auerbach
espoused the view of the Chazon Ish (presented as view number iii below).]
(ii) Slight rustling is acceptable, but anything more will disqualify the partition (even if
the motion is less than three handbreadths). This view is not quantitatively clear in terms
of a precise threshold, but is nevertheless espoused by R. Moshe Sternbuch, Moadim uZemanim I, no. 84 and R. Isaac Liebes, Shut Beit Avi IV, no. 73. It tentatively seems to
this student that, although his words are somewhat cryptically phrased, this is also the
position of R. Joseph Chaim Sonnenfeld in his Shut Salmat Chaim nos. 253-254.89 [On
the other hand, others interpret R. Sonnenfeld differently.90]
(iii) Any motion less than three handbreadths is inconsequential due to the principle of
lavud. This position is espoused by Chazon Ish (Orach Chaim 77:6) as well as by R.
Abraham David Horowitz, Shut Kinyan Torah IV, no. 70. There is strong support for
this position from the language of R. Moshe of Trani in his Kiryat Sefer commentary
upon Rambam, Hilkhot Sukkah 4:5. [The same stance is adopted by R. Moshe Feinstein
in Iggerot Mosheh, Orach Chaim V, no. 40 for all matters other than a sukkah, where he
adopts position (ii) instead.91]

88

There is some question whether a parallel rabbinic interdiction exists against disassembling a mechitzah hamateret on the Sabbath and festivals. See R. Simchah Rabinowitz in his Piskei Teshuvot to Mishnah Berurah, Orach
Chaim no. 315, sec. 3.
89

Reference is to the Bnei Brak 5742 edition of Salmat Chaim. In the newer Jerusalem 5767 edition published by R.
Shlomo Werner, the same responsa are published as nos. 351-352.
90

See Appendix D.

91

Incidentally, it should be noted that this responsum was not published by R. Feinstein himself. The volume known
as Iggerot Mosheh, Orach Chaim V & Yoreh Deah IV (which contains this and many other original responsa) was
actually published by R. Feinsteins grandchildren. See supra, note 21.

78

Now, one may inquire what will be the halakhah when a synagogue employs cloth
partitions that would sway in the wind if a gust of wind would theoretically blow through the
sanctuary, but when in fact no wind actually ever blows through the sanctuary, thanks to the
walls of the synagogue that serve as artificial wind breakers. Mishnah Berurah to Orach Chaim
630, 48 (together with his Shaar ha-Tziyun there, 46) observes that this question (i.e. the
validity of a flimsy partition constructed indoors) is subject to controversy [with Mishnah
Berurah himself ruling in accordance with the stringent opinion, and Arukh ha-Shulchan also
appearing to rule strigently.92] R. Yosef Cohen in his Harerei Kodesh commentary upon his
grandfather R. Zvi Pesach Franks Mikraei Kodesh, Sukkot I, no. 2, note no. 3, posits that the
two disputes are actually interlinked. Namely, according to position (i), an artificially
constructed wind-buffering barricade which surrounds a flimsy mechitzah will not help because
the mechitzah must be intrinsically strong in principle. According to position (iii), by
contradistinction, an artificially constructed wind-buffering barricade which surrounds the
mechitzah will indeed make the flimsy mechitzah kosher because the mechitzah need only stay
(relatively) still in actuality. [The Harerei Kodesh does not address position (ii).] As such,
Harerei Kodesh analysis presumably results in a safek as to whether wind-buffering walls are
effective [since one must be cognizant of the fact that perhaps the halakhah follows position (i)
rather than (iii), besides the fact that Mishnah Berurah explicitly rules stringently and Arukh haShulchan appears to concur]. Ergo, because a mechitzah in a synagogue constitutes a safek
mitzvah de-Oraita (as per the analysis presented in Section A above), one must presumably be
stringent due to considerations of safek de-Oraita le-chumra. 93
92

Arukh ha-Shulchan to Orach Chaim 630 (31) writes even if [the partition] stands in a place where the wind
does not reach there, it [the partition] is disqualified if it would be moved by a wind, for there is no designation of
partition upon this which the normally anticipated wind can move it Presumably, Arukh ha-Shulchans remarks
include the fact pattern of artificial wind-buffering courtyard walls surrounding the partition.
93

Harerei Kodesh analysis is also independently advanced by Yechaveh Da at. However, a technical point of
dispute between Harerei Kodesh and Yechaveh Daat concerns the camp into which R. Jacob Chagiz (Shut
Halakhot Ketanot II, no. 50) should be placed. Harerei Kodesh [in agreement with Shaar ha-Tziyun] understands
that Halakhot Ketanot validates a flimsy mechitzah which is protected by surrounding wind-buffering courtyard
walls. Harerei Kodesh postulates that this means the Halakhot Ketanot is not concerned with the intrinsic structural
integrity of the mechitzah, but rather with the fact that the mechitzah not actually move three handbreadths (like
Chazon Ish). [Indeed, in an entirely separate context, Chazon Ish (Orach Chaim 52:14) writes that Halakhot Ketanot
means to validate the flimsy partition surrounded by courtyard walls, thus in agreement with Shaar haTziyuns
interpretation of Halakhot Ketanot (and likewise embraced by Harerei Kodesh).] By contradistinction, Yechaveh
Daat believes that Halakhot Ketanot only originally entertained a havah amina that wind-buffering courtyard walls
can protect a mechitzah, but later retracted based on the concept enunciated in Sukkah 2a to the effect that take
away the shade of [the lofty mountains of] Ashteroth Karnayim and there will be the shade of the sukkah. Thus,
according to Yechaveh Daat, Halakhot Ketanot disqualifies a flimsy mechitzah which is surrounded by windbuffering courtyard walls, in accordance with position (i). See also p. 91 of R. Pomerantziks Emek Berakhah, which
adjudicates such a flimsy mechitzah to be disqualified [consistent with the prediction of both Harerei Kodesh and
Yechaveh Daat that position (i) negates buffering walls].
In any event, the dispute over buffering walls is further perpetuated by R. Waldenberg, Shut Tzitz Eliezer
XX, no. 11, who points out that Mishnah Berurah to Orach Chaim 315 (10) as well as Orach Chaim 240:6 (Biur
Halakhah, s.v. ad she-yihiyeh lefanav mechitzah), appears to regard the wind-buffering courtyard walls as
meaningless. [Surprisingly, R. Waldenberg fails to note Mishnah Berurahs more explicit disqualification in Orach
Chaim 630 (48).] However, Tzitz Eliezer himself believes that the courtyard walls are effective, relying on Chazon
Ish. [Tzitz Eliezer also claims that Halakhot Ketanot supports his contention (-an interpretation of Halakhot Ketanot
which matches Sha ar ha-Tziyun, Chazon Ish and Harerei Kodesh, but which contradicts Yechaveh Daat), and
further cites Pitchei Teshuvah to Orach Chaim 240 in the name of Olat Shmuel as validating the partition.]
Commenting on this responsum of Tzitz Eliezer, Shut Be-Mareh ha-Bazak VII, no. 9 observes that Tzitz Eliezer
means to refer to Chazon Ish (Orach Chaim 52:14) which validates a flimsy partition that is protected by wind-

79

Thus, in sum total, a synagogue which takes into account the safek le-kula possibility of
the correctness of the geographic barrier camp must be careful that its partition not be capable of
swaying in the wind, even though the walls of the sanctuary operate as artificial wind breakers. If
the partitions would sway three handbreadths in the event that a wind would hypothetically blow
through the synagogue, it should be assumed that all poskim would disqualify the mechitzah. [If
the partitions would sway appreciably in the wind but less than three handbreadths, it should be
assumed that many poskim would disqualify the mechitzah. And if the partitions would sway
slightly in the wind, it should be assumed that some poskim would disqualify the mechitzah.]
Now, it has already been explained in immediately previous section above (I) that a cloth
or canvas partition is disqualified as a kinaethetic barrier, but that a cloth or canvas partition is
suitable as a visual barrier, provided that the edges are well anchored. Hence, the dispute among
the poskim that has been described in this section (J), viz., how much swaying disqualifies a
geographic partition, becomes germane if a congregation chooses to employ a canvas or cloth
barrier as a visual barrier. Such a choice of a synagogue partition would be acceptable based
upon a sfek sfeka le-kula:
(a) Safek le-kula #1: Perhaps a geographic barrier suffices for a synagogue partition, in
which case a cloth or canvas partition is acceptable, so long as it is capable of withstanding an
anticipated terrestrial wind.
(b) Safek le-kula #2: Perhaps a visual barrier suffices for a synagogue partition, in which
case even a swaying partition is acceptable.
Accordingly, a synagogue which relies on a cloth or canvas wall as a visual barrier
(which, as has just been demonstrated, could be countenanced based on a sfek sfeka le-kula),
would have to be careful that the partition not sway in the wind (-certainly not three
handbreadths, and better yet not even less than three handbreadths, and best of all not even the
slightest bit). If the partition would sway three handbreadths in the wind, the mechitzah is
disqualified.
Again, as already mentioned in Section I above, it seems evident to this writer that to
serve as a genuine visual barrier, the cloth or canvass would have to be well anchored at all its
edges.
Regarding the second caveat (viz. the prohibition of assembling a mechitzah ha-materet
on the Sabbath and festivals), note may be taken of the remarks of R. Benjamin Silber in his
Shut Az Nidberu XIII (Jerusalem, 5745), R. Dovid Ribiat in his The 39 Melochos (Feldheim,
1999), R. Mordechai Gross in his Om Ani Chomah II (Bnei Berak, 5760), R. Simchah Bunim
Cohen in his The Shabbos Home II (Mesorah Publications, 2003), and the members of Kollel
Eretz Chemdah their jointly composed Shut Be-Mareeh ha-Bazak VII (Jerusalem, 5771). They

buffering courtyard walls. [See also Shut Az Nidberu XIII, no. 9, where R. Benjamin Silber writes (without citing
any reference) that Chazon Ish validates a flimsy partition that is protected by wind-buffering walls.] Cf., however,
Dinei Chag ha-Sukkot (Jerusalem, undated, available at <http://www.hebrewbooks.org/47141>) by R. Yoel
Schwartz and R. Yosef Shalom Gelber, which claims on p. 32 (contrary to Be-Mareh ha-Bazak) that Chazon Ish
never actually arrives at a final decision on whether to validate a flimsy partition surrounded by courtyard walls.[If
the latter claim is true, this would disprove the certainty of the association professed by both Harerei Kodesh and
Yechaveh Daat. Fascinatingly, a careful examination of Chazon Ish (Orach Chaim 52:14) reveals that it could be
legitimately interpreted as by Be-Mareh ha-Bazak, or alternatively as by Dinei Chag ha-Sukkot.] Ultimately, then,
the question of whether wind-buffering courtyard walls are effective apparently remains a matter of safek.

80

all posit94 that because the mechitzah for the laws of synagogue is not a ten handbreadth structure
but is rather a more formidable structure [i.e. eighteen handbreadths for the kinaesthetic barrier
camp, and taller than the tallest person present for the visual barrier camp], the rabbinic
prohibition against assembling a temporary structure does not apply. The rabbinic prohibition
only applies to structures which have significance when they are ten handbreadths tall (e.g. a
sukkah wall), i.e. a mechitzah ha-materet.95
Evidently, R. Silber, R. Ribiat, R. Gross and R. Cohen only entertain the possibility of a
synagogue that subscribes to either the kinaesthetic barrier or the visual barrier camps. They
decline to consider the option that a synagogue might subscribe to a geographic barrier camp.
[Kollel Eretz Chemdah, by slight contrast, does mention the existence of the geographic barrier
camp, only to reject it.]
This subject is also addressed in an exchange between R. Shlomo Wahrman and R. Meir
Amsel published in Ha-Maor 47:2 (Kislev 5754), pp. 30-31. They raise the candy-throwing
dilemma of ladies who wish to shower the bimah with sweets during an aufruf, but who are
hindered by the synagogue partition from effectively doing so. Although not mentioned
explicitly by the authors, it appears as though they axiomatically assume that the partition in
question is a visual barrier. [Given the rules of physics (and in particular the parabolic trajectory
along which a projectile voyages), it is difficult to envisage how a geographic or even a
kinaeathetic barrier would ever hinder candy-throwing. By contradistinction, a visual barrier can
indeed serve as an impediment, particularly if the visual barrier is constructed to an exaggerated
height.96]
94

In R. Silbers book, it is reponsum no. 9. In R. Ribiats book, it is note no. 178 to the chapter on Boneh. In R.
Gross book, it is responsum no. 21, sec. 2. In R. Cohens book, it is note no. 23 to chapter thirty-one. In Kollel
Eretz Chemdahs book, it is responsum no. 9.

95

Although R. Silber (in effect) concurs with the subsequent authors R. Ribiat, R. Gross, R. Cohen and Kollel Eretz
Chemdah on this point, R. Silber also adds a further claim to justify his thesis that a synagogue partition does not
constitute a mechitzah ha-materet, a claim that is unrecognized by any subsequent author. Namely, R. Silber claims
that one who knows that he can refrain from looking [at ladies] and contemplating [ladies] and it will not bother his
prayer is allowed according to the law to pray in a place where there is no partition, and therefore that the
synagogue partition does not constitute a mechitzah ha-materet. Although not mentioned by R. Silber, support for
his additional claim might be imputed to Rashba (discussed extensively in Section D above). [Arguably, this might
also be the opinion of Meiri, although that is highly questionable, as analyzed in Appendix C of this essay.] Yet, it
must be emphasized that the overwhelming consensus of poskim categorically rejects the position of Rashba, and
demands a partition in the synagogue according to the letter of the law under all circumstances of communal prayer,
derived from the gemara in Sukkah 51b-52a, Moed Katan 18a and Kiddushin 52b; as well as the Yerushalmi
Maaser Sheni 5:3 and Sukkah 5:1; as well as the Tanna de-Vei Eliyahu to Deuteronomy 23:15. Thus, for example,
we find that although R. Yehudah Herzl Henkin and R. Emanuel Feldman debate the degree of separation required
between ladies and gentlemen in contemporary society in light of habituation (Tradition 34:4, Fall 2000, pp. 40-57),
both R. Henkin and R. Feldman explicitly state that they axiomatically agree that the overwhelming consensus of
poskim demands a synagogue partition under all circumstances of communal prayer, with no exception. [Neither R.
Henkin nor R. Feldman even mention R. Silbers radical claim to the contrary.] Moreover, R. Silbers radical claim
contradicts his own previously announced opinion (Shut Az Nidberu XII, no. 48) that one must be strict to insist
(contrary to R. Moshe Feinstein) on a visual barrier. If R. Silber feels the need for a partition is altogether fungible,
why bother to be stricter than R. Feinstein regarding the details of the partition height? Thus, it seems to this student
that it is absolutely forbidden to rely on the radical claim of R. Silber (as to the fungibility of the syanagogue
partition) under any circumstances whatsoever, with all due reverence manifest before the great luminary R. Silber.

96

Quite apart from the problem it creates in the context of candy-throwing, a visual barrier constructed to an
exaggerated height may (at least under some circumstances) violate Shulchan Arukh Orach Chaim 134:2. See supra,
note 36 (final paragraph).

81

R. Amsel reports that candy-throwing ladies resort to one of three solutions: (1) The
ladies stand from a distance (i.e. deep within the ladies sanctuary) when they launch the
projectiles, allowing the candies to successfully clear the formidable hurdle. (2) The ladies
temporarily disassemble the partition, whereupon they easily bombard the bimah with candies.
(3) The ladies leave the partition in place, but exit the ladies sanctuary and enter the hall leading
to the entrance of the gentlemens sanctuary, whereupon they easily bombard the bimah with
candies.
R. Amsel emphasizes that in either case the ladies are tzidkaniyot (righteous), but he
further claims that only the first solution is halakhically acceptable. This is because the second
solution violates the prohibition of disassembling [and then reassembling] a structure on the
Sabbath and festivals, while the third solution violates the prohibition against ladies and
gentlemen congregating in the synagogue in the absence of adequate separation.
R. Amsels insistence upon the righteousness of the ladies is well taken.97 At the same
time [and, in fact, as an extrapolation from the insistence on the righteous of the ladies,] it seems
to this student that with all due reverence manifest before R. Amsel his claim [in the context
of the second solution] that a Sabbath/festival related prohibition exists [against partition
assembly/disassembly] is contradicted by the aforementioned analyses of R. Silver, R. Ribiat, R.
Gross and R. Cohen. Namely, if a visual barrier is indeed required, then there is no status of
mechitzah ha-materet and hence no prohibition against either assembly or disassembly on the
Sabbath and festivals.98
97

Indeed, the theme of the superior righteousness of the ladies of Israel will be elaborated in the Conclusion of the
present essay.

98

R. Amsels additional (and independent) claim that the third solution violates the prohibition against ladies and
gentlemen congregating in the synagogue without adequate separation appears prima facie to be puzzling, since
even the second solution involves the dismantling of the intervening partition. On the other hand, if one counters
that the second solution violates no such prohibition because while the partition is absent at least spatial
separation continues, the same should be true of the third solution! [After all, the third solution involves ladies
remaining outside the gentlemens sanctuary, standing only in the corridor that leads to the gentlemens sanctuary.]
This student would therefore hypothesize that R. Amsels position represents a creative fusion of the
rulings of Seridei Esh II, no. 12 (analyzed supra, note 74) and Bnei Vanim I, pp. 223-224 (analyzed supra, note 41).
Namely, like Seridei Esh, R. Amsel holds that [at least post facto] it is permitted for ladies and gentlemen to
congregate in the synagogue for purposes unrelated to tefillah be-tzibbur as long as there is spatial separation, even
if no intervening partition exists. Thus, the second solution [for candy-throwing] is legitimate from the perspective
of synagogue sanctity, since the bimah is bombarded with candies during a pause in the prayer services (such that no
tefillah be-tzibbur is occurring at the time the partition is dismantled), and at all times ladies and gentelemen are
separate, even if no intervening partition exists during the candy bombardment. On the other hand, the third solution
[for candy-throwing] is unacceptable from the perspective of synagogue sanctity, since R. Amsel agrees with Bnei
Vanims argument that one must be cognizant of the arrival of latecoming or early-leaving gentlemen in the interior
landspace who will walk through the exterior landspace at the same time the ladies are already congregated there.
[N.B. Although Bnei Vanim employs this argument in context (supra, note 41) for purposes of championing the
geographic barrier theory, in our context R. Amsel is employing the same argument for purposes of evaluating the
adequacy of spatial separation during a pause in the prayer service.]
Actually, this students hypothesis appears slightly inconsistent with the fact pattern presented by R.
Wahrman to R. Amsel in their exchange, since R. Wahrman reports that the ladies dismantle the partition after the
completion of the haftarah text reading but still before the actual recitation of the concluding haftarah blessings. R.
Wahrman continues that the ladies then patiently wait until after the concluding haftarah blessings, whereupon the
prayer service will pause and the ladies can bombard the bimah with candies. Thus, from R. Wahrmans description
it appears that there is a period of time during which prayer (in the sense of the concluding blessings of the haftarah)
continues even though the partition has already been dismantled. This seems incongruent with Seridei Esh (and
indeed with the consensus of poskim who demand a partition throughout prayer services). The matter requires
further analysis, but perhaps R. Amsel does not consider the recitation of the final blessings of the haftarah to

82

In sum total, pursuant to the argument presented in Section E above that no synagogue
today may rely exclusively on the geographic barrier camp (due to the problem of a safek issur
de-Oraita) and instead every synagogue must possess at least a kinaesthetic barrier, it
presumably emerges that every synagogue will be permitted to assemble its partition on the
Sabbath. This is because assembling a mechitzah ha-materet on the Sabbath represents the
violation of a rabbinic interdiction. As such, one may invoke the principle of safek de-rabbanan
le-kula, by recognizing the following single safek to be lenient: Perhaps the halakhah does not
follow the geographic barrier camp, such that the synagogue partition is not a conventional
mechitzah ha-materet, whereupon it should become permissible to assemble the partition on the
Sabbath.
Still, even though according to the letter of the law one may rely on safek de-rabbanan
le-kula, the Mishnah Berurah to Orach Chaim 489 (14) points out that the Shulchan Arukh calls
upon Jews who are conscientious in championing mitzvoth (ha-medakdekim) not to place
themselves in a position of doubt wherein safek de-rabbanan le-kula becomes germane. Thus, a
congregation composed of medakdekim would be well advised, wherever possible, to avoid
assembling the synagogue partition on the Sabbath.
On the other hand, R. Yosef Ben-Arza, in his Yosef Daat to Tractate Avodah Zarah 7a
(p. 32), marshals sources which propose that there is no preference whatsoever to be stringent on
an unresolved controversy regarding a rabbinic prohibition, as distinct from a conventional
uncertainty regarding a rabbinic prohibition [where medakdekim are indeed advised to be
stringent]. The distinction, it is argued, lies in the fact that the Sages issued their ordinances with
the express understanding that the ordinances are to be rendered completely inoperative in case
of dispute between the poskim. If this approach is accepted, then it evidently emerges that even
medakdekim could assemble the synagogue partition on the Sabbath in good conscience.99
represent tefillah be-tzibbur. Alternatively [or additionally], perhaps this was indeed a miscalculation on R. Amsels
part.
[As explained supra, note 74, R. Emden is more lenient than R. Weinberg, allowing mixed seating in the
synagogue at times unrelated to tefillah be-tzibbur, whereas R. Feinstein is more stringent than R. Weinberg,
demanding an intervening partition in the synagogue even when no tefillah be-tzibbur occurs.]
99

See, however, Shut Divrei Chakhamim, Orach Chaim no. 343, [published in 5746, before R. Ribiats, R. Gross,
R. Cohens and Kollel Eretz Chemdahs respective works, although published after R.Henkins and R. Silbers
respective works.] There, R. Aryeh Zev Ginzberg reports that he heard in the name of R. Jacob Kamenetzky, as well
as directly from R. Alter Henoch Leibowitz, that a synagogue partition enjoys the status of a mechitzah ha-materet
[and so may neither be assembled nor disassembled on the Sabbath ]. The report originating from R. Kamenetzky is
truly remarkable, since earlier in the same work (as referenced supra, note 31) R. Ginzberg cites R. Kamenetzky as
ruling that it is forbidden to reduce the height of a synagogue partition below the specification of R. Moshe
Feinstein. Seemingly, then, R. Kamenetzky endorsed the kinaesthetic barrier theory, according to which it should be
permissible to assemble or disassemble the partition on the Sabbath. Ergo, a contradiction emerges between the two
rulings of R. Kamenetzky.
[See also R. Menasheh Klein, Shut Mishneh Halakhot XV, no. 112, who likewise claims (albeit without
citing R. Kamenetzky) that a kinaesthetic barrier constitutes a mechitzah ha-materet and so may not be assembled
on the Sabbath. As cogently noted by Shut Be-Mareh ha-Bazak VII, no. 9, R. Kleins position appears
unfathomable (with all due reverence manifest before the great luminary R. Klein), since were the synagogue
partition a mechitzah ha-materet, a ten-handbreadth high partition should suffice. Accordingly, it seems clear to this
student that the same question may be posed on R. Kamentzky.]
One possible forced resolution to the contradictory rulings from R. Kamenetzky would be based in the very
next [bracketed] paragraph in the main text, where the observation will be rendered that, halakhah le-maaseh [due
to a consideration that will be discovered infra, Section M,] a kinaesthetic barrier cannot be permissibly
assembled./disassembled on the Sabbath. It might be to this consideration that R. Kamenetzky was [presciently]
referring when he orally commented that the synagogue partition is a mechitzah ha-materet. In other words, the

83

[However, see the final paragraph of Section M further in this essay, where the discovery
will be made that because of an entirely novel consideration a kinaesthetic barrier may not be
permissibly assembled on the Sabbath.]
K. GAPS AT THE FOOT OF THE BARRIER
As concluded in the above Section E, a synagogue cannot rely exclusively on a
geographic barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic
barrier, in order to benefit from a sfek sfeka le-kula. Moreover, a congregation that follows the
Shakh and accordingly refuses to synthesize a novel sfek sfeka le-kula would be required to
possess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribes
to the Chavot Daats interpretation of the Shakh]. However, one further point which requires
clarification is whether a kinaesthetic or visual barrier can accommodate a gap at the bottom,
within three handbreadths of the ground. This frequently arises as a question in synagogues with
partitions stationed on wheeled platforms.
Obviously, a geographic barrier (such as that which is employed as a sukkah wall) may
permissibly possess a gap within three handbreadths of the ground, due to the principle of lavud.
However, lavud has already been discovered to be inapplicable in the context of the kinaesthetic
barrier position, since R. Feinstein disallows any gap larger than three inches, as explained in
Section C above. Theoretically, then, one could argue that a three-inch gap at the bottom of a
kinaesthetic barrier is unacceptable. On the other hand, one might counter-argue that it would be
socially awkward for a person to extend his hands or carry on a conversation across the partition
within the bottom three handbreadths of the partition. [In order to accomplish those feats, the
individual would have to be sitting or lying on the ground, which is a bizarre predicament in the
synagogue on all days other than the fast of Tishah be-Av100 as well as the prostrations during
the High Holidays.] But as a countervailing argument in favour of stringency, it should be
pointed out that although R. Feinstein in Iggerot Mosheh, Orach Chaim I, no. 39, demands a
partition that will prevent contact of hands of worshippers positioned on either side of the
partition, in Orach Chaim III, no. 23 he prescribes a partition that will prevent contact of their
hands and their bodies. Now, the feet of worshippers in the synagogue are assuredly
halakhically considered to be part of their bodies, and so the capacity to move ones foot across
the partition may also be contraindicated by R. Feinsteins remarks, in which case even a gap
within the three handbreadths of the ground would be unacceptable. And so what in fact is the
halakhah?
In the absence of any direct evidence, it seems to this writer that the matter is a safek
analogous to the doubt expressed by the Mishnah Berurah in Orach Chaim no. 336, 36. The
mishnah in Eruvin 99b teaches that even though the Sages prohibited resting on any part of a tree
synagogue partition is not literally a mechitzah ha-materet, but rather enjoys the same legal restriction as a
mechitzah ha-materet, in the sense that it may not be assembled/disassembled on the Sabbath. [Cf. Tradition 31:4
(Summer 1997), pp. 80-82, where R. J. David Bleich reports that R. Kamenetzky once orally told him that reports of
his oral pronouncements should be disregarded. Of course, that report of R. Bleich is ipso facto intrinsically
paradoxical. See Bioethical Dilemmas I (KTAV Publishing, 1998), p. 277, where R. Bleich in an entirely separate
context addresses how such a paradox may be resolved. In any event, Tosafot to Yevamot 77a, s.v. im, explain the
guidelines under which reports of oral pronouncements are to be accepted.]
100

And, of course, the fast of Tishah be-Av is prophetically guaranteed to be transformed into a holiday, as per the
gemara in Rosh Hashanah 18b, whereupon it is assuredly the case that Jews will no longer sit on the floor on
Tishah be-Av.

84

on the Sabbath [lest one come to detach foliage and thereby desecrate the Sabbath through the
labour of harvesting], it is permitted to rest on arboreal roots that are within a mere three
handbreadths of the ground, since they are considered to be assimilated into the ground.
Regarding this matter, the Mishnah Berurah (citing the Pri Megadim) investigates without
resolution the situation of a small bush bearing fruits or vegetables that is situated within three
handbreadths of the ground: Can one rest on the bush on the plea that it is simply considered part
of the ground (just like roots positioned within three handbreadths of the ground), or must one
avoid doing so, lest one come to pick the fruits or vegetables? For the Mishnah Berurah, a doubt
persists, and so the analogous safek must be assumed to be true for a kinaesthetic barrier
harboring a gap within three handbreadths of the ground.
Admittedly, Shulchan Arukh Orach Chaim 433:5 in the context of the mitzvah of
bedikat chametz requires searching for chametz on all home internal wall ledges or crevices
that are within human reach, so long as they are at least three handbreadths high. The operative
assumption, explains Mishnah Berurah 19, is that a person does not usually reach for ledges or
crevices less than three handbreadths in height. Seemingly, then, if this principle were transposed
to the realm of the synagogue partition, a kinaesthetic barrier should be allowed to possess a gap
at its foot of less than three handbreadths from the ground. Nevertheless, it seems to this writer
that bedikat chametz is not, in fact, a proof to be lenient for the synagogue partition. Arguably, a
person does not usually place chametz on ledges or crevices less than three handbreadths is
height because those locations being so close to the ground will likely become filthy with
dirt, spoiling the quality of any chametz deposited there. By contradistinction, fruits or
vegetables do naturally grow on bushes even if the bushes are within three handbreadths of the
ground, and the Mishnah Berurahs aforementioned comments in Orach Chaim 336 establish
that there is a real safek that an individual will reflexively reach for the fruit/vegetable even
lower than three handbreadths from the ground. Ergo, it is possible that a kinaesthetic barrier
needs to be closed, even within three handbreadths of the ground.
Accordingly, there is a sfek sfeka le-chumra to disqualify a synagogue partition that is
intended to serve as a kinaesthetic barrier but which also possesses a gap greater than three
inches within three handbreadths of the ground, as follows:
(i)
(ii)

Safek le-chumra #1: Perhaps the halakhah follows the visual barrier camp, such
that a kinaesthetic barrier is inadequate.
Safek le-chumra #2: Even if the halakhah follows the kinaesthetic barrier camp,
perhaps a kinaesthetic barrier by definition cannot accommodate a gap greater
than three inches even at the bottom.

Thus, a synagogue that relies on a kinaesthetic barrier as its partition must ensure that
there is no gap larger than three inches, even at the foot of the barrier.
Regarding the case of the visual barrier, it is equally unclear whether a visual barrier can
possess a gap within three handbreadths of the ground. On the one hand, one could argue that
since it is theoretically possible to see through such a gap, the barrier is disqualified. On the other
hand, one could counter-argue that one can only see with difficulty through such an aperture, and
so the barrier still functions as a proper visual barrier.
It seems to this writer that a precedent may be marshaled from Shulchan Arukh Orach
Chaim 671:6, which rules that Chanukah candles in order to fulfill the purpose of miracle
publicity (pirsumei nissa) should be placed three or more handbreadths above the ground. The
Mishnah Berurah (26) explains that candles within thee handbreadths of the ground are
considered part of the ground and will not be seen by spectators. However, the Mishnah Berurah
85

adds (based on the Pri Chadash) that post facto the candles are kosher. Evidently, the Mishnah
Berurah recognizes that there is a certain degree of visibility even in the range of within three
handbreadths of the ground, albeit with difficulty. Thus, one may inquire whether such difficult
visibility is of significance in the context of a synagogue partition. Apparently, the matter
remains an unsolved mystery.
Here, however, there is no sfek sfeka le-chumra, but rather a sfek sfeka le-kula to justify a
visual barrier that possesses a gap within three handbreadths of the ground, as follows:
(iii)
(iv)

Safek le-kula #1: Perhaps the halakhah follows the geographic barrier camp, such
that a gap within three handbreadths of the ground is acceptable.
Safek le-kula #2: Even if the halakhah follows the kinaesthetic or visual barrier
camps, perhaps a gap at the foot of the kinaesthetic or visual barrier is acceptable.

Admittedly, however, there is one case of a visual barrier that may not possess a gap
within three handbreadths of the ground. Namely, if the visual barrier is synthesized from cloth
or canvass, then it perforce already relies upon a sfek sfeka le-kula, as per Section J above.
Hence, a gap within three handbreadths of the ground would generate a sfek sfeka le-chumra, as
follows:
(v)
(vi)

Safek le-chumra #1: Perhaps the halakhah follows the kinaesthetic barrier camp,
such that a cloth or canvas partition is disqualified, as per Section I above.
Safek le-chumra #2: Perhaps a gap at the foot of a visual barrier is unacceptable,
as per the uncertainty described in this section (K).

Thus, a congregation which utilizes a cloth or canvass wall as its synagogue partition
and therefore makes it into a visual barrier in order to benefit from a sfek sfeka le-kula (as per
Section J above) must be careful that the wall extend completely to the ground.
L. LATTICE NETWORKS IN THE PARTITION
As concluded in Section E above, a synagogue cannot rely exclusively on a geographic
barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic barrier, in
order to benefit from a sfek sfeka le-kula. Additionally, as established in Section C and further
elaborated in Section G above, the kinaesthetic barrier may permissibly contain gaps of up to
three inches. Accordingly, one might propose that a lattice network could be employed as a
synagogue partition, so long as the individual spaces do not exceed three by three inches.
[Indeed, it may very well be that this is the arrangement envisaged by Shut Iggerot Mosheh,
Orach Chaim IV, no. 29.] For that matter, one could even employ a chain fence which consists
mostly of empty space since the spaces (on an individual scale) do not exceed three by three
inches.
However, upon careful analysis, this does not prove to be the case, thanks to the concept
of lavud le-chumra that is codified by the Mishnah Berurah in Orach Chaim no. 626, 17. Lavud
le-chumra, first enunciated by the Bach in his commentary to Tur, Orach Chaim no. 626, means
that prohibiting architectural quantities can combine if they are within three handbreadths of one
another. For instance, closely positioned thin segments of disqualified skhakh (such as growing
arboreal foliage, laundry wires or electricity cables) that overhang a sukkah may cause the
airspace in between them to be regarded as virtually filled with disqualified skhakh, with all the
consequences that this bears in the realm of hilkhot sukkah.
86

Lavud le-chumra, then, should also apply to a lattice network in the context of a
synagogue partition. In the context of the synagogue partition, it is precisely the empty spaces
that constitute the prohibiting architectural quantities. Even though each empty space may be
inconsequential on its own thanks to its diminutive size (in being three by three inches or less)
the fact that the empty spaces are within three handbreadths of one another should combine
them into a virtually agglomerated massive space, through the mechanism of lavud le-chumra.
Admittedly, R. Simchah Rabinowitz, Piskei Teshuvot to Orach Chaim no. 626, sec. 8,
catalogues many poskim who hold that lavud le-chumra only applies to wires (or other
disqualifying material) overhanging a sukkah when even without the intervening space
between the wires there is so much material in the wires that were the wires to be juxtaposed,
they would enjoy a width of four handbreadths or more. [The significance of the measure of four
handbreadths is that this is the minimum quantity of disqualified skhakh necessary to disqualify
an entire sukkah.] Accordingly, translating this caveat to the realm of the synagogue partition
would result in the conclusion that empty spaces [which are within three handbreadths of one
another] will only combine to one another if there is so much empty space in total (if the spaces
were to be juxtaposed) so as to measure a quantity of empty space that exceeds three by three
inches. As one may readily discern through empirical observation, this provision effectively
precludes the possibility of ever relying on a lattice network as a synagogue partition (most
especially in the case of a chain fence).
Thus, there is a sfek sfeka le-chumra to prohibit a synagogue from relying on a lattice
network as its kinaesthetic barrier, even though each space in the lattice network individually
measures three by three inches or less:
(i)

(ii)

Safek le-chumra #1: Perhaps there is lavud le-chumra, such that empty spaces
which are within three handbreadths of one another and which in total if they
were juxtaposed measure a quantity of empty space that exceeds three by three
inches combine to disqualify the synagogue partition, even though each individual
space (on a local scale) only measures three by three inches or less.
Safek le-chumra #2: Perhaps a kinaesthetic barrier does not help altogether, since
perhaps the halakhah follows the visual barrier camp (-which is a genuine safek,
as per Sections C and E above).

At the same time, consideration of both Sections K and L yields the further conclusion
that a synagogue which relies on a kinaesthetic barrier as its partition could permit a lattice
partition within the bottom three handbreadths of the wall provided that each space within the
lattice network measures three by three inches or less thanks to the following sfek sfeka le-kula:
(iii)

(iv)

Safek le-kula #1: Perhaps a kinaesthetic barrier does not need to be sealed within
the bottom three handbreadths of the partition [as per the doubt expressed in
Section K].
Safek le-kula #2: Perhaps the halakhah does not follow the Bach, such that we do
not say lavud le-chumra [as per the doubt expressed in this section (L)].
M. ACCESSIBLE DOORS IN A KINAESTHETIC BARRIER

As concluded in Section E above, a synagogue cannot rely exclusively on a geographic

barrier, due to a safek issur de-Oraita, but must rather possess at least a kinaesthetic barrier, in
order to benefit from a sfek sfeka le-kula. It seems to this writer that one may legitimately inquire
87

whether a partition halakhically serves as a kinaesthetic barrier when it contains an accessible

door. In other words, the barrier may meet all the criteria of a kinaesthetic barrier as heretofore
described in this essay (i.e. it exceeds shoulder height, it is synthesized from a rigid material, it
does not contain gaps exceeding three by three inches, etc.), but because there is a door
embedded in the partition which can theoretically be opened at any time, perhaps the partition is
not a true kinaesthetic barrier that is comparable to the balcony constructed at the Rejoicing of
the Water Drawing. After all, R. Moshe Feinstein admits in his Iggerot Mosheh, Orach Chaim II,
no. 43 that his extrapolation from a balcony to a kinaesthetic partition is based on sevara (logic)
which contains an element of novelty. Of course, R. Feinstein possesses full confidence in the
epistemological validity of his extrapolation, and rules so halakhah le-maaseh. Nevertheless, for
one to be certain that a kinaesthetic barrier emulates the balcony of the Temple, perhaps the
kinaesthetic barrier must be the kind of barrier across which normal traversing is absolutely
impossible, even through opening a door, just as is the case in the context of a balcony.
The same question arises when the kinaesthetic barrier is synthesized from free-standing
segmented boards that can easily be assembled or disassembled at will, such that the partition
functionally possesses multiple doors that can be theoretically opened at any time. Is such an
architectural arrangement compatible with Leviticus 19:30?
This writer would marshal potential proof to the side of stringency from an analysis of a
completely disparate responsum of the Iggerot Mosheh in Orach Chaim III, no. 45, devoted to
the permissibility of wearing photosensitive lens spectacles on the Sabbath. Because coloring is
one of the thirty-nine prohibited labours on the Sabbath, one might anticipate a halakhic problem
with venturing outside while wearing such spectacles. [The coloring occurs through a chemical
reaction wherein solar light strikes the silver chloride crystals that are trapped in the glass matrix,
resulting in the emergence of elemental silver (and hence a darkening of the lens). It is
essentially the same reaction that occurs when one snaps a photograph with a mechanical
camera, with the exception that the camera film reaction is non-reversible. In the photochromic
lens, copper ions are present, which reduce the chlorine atoms that are produced concomitantly
with the elemental silver, thereby reversing the original reaction.101] Although the color change
is reversible and thus avoids a biblical transgression, the reversible coloring of a substance is still
rabbinically contraindicated on the Sabbath. In fact, however, R. Feinstein completely permits
wearing such spectacles on the plea that the phenomenon of the lenses repeatedly converting
from light to dark to light and so on and so forth manifests the absence of even a rabbinic
infraction.
R. Israel Pesach Feinhandler, Shut Avnei Yashfeh II, no. 39, explains that R. Feinstein
means that the repeated conversion of the lens from one state to another demonstrates that the
photogray lens is legally analogous to a door that can be repeatedly opened and closed at will. It
is assuredly the case that one may permissibly open or close a door to a building on the Sabbath,
despite the biblical prohibitions against demolishing or constructing on that holy day. The reason
opening or closing a door is permitted is because the very function of the door is to be opened or
closed. Nothing new is created when a door is opened or closed. Likewise, the very function of
the photosensitive lens is to change from one color to another. Indeed, points out R. Feinhandler,

101

Automatic Sunglasses on p. 924 of Chemistry (3rd edition) by Dr. Steven S. Zumdahl (Houghton Mifflin
Harcourt, 1993).

88

it is precisely for this reason that the Mishnah Berurah in Orach Chaim no. 340, 17 permits
opening or closing a book with words printed along its edges on the Sabbath.102
By the same token, one could argue that a kinaesthetic barrier which possesses a door that
can be opened is not truly a kinaesthetic barrier that imparts the necessary aura of reverence
pursuant to Leviticus 19:30, since the function of a door is to be opened and closed repeatedly,
and while open the doorway allows free motion and socializing across the partition.
Even if we should assume that the analogy between the laws of opening a door on the
Sabbath and the laws of Sanctuary reverence is questionable, it seems to this writer that the
comparison is sufficiently great to generate a concern for the side of stringency, which in turn
triggers a sfek sfeka le-chumra, as follows:
(i)
(ii)

Safek le-chumra #1: Perhaps a kinaesthetic barrier, by definition, cannot possess a

door that is theoretically capable of being opened, as explained in this section.
Safek le-chumra #2: Perhaps a kinaesthetic barrier is altogether insufficient for a
synagogue, since perhaps the halakhah follows the visual barrier camp (-which is
a genuine safek, as per Sections C and E above).

Therefore, as a matter of practical halakhah, it would appear to this writer that a

synagogue which relies on a kinaesthetic barrier must ensure that there be no door in the barrier
that could theoretically be opened. And likewise, the kinaesthetic barrier must be one that cannot
be easily disassembled, for a barrier that can be easily disassembled is the equivalent of one that
possesses an accessibl door..
It further seems to this writer that a synagogue which relies upon a visual barrier faces no
such problem. The nature of a visual barrier is perfectly compatible with a door that can
theoretically be opened. To be sure, the door must actually be closed during the prayer services
themselves (otherwise there is neither a visual barrier nor even a kinaesthetic barrier), but once
102

R. Ovadiah Yosef, Shut Yechaveh Daat II, no. 47, similarly permits the donning of photosensitive spectacles
on the Sabbath, invoking the already published permission of R. Feinstein. R. Yosef also identifies a further
mitigating factor in order to strengthen the lenient conclusion, as follows. The person wearing the sunglasses
effectuates the colour change in a most unusual manner, since he is simply walking outside with his feet while
sporting a stylish facial accessory, rather than directly handling the accessory itself and exposing it to light [as would
occur, for example, in the case of a camera, whose use is indeed absolutely forbidden on the Sabbath]. Unusual
orchestration of a labour on the Sabbath is itself only rabbinically contraindicated. To that consideration, R. Yosef
adds the observation that it is a pesik reisheih (an inevitable but unintended production of labour) for the lenses to
change colour on the Sabbath, and some authorities permit a pesik resheih of a rabbinical prohibition. [For an
erudite analysis of the dispute whether a pesik reisheih is permitted in the context a rabbinical prohibition on the
Sabbath, see R. J. David Bleich, Contemporary Halakhic Problems V (Targum Press, 2005), pp. 134-135.] But, in
any event, the point to be appreciated here is that R. Yosef independently endorses R. Feinsteins original
responsum. R. Feinsteins original responsum is further affirmed by R. Joshua Isaiah Neuwirth, Shemirat Shabbat
ke-Hilkhatah (2nd ed.), ch. 18, footnote no. 70, as well as by R. Eliezer Yehudah Waldenberg, Shut Tzitz Eliezer
XX, no. 14.
[Cf., however, Mori ve-Rabbi R. Efraim Greenblatt in his Shut Rivevot Efrayim III, no. 126, who observes
that the above line of reasoning to permit the use of photochromic lenses is subject to vigorous debate between R.
Shlomo Zalman Weber, R. Shmuel Shmelke Friedman and R. Aaron Greenwald in the pages of the Olat haChodesh journal (vol. 1, no. 9, pp. 433-436; vol. 3, no. 4, pp. 216-220; vol. 3 no. 5/6, pp. 282-284; vol. 3, no. 8, pp.
418-425; vol. 3, no. 9, pp. 460-467) that were published during the years 5737-5739. See also And From Jerusalem,
His Word (Feldheim, 1995), unpaginated photo caption following p. 294, where R. Hanoch Teller reports that R.
Shlomo Zalman Auerbach and R. Joseph Shalom Eliashiv clashed regarding this very question. (I am grateful to the
editors of Wikipedia for calling the latter source to my attention.) See also R. Yehuda Spitz article at
<http://matzav.com/photogrey-glasses-on-shabbos>.]

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the door is closed throughout the prayer services the hypothetical ability for the door to be
opened does not detract from the awesome reverence created by virtue of the visual barriers
presence. This is because vision is an instantaneous phenomenon; either one sees or one does not
see. If one does not see, the theoretical ability to see if the door would be theoretically opened is
of no legal significance. Thus, safek le-chumra #1 is moot.103
The same cannot be said for a kinaesthetic barrier. The purpose of a kinaesthetic barrier is
to prevent even the theoretical possibility of socializing. As explained above in Section G, this
is why the longitudinal scope of a kinaesthetic barrier must be absolute. For a worshipper to
experience reverence according the kinaesthetic barrier approach, the worshipper must be aware
that there is zero possibility of normal socializing. The existence of a door which may be opened
at will is doubtfully compatible with such awareness, which generates a safek le-chumra [that in
turn precipitates a sfek sfeka le-chumra, as delineated earlier in this section.]
This dichotomy between a kinaesthetic barrier and a visual barrier may be
methodologically compared to the distinction offered by R. Moshe Feinstein in explaining the
difference between the halakhic phenomena of seeing and hearing, in his Iggerot Mosheh, Orach
Chaim II, no. 108. There, R. Feinstein is inclined to validate the hearing of a microphoneamplified sound as an authentic halakhic fulfillment of hearing the original natural sound, such
as would occur when a cantor reads the megillah before a synagogue congregation using a
microphone on Purim. R. Feinstein observes [in qualitative terms] that the speed of light is an
astonishing 3 * 10^8 m/s, whereas the speed of sound at room temperature is approximately one
million times slower, at a gentle 3.4 * 10^2 m/s. The difference, argues R. Feinstein,
demonstrates the fundamental distinction between light and sound. Sight is a virtually
instantaneous process, whereas sound is a slow chain-reaction process of air molecules colliding
with other air molecules. Since sound is all a chain of indirect causation, there is nothing
artificial to adding one more step (viz. the microphone) to the chain reaction.
Accordingly, just as [in the opinion of R. Feinstein] one must halakhically distinguish
between sight and sound, so too must one distinguish between sight and socializing. Sight is
instantaneous, whereas socialization (which indeed involves sound) represents a slow series of
events. If one holds that a visual barrier is required to fulfill Leviticus 19:30, then the
impossibility of immediate sight is sufficient. And if one holds that a kinaesthetic barrier is
required to fulfill Leviticus 19:30, then the impossibility of even theoretical socializing must be
guaranteed. And for this reason, a kinaesthetic barrier cannot accommodate a door that may be
hypothetically opened at will.
Of course, R. Feinsteins particular ruling regarding the microphone is subject to
104
debate. Many authorities (such as R. Shlomo Zalman Auerbach in his Shut Minchat
Shelomoh I, no. 9) disagree with R. Feinstein because they regard the microphone as a clever
parrot that is simply repeating every word the cantor recites. Since mishnah in Rosh Hashanah
29a declares that anyone who is not obligated in a mitzvah cannot discharge the obligation of
others, it is obvious that a parrot cannot read the megillah on behalf of a congregation.
Nevertheless, it seems to this writer that the logic inherent in R. Feinsteins position regarding

103

Of course, because one is dealing with a visual barrier, safek le-chumra #2 is also moot.

104

See the plethora of sources cited by R. Simchah Rabinowitz in his Piskei Teshuvot to Mishnah Berurah, Orach
Chaim no. 689, sec. 3. See also the treatment of R. J. David Bleich in Tradition 42:1 (Spring 2009, Cochlear
Implants).

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the microphone does enjoy some degree of support,105 and it is sufficient to generate a safek lechumra vis--vis the definition of a kinaesthetic barrier. And therefore a kinaesthetic barrier must
not possess a door that can hypothetically be opened at will, and must likewise not be one that
can be easily disassembled.
Further proof that a kinaesthetic barrier may not possess an accessible door may be
marshaled from the treatment of R. Nathan Neta Halevi Landau, Shut Kenaf Renanah I, no. 9.
R. Landau is himself an exponent of the visual barrier camp. But R. Landau astutely observes
from the mishnah in Middot 2:3 that there were twelve steps leading from the Temple Mount to
the external courtyard, which each step possessing a half-cubit elevation. Thus, there was
actually a six-cubit altitudinal difference already in place between the Temple Mount and the
105

From the references catalogued in the immediately preceding note, it emerges that R. Feinsteins position is
supported (to at least some degree) by Minchat Elazar, Mikraei Kodesh, Tzitz Eliezer and Shevet ha-Levi.
Additionally, Chazon Ish is reported by R. Auerbach to have orally agreed with R. Feinsteins microphone analysis.
Moreover, in an oral lecture delivered on 5 Adar, 5769 (originally publicized at <http://www.maran1.com>), R.
Ovadiah Yosef rules that, post facto, one can fulfill the obligation to hear the reading of the megillah through a
microphone, in accordance with R. Feinstein. This is truly remarkable since R. Ovadiah Yosef has earlier ruled in
Shut Yechaveh Daat III, no. 54, that one cannot fulfill the obligation in that manner even post facto. Evidently, R.
Yosef has reversed his position (though, surprisingly, he does not make a point of this during his lecture).
Parenthetically, R. Yosef also mentions in the course of his lecture that one cannot fulfill the obligation by
hearing the megillah on a live radio broadcast, even post facto. This is entirely harmonious with R. Yosefs earlier
ruling to the same effect in Shut Yechaveh Daat II, no. 68. Accordingly, it emerges that R. Yosef distinguishes
between a radio and a microphone.
To this writer, R. Yosefs distinction appears entirely cogent. Regarding a microphone, there is indeed a
legal argument that can be advanced to recognize the broadcast sound as authentic. Imagine, for instance, that a
cantor reading the megillah is standing twenty meters away from the public amplification speakers. Even if the
microphone were deactivated, the cantors natural singing could be heard until the point where the public
amplification speakers are stationed (though not necessarily much further). Thanks to the fact that the microphone is
activated, the singing in a legal sense (though not scientific sense) bounces off the public amplification speakers
and is broadcast hundreds meters further, extending throughout the auditorium. If all of sound is halakhically
regarded as a chain reaction, then the broadcast sound is natural. By contradistinction, when a cantor in a radio
station reads the megillah, and someone is listening on a radio unit positioned thousands of meters away, it is
inconceivable to argue that the broadcast sound relates to the cantors singing. After all, were the radio station
deactivated, the natural singing of the cantor would not even reach the radio unit thousands of meters away. For the
same reason, it seems obvious to this writer that there is no basis to validate megillah reading on a telephone. Were
the telephone deactivated, the cantors singing would not be heard through the fibre optic cables that bridge the two
interlocutors in a telephone conversation. Thus, with all due reverence manifested before the great luminary R.
Moshe Feinstein [-concerning whom this student possesses an oral tradition from Mori ve-Rabbi R. Joshua Zvi
Shmidman to the effect (at least in a homiletic sense) that Shekhinah medaberet mi-gerono shel Mosheh], this
student must respectfully demur from his ruling in Iggerot Mosheh, Orach Chaim IV, no. 91, sec. 4 that one can
discharge the obligation of havdalah by hearing it on the telephone [which R. Feinstein extrapolates from the
microphone]. {R. Feinsteins telephone position is also advocated by Mori vi-Rabbi R. Efraim Greenblatt in Shut
Rivevot Efrayim II, no. 115, sec. 108. R. Greenblatts responsum was actually published prior to R. Feinsteins. R.
Greenblatt further reports (in the index of his volume of responsa) that he received the same ruling from the Rebbe
of Helmitz.} The microphone argument advanced by R. Feinstein is indeed compelling and thus creates a safek to
the side of leniency; the telephone extrapolation appears more of the nature le-chadudei (pursuant to the gemara in
Berakhot 33b, Eruvin 13a, Megillah 25a, Nazir 59b, Zevachim 13a, Chullin 43b, Niddah 4b and idem. 45a; viz. to
test the audience to see if it is listening) and so cannot create even a safek to the side of leniency. Cf. the final
paragraph of Section H above, invoking Iggerot Mosheh, Yoreh Deah III, no. 88.
In summation, based on the method of adjudicating unresolved disputes among the poskim described above
in Section E of this essay, it would seem to this writer that one could countenance employment of a microphone (-or
of a hearing aid, which is equivalent in this respect to a microphone) for fufillment of a rabbinic mitzvah which
requires hearing, but not for fulfillment of a biblical mitzvah. A telephone or radio may never be employed, even for
a rabbinic mitzvah.

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external courtyard even before the Sages constructed the balcony. According to the gemara in
Sukkah 51b, the ladies and gentlemen were already separated, with the ladies on one level and
the gentlemen one another, even before the Temple balcony was constructed. I.e., originally the
ladies were in the external courtyard and the gentlemen were on the Temple Mount, and then the
positions were switched with the ladies on the Temple Mount and the gentlemen in the external
courtyard. The fact that the Sages nevertheless subsequently insisted on overriding I Chronicles
28:19 to build the Temple balcony demonstates that the six-cubit altitudinal difference was
inadequate. And the reason for this inadequacy, argues R. Landau, is because one could see from
one level to the other. The entire purpose of the balcony was not to create an altitudinal
difference between the ladies and gentlemen [-because that already existed from before], but
rather to create total invisibility. Ergo, R. Landau believes that the balcony was indeed built with
an accompanying visual barrier, and so must it be for posterity.
Now, what would the exponents of the kinaesthetic barrier camp answer in response to R.
Landaus astute observation? If there was already a six-cubit altitudinal difference between the
ladies and the gentlemen, was this not ipso facto a kinaesthetic barrier even before the balcony
was constructed? How could the Sages override I Chronicles 28:19 if a kinaesthetic barrier
already existed without the balcony? Apparently, one must answer that the fact that whichever
population that was situated on the Temple Mount enjoyed the ability to ascend the steps until
immediately opposite the entranceway to the external courtyard itself essentially abrogated the
concept of a kinaesthetic barrier. It was only once a balcony was constructed with an
accompanying access staircase totally outside the Sanctuary that a true kinaesthetic barrier was
achieved. In other words, legally speaking, the very nature of a kinaesthetic barrier is an
institution which under no circumstances can ever be circumvented within the Sanctuary to
facilitate socialization between the two populations on either side of the barrier. The theoretical
ability of individuals to ascend a staircase within the Sanctuary is antithetical to the concept of a
kinaesthetic barrier. Mutatis mutandis, the theoretical ability of individuals to open an accessible
door within the Sanctuary may be argued to be antithetical to the very concept of a kinaesthetic
barrier.106

106

Actually, given this proof, it would also emerge that if a staircase exists within the synagogue that leads from the
gentlemens section to the ladies balcony, then there is a safek le-chumra that no kinaesthetic barrier has been
achieved, and the balcony counts only as a geographic barrier. Accordingly, such a synagogue partition would be
disqualified.
Of course, one could counterargue that the balcony itself also constitutes a visual barrier (even if not a
kinaesthetic barrier), apropos the position of Divrei Malkiel and Teshuvot ve-Hanhagot [who as already analyzed
supra, notes 35 and 40 both hold that reverence in the Sanctuary is achieved when either the ladies section is
located on a balcony (even though it is visible), or if located on the same level plane as the gentlemens section
when it is obscured by a visual barrier]. For Divrei Malkiel and Teshuvot ve-Hanhagot, a balcony is automatically
reckoned as a visual barrier even if it is technically possible to see the balcony from the gentlemens section. This is
because people do not normally look upwards at a balcony. However, Divrei Malkiel and Teshuvot ve-Hanhagots
joint position is itself contested (as discussed supra, note 40). Moreover, perhaps Divrei Malkiel and Teshuvot veHanhagot only envisaged a balcony to be automatically considered a visual barrier when there is no means of
accessing the the balcony by staircase from the gentlemnes section. Under such circumstances, where the
congregants in the gentlemens sanctuary realize that they cannot reach the ladies sanctuary in any way, the
existence of the ladies section loses all cognitive meaning and disappears into the background. But when an
accessible staircase exists within the synagogue, even Divrei Malkiel and Teshuvot ve-Hanhagot might agree there is
no more crypsis, because people realize that they can move from one sanctuary to the other by means of the
staircase. [Arguably, this would be somewhat analogous to the gemara, Sukkah 2b, which observes that although a
person does not generally look at skhkah which is higher in altitude than twenty cubits, he will do so if the walls of
the sukkah actually reach the skhakh.]

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Indeed, it seems to this writer that the dichotomy between seeing and socializing is
necessary to rescue the kinaesthetic barrier camp from the refutation advanced by R. Joel
Teitelbaum at the very beginning of his Shut Divrei Yoel, Orach Chaim no. 10, sec. 1, where
the latter remonstrates: Of what benefit is a partition until over shoulder height if the heads and
the figures are revealed? Behold the partition between the people is meaningless for everything
follows the head, for it is from there [the head] that the frivolity and the idle chatter as well as the
prohibited chatter emanate! In response to R. Teitelbaum, it seems to this student that the point
of a kinaesthetic barrier is not just that it exceeds shoulder height, but that (as postulated in the
present section of this essay) that it impenetrably divides the auditorium from end to end, without
any accessible door to bridge the sides. Psychologically, such a formidable division wreaks
social havoc between both sides, and hence creates an aura of awe in the Sanctuary (in
fulfillment of Leviticus 19:30), even if peoples heads are technically visible. The heads may be
technically visible, but they are of no psychological interest to spectators on the other side of the
barrier, because everyone realizes there is no way to traverse the barrier from one side to the
other.107
Thanks to this novel discovery, it is necessary to revisit and amend the assumption that
was rendered above in Sections C and J regarding the permissibility of assembling a kinaesthetic
Thus, there is presumably a safek le-chumra that when a staircase exists within the synagogue that leads
from the gentlemens section to the ladies balcony, and the balcony is visible, then the balcony constitutes neither a
kinaesthetic barrier nor a visual barrier. Accordingly, it seems to this writer that such a synagogue partition is
disqualified.
107

It further seems to this writer that the dicohotomy between seeing and socializing explains the heretofore
ostensibly unfathomable reasoning of R. Moshe Feinstein in Iggerot Mosheh, Orach Chaim I, no. 39, s.v. aval
mistaber lefi aniyut daati (first four lines).
As one of his proofs that a kinaesthetic barrier suffices and that there is no need for a visual barrier (-a
position debated in Section C above), R. Feinstein points to the evolution of the Rejoicing of the Water Drawing
logistics described by the gemara in Sukkah 51b. Originally, the ladies congregated within the Temple courtyard,
while the gentlemen congregated outside on the Temple Mount. R. Feinstein reasons that under such circumstances
the Sages knew full well that the gentlemen would have to see the ladies section (since the festivities were
occurring in the courtyard, where the ladies were congregated), and yet this did not bother the Sages one iota.
The exponents of the visual barrier camp (represented by Divrei Yoel, Orach Chaim no. 10, sec. 2)
justifiably express astonishment at R. Feinsteins proof, for according to his own proof, then even a kinaesthetic
barrier should not be necessary (-since, by the same token, there was originally no kinaesthetic barrier between the
ladies and gentlemen)! Is this not, by R. Feinsteins own admission, the entire purpose of the gemara: to say that the
original logistics were totally unsatisfactory in terms of Leviticus 19:30, and therefore the Sages had to override the
Temple blueprints to rectify the glaring problem? Evidently, no proof whatsoever can be marshalled in terms of
normative Halakhah from what originally occurred in the Temple! What originally occurred in the Temple was
unacceptable, and in order to decipher that which is proper conduct according to Halakhah, one must focus on the
ultimate enactment of the Sages (viz. the construction of the balcony for the ladies); it is only from the latter
template that one can derive the normative principles governing the mitzvah of a synagogue partition. [Indeed, this
remonstration of R. Feinsteins opponents to his proof is seemingly so obvious, that this student completely
omitted any reference to R. Feinsteins proof in Section C above, and instead presented R. Feinsteins other
proofs, which are indeed authoritative and sufficiently powerful to create a safek in R. Feinsteins favour.]
However, given the dichotomy between seeing and socializing presented in this section, we can now
appreciate the cogency in R. Feinsteins heretofore ostensibly unfathomable proof. R. Feinstein means to say that
seeing is an instantaneous process; the fact that even initially the Sages arranged the Temple logistics such that it
was obvious that the gentlemen would see the ladies section proves beyond cavil that there is no need for crypsis.
Socializing, on the other hand, is a gradual and indirect process. Originally, the Sages did not realize that there
would be any socialization; later, when they realized that socialization might occur, the Sages constructed the
balcony. Arguably, then, the purpose of the Temple balcony is only to serve as a kinaesthetic barrier and not to
generate crypsis.

93

barrier in the synagogue on the Sabbath. Since it now emerges that, halakhah le-maaseh, a
kinaesthetic barrier must be so formidable that it not contain a door and not be susceptible to
easy disassembly, the only kind of kinaesthetic barrier partition which would be acceptable in the
synagogue is one that could never be assembled on the Sabbath, due to the prohibited labour of
construction. For instance, a makeshift partition fabricated from walls stationed on wheeled
platforms would not suffice; it would have to be bolted together in a manner that would prevent
easy disassembly, in order to fulfill Leviticus 19:30. And, as such, a kinaesthetic barrier cannot
be assembled on the Sabbath. [And, at the same time, it remains the case that a visual barrier
may be permissibly assembled on the Sabbath, as mentioned in the above Sections C and J.]
N. PUBLIC PRAYER OUTSIDE A SYNAGOGUE
Even when a congregation prays in a secular building that does not serve as a synagogue,
R. Moshe Feinstein (Iggerot Mosheh, Yoreh Deah II, no. 109) requires a partition. R. Feinstein
makes this point in the context of a certain society whose members periodically meet to discuss
and render executive decisions. R. Feinstein rules that when the time for praying minchah or
maariv arrives, the gentlemen and ladies cannot pray in the same meeting room. Rather they
must pray in separate rooms.
[Apparently, in the particular case that R. Feinstein was adjudicating, there was no
option of constructing a partition within the actual room where the meetings would occur. This is
certainly consistent with the architectural reality of such venues as corporate business meeting
halls.]
R. Feinstein never explains why a partition is required even when a congregation prays in
a secular building. However, it seems to this writer that the underlying reason is obvious based
on R. Feinsteins original responsum (Iggerot Mosheh, Orach Chaim I, no. 39) regarding the
obligation for a partition when a congregation prays. There, R. Feinstein demonstrates (as
discussed and debated above, in Section A) that the obligation for a partition in the Temple
constitutes a mitzvah de-Oraita. R. Feinstein argues that the same holds true for the synagogue,
because the Ran Al ha-Rif in Megillah (p. 8a in the pagination of the Rif) explains that the reason
that the Sages endowed synagogues with sanctity is on account of the prayers that are recited
therein. This implies, extrapolates R. Feinstein, that when a congregation is reciting communal
prayers, the congregation is treated as though it is virtually present in the Temple.
In other words, R. Feinsteins actual proof stems from the Rans conspicuous avoidance
to offer the evident explanation that the Sages simply endowed the synagogue with sanctity on
account of the biblical sanctity of the Temple, seeing as a synagogue is considered a Minor
Sanctuary by Ezekiel 11:16 (as per Megillah 29a). The fact that the Ran insisted instead on
attributing the rabbinic decree to ordain a synagogue with sanctity to the special prayers that are
recited therein (i.e. kaddish, kedushah and barkhu) reveals that the sanctity of those prayers is
actually biblical in nature. [The axiomatic assumption of R. Feinstein is that the Sages would
only decree rabbinic sanctity in a synagogue on account of a pre-existing biblical sanctity.]
Indeed, it seems to this writer that a support to R. Feinsteins thesis may be adduced from
Tosafot to Shevuot 7b (s.v. ba-avodah zarah hu omer le-maan tamei et Mikdashi), who
translate the term Mikdashi in Leviticus 20:3 as the Sanctity of My Name. Thus, one could
argue that when the members of the congregation are occupied with the Sanctity of the Name of
the Holy One, Blessed Be He, by reciting kaddish, kedushah or barkhu, they are present in a
virtual Temple.
Accordingly, it emerges that no matter what building a congregation is inhabiting at the
time that it recites kaddish, kedushah or barkhu, it is logical to assume that a partition is
94

required, because the congregation is regarded to be virtually present in the Temple. And so rules
R. Feinstein in Iggerot Mosheh, Yoreh Deah II, no. 109, as explained.
However, this position is contradicted by a different responsum that is attributed to R.
Feinstein. Namely, in the posthumously published responsum Iggerot Mosheh, Orach Chaim V,
no. 12, sec. 1, R. Feinstein is asked whether a partition is needed when a congregation prays at a
house of mourning or in a wedding hall of celebration. R. Feinstein answers that a house of
mourning is a public gathering and therefore a partition is needed for tefillah be-tzibbur.
However, continues R. Feinstein, if the ladies refuse to leave the room, one may pray anyway [so
long as the ladies and gentlemen are positioned on separate sides of the room108] because it is
considered to be "be-akrai" - an isolated event. By contradistinction, rules R. Feinstein, a
wedding is a private event where only select guests are invited. Thus, tefillah be-tzibbur at a hall
of celebration does not require a partition. Rather, it is sufficient for gentlemen to stand on one
side and for ladies to stand on the other side of the room.
It would seem to this writer that a number of points need to be rendered regarding this
contradictory responsum of R. Feinstein. Firstly, it appears in a volume that was published by R.
Feinsteins grandchildren in 5756 and did not undergo review by R. Feinstein, for R. Feinstein
had ascended to the Heavenly Academy a decade earlier.109 Secondly, this responsum was not
personally written by R. Feinstein. Rather, as explained in an editorial gloss by R. Feinsteins
grandchildren, R. Feinstein dictated his words in Yiddish to another scholar, and the other
scholar then composed the Hebrew text of the responsum, either orally reciting or visually
presenting it before R. Feinstein. R. Feinstein subsequently signed it. Thirdly and most
significantly, this responsum makes no mention of the fact that it is reversing the decision of
Iggerot Mosheh, Yoreh Deah II, no. 109 or the analytical reasoning of Iggerot Mosheh, Orach
Chaim I, no. 39. Thus, it seems difficult to rely on this contradictory responsum to exempt a
congregation that prays in a secular building from the obligation of a partition.
Indeed, if it were true that a partition is not required for prayer in a secular building
and/or at a private event, then the entire need for a synagogue partition could be eliminated by all
Jewish congregations simply opting to assemble in a private secular hall. Yet, in Iggerot Mosheh,
Orach Chaim I, no. 44, R. Feinstein does not appear to accept such an approach. There, he
addresses a synagogue which refuses to install a partition but in which the gentlemen are
positioned on one side and the ladies are stationed on the other side. R. Feinstein declares that
the synagogue is already transgressing a biblical interdiction simply by its lack of a partition, but
that the synagogue should nevertheless be admonished to keep each population separate on each

108

Although this caveat is not explicitly articulated by R. Feinstein, the caveat is nonetheless implicit, on two
counts. Firstly, the original question that was posed to R. Feinstein inquired whether a partition is needed at a shivah
house, or whether it is sufficient for empty space (hefsek avir) to intervene between the ladies and gentlemen. At no
time did R. Feinsteins interlocutor even suggest the possibility that ladies and gentlemen could be literally mixed
(without even spatial separation) at a shivah house. Secondly, in R. Feinsteins answer regarding prayer at a
wedding hall [which this responsum of Iggerot Mosheh claims should be treated more leniently than a shivah
house,] R. Feinstein requires that ladies and gentlemen be separated by space. A fortiori, the positioning of ladies
and gentlemen in separate areas would represent an indispensable obligation for prayer at a shivah house. Thus,
when R. Feinstein states that the obligation for a partition at a shivah house can be post facto ignored if ladies refuse
to leave the room, R. Feinstein means only to ignore the obligation for a partition, not the obligation for spatial
separation. [I am grateful to R. Chaim Steinmetz for bringing this valuable insight to my attention.]
109

See supra, note 21.

95

side, so as not to increase its transgression.110 But, according to the newly discovered
posthumous responsum, R. Feinstein could have offered the synagogue an expedient to avoid
any transgression whatsoever: R. Feinstein could have told the executive of the synagogue to
move its services into a private secular hall where people will assemble by personal invitation
only. Then a partition would not be needed altogether!
Accordingly, it seems difficult to grant normative credence to this contradictory
responsum. And so it should be assumed that a partition is required every time a congregation
prays in a building, even if the building is secular or is a private location.
R. Yehudah Herzl Henkin, Shut Bnei Vanim I, no. 4 (final paragraph), addresses the
issue of prayer in a secular building, as well. R. Henkin dismisses as absurd the contention that a
temporary place of congregational prayer be exempted from a partition. Thus far, R. Henkins
analysis is entirely cogent. However, R. Henkin proceeds to state that if the additional mitigating
factor is added that none of the ladies in the same room are occupied in prayer, then a group of
gentlemen seeking to pray in a secular building are indeed exempted from the obligation for a
partition, and is sufficient for the gentlemen to stand apart from everyone else. This arises, for
instance, when a group of gentlemen decide to form a minyan in the corner of a wedding hall for
minchah or maariv, notwithstanding the presence of ladies in the same hall.
Although this leniency of R. Henkin is more limited (and hence more reasonable) than
the leniency contained within the Iggerot Mosheh, Orach Chaim V, no. 12, it too appears to be
devoid of justification, with all due reverence manifest before the great luminary R. Henkin.
Once one accepts R. Feinsteins thesis in Orach Chaim I, no. 39, viz. that the very decision of a
congregation to recite kaddish, kedushah or barkhu triggers the obligation of you shall revere
My Sanctuary, there is no reason to assume that the decision of ladies not to participate in
prayer in any way exempts the congregation from the mitzvah of a partition.111
These norms apply when the congregation prays inside any building. By
contradistinction, when praying outdoors, the requirement for a synagogue partition is replaced
by that of a four-cubit horizontal buffering space zone.112 This student presumes that one should
envisage a virtual rectangle encompassing all the gentlemen participating in the outdoor prayers,

110

For an attempted explanation why the transgression would be increased by interspersing the ladies and gentlemen
(as opposed to having them remain separate without an intervening partition) see supra, note 11.
111

For the same reason, the ruling attributed to R. Shlomo Zalman Auerbach by Halikhot Shelomoh, Tefillah ch. 8,
footnote 4, viz. that there is no need for a partition when a congregation prays onboard an airplane because the
aircraft is not a place designated for communal prayer, is (with all due reverence exhibited before the great luminary
R. Auerbach) respectfully overturned. [I am grateful to R. Moishe Dovid Lebovits in his The Mechitza Why,
How and When (published in his journal Halachically Speaking, Vol. 2, 2006) for bringing this source to my
attention.] However, as will be presently noted in the text, there may be an entirely separate basis to exempt a
congregation onboard an airplane from the requirement for a synagogue partition: the fact that an airplane might not
be halakhically regarded as a building. See infra, note 116. [In any event, it should be noted that R. Auerbach
subsequently rules that quite apart from considerations of a synagogue partition tefillah be-tzibbur should be
omitted on board an airplane (and Jewish passengers should instead pray privately), so as to facilitate the free
movement of the aviation crew throughout the cabin, and thereby sanctify the Name of Heaven. (Source: Halikhot
Shelomoh, Tefillah ch. 8, footnote 12.) I am grateful to R. Lebovits for bringing this to my attention, as well, in his
Halachos for the Air Traveler, also published in his journal Halachically Speaking. This is also the opinion of R.
Hershel Schachter in his article Davening on Airplanes, published at
<http://www.torahweb.org/torah/special/2010/rsch_airplanes.html>.]
112

See supra, note 45. In light of the calculation offered supra, note 32, four cubits may equal as much as 240 cm.

96

and from the edges of that rectangle draw the buffering zone in every direction.113 The definition
of outdoor participants is the population of individuals who are both capable of hearing the
sheliach tzibbur and of seeing one another in an unbroken chain.114 Although the Temple
external courtyard described in Sukkah 51b which serves as the entire precedent for the
synagogue partition obligation was unroofed, the Temple Mount complex was surrounded by
walls and so was treated as an indoor area.115
When communal prayer occurs in a vehicle capable of motion (such as onboard a
spacious automobile, locomotive train, maritime vessel, airplane or space shuttle), the question
of whether the quorum should be treated as praying within a building [such that a partition is
required] or in the outdoors [such that a four cubit buffer zone is required] will depend upon the
discussion among the poskim regarding the status of a thrown tent (ohel zaruk). That is a
highly complicated topic whose adjudication resides beyond the scope of this essay.116
113

A similar geometric methodology is employed when calculating halakhic city limits as well as an individuals
personal four-cubit entourage, as per the fourth and fifth chapters of Tractate Eruvin. Were it not so vis--vis tefillah
be-tzibbur, an absurd situation would be created wherein ladies and gentlemen can be interspersed as an outdoor
congregation, so long as each gentleman is at least four cubits away from each lady. Simple logic dictates that this
does not represent the fulfillment of the midrash cited supra, note 45, and therefore that the rectangular calculation
from Eruvin chs. 4-5 be adopted.

114

See sources to this effect cited by R. Simchah Rabinowitz, Piskei Teshuvot to Mishnah Berurah, Orach Chaim
no. 55, sec. 22.

115

This principle may be readily inferred from the Shaarei Teshuvah to Shulchan Arukh Orach Chaim no. 90, 1.
In context, the Shulchan Arukh codifies the halakhah from the gemara in Berakhot 34b that one should not pray the
amidah outdoors, for it is precisely when one is prays indoors that one will be enveloped by an aura of reverence for
the King. Regarding this, the Shaarei Teshuvah approvingly cites authorities who equate an unroofed area that is
circumscribed by walls as being considered indoors for purposes of reverence. Shaarei Teshuvahs ruling is
subsequently affirmed by the Mishnah Berurah (12) as well as R. Eliezer Yehudah Waldenberg in the latters
Shut Tzitz Eliezer XVIII, no. 18, sec. 2. Cf., however, Piskei Teshuvot to Mishnah Berurah, Orach Chaim no. 5,
who cites a dispute among the poskim whether the Shaarei Teshuvah is normative. Nevertheless, it remarkably
emerges from the latter discussion that even those poskim who dispute Shaarei Teshuvah concede that the city of
Jerusalem is special; in Jerusalem (and according to this dissenting opinion, only in Jerusalem) an unroofed area
circumscribed by walls is treated as indoors. Thus, seeing as the Temple Mount complex was self-evidently located
in Jerusalem, all poskim will agree that it was treated as an indoor area.

116

For sources on this subject, see Contemporary Halakhic Problems V, pp. 310-326; as well as R. Ovadiah Yosef,
Shut Yabia Omer X, Yoreh Deah no. 52. Those analyses deal with the question of kohanim voyaging over
cemetery airspace. See also the Kol Zvi journal published by the Wexner Kollel of Yeshiva University, Vol. 7
(5765), pp. 19 and 81 for a debate between R. Elijah Meir Bloch and R. Menachem Segal Pollack as to whether the
entire subject of ohel zaruk is only relevant to questions of ritual purity or whether it pertains to other spheres of
Halakhah (which would presumably include the realm of a synagogue partition). An allusion to this point of
contention apparently materializes in R. J. David Bleich, Contemporary Halakhic Problems III (KTAV Publishing,
1989), p. 57, where R. Joseph Shalom Eliashiv is cited as having negated the equation between an airplane and a
halakhic home for purposes of kindling Chanukah candles, seeing as the airplane is an ohel zaruk. [N.B. Actually,
an airplane is inferior to an ohel zaruk, as emerges from R. Bleichs subsequently published Contemporary Halakhic
Problems V, and should probably be characterized as an ohel poreach, with all due reverence manifested before
the great luminary R. Eliashiv.]
On Dec. 10, 2009, this student telephoned R. Bleich to specifically inquire, given the above sources, how
an airplane passenger should conduct himself on Chanukah. The following is the response this student was
privileged to receive the same day by electronic mail:
I have made no attempt in the writings you have cited to offer a definitive opinion with regard Chanukah lights on
airplanes. I consider the issue sufficiently complicated so that I would advise a person not to travel during a time
that would make kindling Chanukah lights a problem. On the other hand, I see no reason why, if possible, he should

97

O.
A HYPOTHESIZED APPROACH TO
RABBI FEINSTEINS SURPRISING RESPONSUM
As R. Yom Tov Halevi Schwarz, Maaneh la-Iggerot no. 63 cogently observes, there is
one exceptional responsum among R. Feinsteins epistles which prima facie seems mysteriously
inconsistent with R. Feinsteins series of rulings on synagogue architecture. In Iggerot Mosheh,
Orach Chaim II, no. 43, R. Feinstein is consulted by a synagogue which has heretofore
possessed a balcony as its ladies section, but now wishes to facilitate accessibility of the
synagogue by transferring the ladies section to the floor level, accompanied by an intervening
wall of eighteen handbreadths in height thus exceeding shoulder height and serving as an
effective kinaesthetic barrier according to R. Feinsteins own previously announced opinion. The
claim is made that this will benefit the ladies by bypassing the need to climb stairs, without
offending sanctuary decorum, since it follows R. Feinsteins prescription to the letter of the law.
Presumably, the expected answer on R. Feinsteins part should be a straightforward ecclesiastic
endorsement. This, however, does not occur. Instead, R. Feinstein directs his interlocutor to
protest against such an arrangement, on the grounds that R. Feinsteins own kinaesthetic barrier
theory represents a sevara a logical assumption, which may not actually be as effective in
fulfilling Levitivus 19:30 as an elevated balcony would be. After all, reasons R. Feinstein, the
Temple itself possessed an actual balcony, which may create a greater aura of sanctuary
reverence than a level-floor kinaesthetic barrier alone. The fact that the congregational executive
would like to switch from a balcony to a level-floor kinaesthetic barrier suggests a lack of
commitment to Jewish values which is worthy of pastoral rebuke, advises R. Feinstein. However,
he concludes, the kinaesthetic barrier theory sevara is powerful enough to satisfy the strict letter
of the law, such that if the synagogue executives will refuse to heed the rebuke, the
congregational rabbi can co-operate and need not resign his post.
R. Schwarz remonstrates that R. Feinsteins casting of doubt upon the validity of his own
kinaesthetic barrier theory should vapourize R. Feinsteins confidence in relying on a
kinaesthetic barrier altogether, seeing as R. Feinstein has already insisted that the synagogue
partition represents a mitzvah de-Oraita [-as described in Section A above], and all doubts
regarding a mitzvah de-Oraita must be adjudicated to the side of stringency. Moreover, objects
R. Schwarz, R. Feinsteins censure of the righteous congregation in question appears surprising.
Why should the congregation be accused of insufficient commitment to Jewish values just
because it wishes to render the synagogue more user-friendly toward ladies, in a manner which
implements R. Feinsteins own previously announced ruling? Is there not an obligation which
devolves upon R. Feinstein to judge his fellow Jew favourably?117
In deciphering R. Feinsteins exceptional responsum, this writer would like to
hypothesize that perhaps R. Feinstein is implicitly formulating the train of thought which
not light candles, but obviously without a blessing. The issues, as Ive tried to explain, are: 1) is a domicile a
necessary requirement? 2) Ohel Zaruk 3) The absence of compartments in airplanes and for that matter in U.S.
trains.
Dictated to Kaaron Saphir by Rabbi J. David Bleich.
117

This peculiarity is also noted by Dr. Norma Baumel Joseph in her Mechitzah: Halakhic Decisions and Political
Consequences, on p. 127 of Daughters of the King: Women and the Synagogue (edited by Susan Grossman and
Rivka Haut, Jewish Publication Society, 1992).

98

underlies the present essay. In other words, perhaps R. Feinstein recognizes the gemara in
Sukkah 51b-52a to be susceptible to three equally legitimate interpretations giving rise to the
synagogue obligation to possess either a geographic or a kinaesthetic or a visual barrier and
that each avenue represents a genuine safek [-as per the conclusion of Section C above].118 As
such, perhaps R. Feinstein was willing to rely on a kinaesthetic barrier in his other responsa not
because this is definitely the correct interpretation of the gemara in Sukkah, but because it
creates a sfek sfeka le-kula [-as per the conclusion of Section E above].119 And since, as further
discussed in Section E above, there is some question as to whether halakhic authorities may
synthesize a novel sfek sfeka le-kula altogether in the contemporary era, R. Feinstein preferred
that a congregation which already possessed a bona fide balcony should eschew a novel sfek
sfeka le-kula. Nevertheless, the final upshot for R. Feinstein is that the sfek sfeka le-kula will
achieve a successful fulfillment of Leviticus 19:30 according to the letter of the law.120
118

Noteworthy in this regard is that R. Feinstein subsequently granted a letter of approbation to R. Henkins first
volume of Shut Bnei Vanim (published at the beginning of that volume and dated 24 Sivan, 5740). In that letter, R.
Feinstein professes that he was unable to survey the entirety of the book, but that he sampled some of its contents,
and that he possesses full confidence that the book is eminently worthy of publication. Seeing as the very first
responsum of R. Henkins book outlines the geographic barrier theory, this student would speculate that it is
hypothetically possible that R. Feinstein read this responsum. Although the letter of approbation for R. Henkins
book was actually written over two decades after R. Feinsteins own responsum in Orach Chaim II, no. 43, the fact
that R. Feinstein expressed (what seems to be) equanimity toward R. Henkins geographic barrier approach (by
granting a glowing letter of approbation to the book without specifically protesting R. Henkins geographic barrier
approach) may retroactively indicate that R. Feinstein considered the geographic barrier theory while totally
unacceptable standing alone (as R. Feinstein emphasizes in Orach Chaim I, no. 39) to represent a viable safek in
constructing a sfek sfeka le-kula vis--vis the mitzvah of Leviticus 19:30, and that it is this analytical reasoning
which explains his ruling in Orach Chaim II, no. 43.
119

An additional aspect of R. Feinsteins sevara is that he is logically balancing two countervailing claims as to
what the legal height of a kinaesthetic barrier actually is; see supra, note 42. Furthermore, because the kinaesthetic
barrier theory is predicated on sevara, accessible doors must be avoided, as per the first paragraph of Section M
above. Thus, Iggerot Mosheh, Orach Chaim II, no. 43 has actually rendered a valuable insight for the parameters of
a synagogue partition.
120

It is also the case that in several of his other responsa, R. Feinstein encourages synagogues to install a visual
barrier as a synagogue partition, as an extra measure of optional piety.
Specifically, in Orach Chaim I, no. 39 (s.v. ve-lakhen be-mechitzah gevohah), R. Feinstein opines those
who are stringent to raise the partition until people are invisible, even their heads, may a blessing devolve upon
them. In Orach Chaim I, no. 40 (final paragraph), R. Feinstein states but for sure it is worthy for baalei nefesh
(pious individuals) to be stringent where possible to make the partition above their heads, and even if they are
already above [on a balcony], so that they should be invisible. In Orach Chaim I, no. 42 (first paragraph), R.
Feinstein avers it is definitely worthy, if possible, [and] it is good to make the partition high so that the people are
invisible. In Orach Chaim III, no. 23 (final paragraph), R. Feinstein posits but it is worthy to be stringent to raise
the partition until even their heads will be invisible. There is also a glimmer of this reflected in Orach Chaim IV,
no. 30, where R. Feinstein remarks for sure there is an advantage in these matters to distance [the two sanctuaries
within the synagogue] to the greatest degree possible. However, it is clear that, in all of these responsa, R. Feinstein
means that such stringency is only a voluntary and optional measure of piety. Accordingly, it seems obvious that
according to R. Feinsteins rationale every single member of the congregation possesses a veto power over such
stringency, since no stakeholder in a congregation can ever be compelled to adhere to an elective act of piety which
transcends the normative Halakhah. [I am grateful to Joseph Kaplan and Mori ve-Rabbi R. Lawrence Kaplan for
bringing this valuable insight to my attention.]
Thus, the responsum presently being discussed in the text of this section (i.e. Orach Chaim II, no. 43) is
unique and extraordinary among all of R. Feinsteins responsa, since it is the only case where R. Feinstein demands
that one actually protest against a congregation which refuses to maintain a visual barrier as its synagogue partition.
For this reason, an endeavour is being rendered in the text of this section to hypothesize why this should be.

99

As for R. Schwarz concern that the congregation under investigation be judged

favourably, this writer would hypothesize that perhaps a sympathetic oral statement by R.
Feinstein accompanied the writing of that responsum. In other words, R. Feinstein may have
been indicating his idealistic preference for avoiding a sfek sfeka le-kula whenever possible,
while communicating his ultimate approval in a friendly spirit. Support for this speculation arises
from a subsequent responsum, Iggerot Mosheh, Orach Chaim IV, no. 91, sec. 6, in which R.
Feinstein recommends that an Orthodox synagogue which lacks a proper partition only be
chastised to repent if there is at least a possibility that the congregation will heed the admonition.
Presumably, if R. Feinstein advocated so gentle an approach toward a congregation that lacked a
proper partition altogether, then how much more so can we surmise that he may have employed a
congenial approach toward a congregation which possessed a proper partition in principle.121 122
Following R. Schwarz ascent to the Heavenly Academy in 5768 (and obviously well
after R. Feinsteins ascent to the Heavenly Academy in 5746), a new posthumous volume of
Iggerot Mosheh was published in 5771. It contains a responsum canonized as Orach Chaim VI,
no. 10, originally written in 5710, and addressing a fact pattern remarkably similar to that Iggerot
Mosheh, Orach Chaim II, no. 43 [as the publishers of this posthumous volume of Iggerot
Mosheh themselves observe in an accompanying editorial gloss].123 R. Feinstein responds to R.
Israel Benjamin Brilliant of Louisville, Kentucky, who in turn is faced with the dilemma that
the ladies in his synagogue refuse to ascend to the ladies balcony in the sanctuary, and would
prefer to attend a heterodox synagogue instead. Under such circumstances, writes R. Feinstein,
one can permit in a case of great need (tzorekh gadol) for the ladies to sit below [in the
Orthodox synagogue, on the same floor-level as the gentlemen], with the separation of a partition
between the gentlemen and ladies. The fact that R. Feinstein limits his dispensation to tzorekh
gadol apparently confirms this students novel hypothesis (in elucidating Iggerot Mosheh, Orach

121

Alternatively, perhaps R. Feinstein retracted his previous rebuke, precisely in deference to R. Schwarz concerns.
It is true that R. Moshe David Tendler reports (as referenced supra, note 25) that R. Feinstein orally verified that no
ruling in Iggerot Mosheh was ever retracted. However, a slight modification of diplomatic posture on R. Feinsteins
part need not necessarily be construed as a bona fide retraction, particularly since several other cases have been
discovered where R. Feinstein similarly modifies a position within the Iggerot Mosheh (as discussed supra, notes 25
and 75). [I am grateful to Dr. David Ronis for bringing this valuable point to my attention.]
122

A completely different approach to Iggerot Mosheh, Orach Chaim II, no. 43, is suggested by Dr. Norma Baumel
Joseph on pp. 301 and 404 of Women of the Wall: Claiming Sacred Ground at Judaisms Holy Site (edited by Phylis
Chesler and Rivka Haut, Jewish Lights Publishing, 2003). Dr. Joseph observes that the responsum is addressed to
Baruch Litvin, author of The Sanctity of the Synagogue (referenced supra, note 10). Hence, hypothesizes Dr. Joseph,
in recognition of the distinguished recipient of his responsum, R. Feinstein as a matter of policy on this one ad hoc
occasion advocated a stricter standard than is the normative Halakhah. [In effect, then, Dr. Joseph is inferring that
R. Feinstein adopted R. Barons halakhah ve-ein morin ken approach (cited supra, note 31) on this one occasion
only, in light of the august standing of his interlocutor.]
Ultimately, whether one accepts the hypothesis advanced by this writer, or alternatively that which is
advanced by Dr. Joseph, the practical outcome appears identical for all future cases. Either way, halakhah lemaaseh, the conclusions of all the above sections of this essay stand firm. The only difference is academic (in terms
of the lomdut) of what R. Feinstein was communicating to Baruch Litvin: whether R. Feinstein, in Orach Chaim
II, no. 43, was implicitly acknowledging the correctness of this students sfek sfeka construction approach (-this
students hypothesis); or whether R. Feinstein, in Orach Chaim II, no. 43, was adopting R. Barons halakhah ve-ein
morin ken approach on a one-time-exclusive basis (-Dr. Josephs hypothesis).
123

I am grateful to Reb Robert Birnbaum, Reb Marvin Small and R. Baruch Solnica for bringing this valuable
insight to my attention.

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Chaim II, no. 43) that R. Feinstein kinaesthetic barrier theory was constructed on the basis of a
sfek sfeka le-kula, which R. Feinstein himself personally preferred to avoid whenever possible.124
CONCLUSION
The subject of a synagogue partition is shrouded in the mystery of insoluble sfekot
described by this essay. Since the Torah is not assigned to ministering angels (as per the gemara
in Berakhot 25b), there is no choice but to manage these sfekot as best as one humanly can, given
the rules of sfekot that have been described by the Oral Torah. Hopefully, this essay has
successfully fulfilled the task.
In conclusion, then, assuming the foregoing analysis of sfekot-management is accepted, a
synagogue should not rely on a ten-handbreadth high partition, due to a safek issur de-Oraita
generated by the intractable dispute among the poskim described in this essay. To be sure, a
number of authorities have indeed countenanced reliance upon a ten-handbreadth partition, and
with good reason. Prior to the publication of this essay, any congregation which would have
followed that pesak halakhah would have been entirely justified in so behaving, just like the
townspeople of Rabbi Eliezer in Shabbat 130a. Those individuals were wholly righteous and
fully deserving of divine blessing. Nevertheless, if one agrees with this essays demonstration
that the question of a synagogue partition constitutes an unresolved dispute regarding a mitzvah
de-Oraita, it seems to this writer that the congregations that have previously relied upon a tenhandbreadth high partition would be well-advised to henceforth modify their practice.
Indeed, this essay has presented the case that a synagogue must possess at least an
eighteen-handbreadth high partition (which may even be reduced to a height of sixty or even
perhaps fifty-eight inches, assuming that the partition always exceeds the shoulder height of the
ladies present in the synagogue125). But even so, under no circumstances may there be a break
that exceeds three inches [-either inside the partition framework or between the partition and the
walls of the sanctuary], and even smaller breaks should be eschewed by a spiritually elevated
congregation. Moreover, there cannot even be a gap [which exceeds three by three inches] within
three handbreadths of the ground. Moreover, even if the congregation is willing to tolerate gaps
[of three inches by three inches or less], there cannot be a lattice network of such gaps. Rather,
the gaps which can at most individually measure three by three inches each must be
positioned three or more handbreadths apart. [The only exception to this latest stringency
occurs within the bottom three handbreadths of the ground.] Furthermore, the mechitzah cannot
be synthesized out of cloth or canvass. Moreover, the partition must not contain a door that can
be opened at will, and must be constructed such that it is impervious to easy disassembly. For
this reason, the partition may not be assembled on the Sabbath.

124

Since this responsum was not addressed to Baruch Litvin, it apparently confirms the hypothesis of this student, as
distinct from the hypothesis of Dr. Joseph (-presented supra, note 122). However, in fairness to Dr. Joseph, given
the fact that this volume of Iggerot Mosheh was only published posthumously, one might question whether any
definitive conclusions can be reached on its basis alone, given the epistemological considerations raised supra, note
21. [Those epistemological considerations were raised regarding the posthumous volume of Iggerot Mosheh
published in 5756, but it stands to reason (as an a fortiori argument) that they apply to the posthumous volume of
Iggerot Mosheh published in 5771.] Accordingly, Dr. Josephs hypothesis in elucidating Iggerot Mosheh, Orach
Chaim II, no. 43 remains possible.
125

See supra, note 34.

101

It may also be noted that, as per the final two paragraphs of Section E above, if there are
one or two unusually tall ladies whose shoulder height exceeds the kinaesthetic barrier partition,
synagogue prayer is still possible, thanks to a sfek sfeka le-kula.126
Alternatively, if the synagogue partition possesses a gap within three handbreadths of the
ground, it must be a visual barrier [i.e. taller than the tallest worshipper present], as per Section I.
As a distinct alternative, if the synagogue partition is synthesized out of cloth or canvass,
it must be a visual barrier [i.e. taller than the tallest person present]. Under such conditions, the
mechitzah must be securely anchored at all its edges along all its sides, such that the only
swaying that occurs is of the excess material in the middle of the partition [but the edges remain
completely opaque.] Moreover, the mechitzah will be disqualified if it is capable of swaying
three handbreadths in the wind (and, according to many opinions, even if it would sway less).
Moreover, under such conditions, there cannot be any gap at the foot of the barrier, as per the
concluding three paragraphs of Section K.
As another distinct alternative, if the synagogue partition possesses an accessible door, or
is susceptible to easy disassembly, or does not extend from end to end, then it must be a visual
barrier (with the worshippers assembled such that the ladies are invisible during the prayer
services), as per Section L above. Such a visual barrier, when fabricated such that it is easily
disassembled, may be permissibly assembled on the Sabbath. When constructing such a visual
barrier, it is appropriate that it be one through which the ladies can see the gentlemens section,
such as via a one-way-glass.127
When a partition possesses the normal height of a kinaesthetic barrier (i.e. it is
universally taller in principle than the shoulder height of at least one of the two populations on
either side of the partition), but the floor space of one of the two synagogue sections is elevated
vis--vis the other, such that the partition is no longer topographically taller than the shoulder
height of either of the populations on either side of the partition, the arrangement is unfavourable
and must be rectified by raising the height of the partition so that it topographically exceeds the
shoulder height of those who are assembled on the ground. Until then, tefillah be-tzibbur cannot
be orchestrated, because of a sfek sfeka le-chumra. Even when the partition topographically
exceeds the shoulder height of those who are assembled on the ground, there must independently
be at least ten handbreadths of height of wall relative to the raised synagogue floor section,
thanks to the mitzvah of a maakeh .
When a synagogue employs a balcony whose ladies section is visible from the
gentlemens section, then it certainly enjoys the status of both a geographic barrier as well as a
kinaesthetic barrier, such that it is assuredly justified at the very least on the basis of a sfek sfeka
le-kula. Whether or not it also constitutes a visual barrier (such that it is not even necessary to
invoke a sfek sfeka le-kula) is subject to a dispute among the poskim.128 In any event, it seems to
this writer that if such a sanctuary also features an accessible staircase which leads from the
gentlemens section to the visible gallery (-the staircase being located within the synagogue
126

Additionally, as established supra, note 70, in the rare instance that a lady must be present within the gentlemens
section for the sake of a mitzvah which, in practice, seems to be limited to instances where the lady is a healthcare
professional responding to a lifesaving medical emergency in the gentlemens section one could justify the
continuation of tefillah be-tzibbur with a sfek sfeka le-kula. [Regarding the converse situation of a gentleman
healthcare professional responding to a lifesaving medical emergency in the ladies section, see there (note 69) as to
why this is a complicated problem beyond the scope of the present essay.]
127

See supra, note 36.

128

See supra, notes 35 and 40.

102

itself), then the original sfek sfeka le-kula is neutralized, thereby disqualifying the partition.129
As explained in Section N of this essay, it seems clear to this author that halakhah lemaaseh these norms apply when the congregation prays inside any building be it a
synagogue or otherwise, and even if the building is a completely secular one being employed for
prayer on an ad hoc basis, such as might typically occur in an airport lounge, at a wedding hall or
at a house of mourning. By contradistinction, when a congregation prays outdoors, the
requirement for a synagogue partition is replaced by that of a 240 cm horizontal buffering space
zone, presumably in such a manner that one envisages a virtual rectangle encompassing all the
gentlemen participating in the outdoor prayers, and from the edges of that rectangle one
implements the buffering zone in every direction, beyond which the ladies are stationed. [The
definition of gentleman participants is the population of gentlemen who are both capable of
hearing the shaliach tzibbur and of seeing one another in an unbroken chain.] No wall or barrier
of any sort is required under such circumstances.
While implementing these conclusions into the synagogue architecture, it is imperative
that one internalize the remarks of R. Joseph Saul Nathanson in his Shut Shoel Umeshiv
Kamma II, no. 22, which are cited approvingly by R. Ovadiah Yosef in his Shut Yabia Omer
X, Orach Chaim no. 15. R. Nathanson was asked whether one may aggrandize the area of the
ladies section of the synagogue at the expense of the area of the gentlemens section of the
synagogue. The author responds affirmatively, declaring it is a great mitzvah, and citing the
gemara in Sotah 11b to the effect that in the merit of the righteous ladies [of the Jewish People]
were our ancestors redeemed, and that it was precisely the ladies donations to the Tabernacle
which the Torah cherishes. In other words, R. Nathanson is acknowledging that the real spiritual
powerhouse of Jewry is the House of Jacob. It is the ladies who are the champions of prayer, and
they must be given first priority in assigning distinguished synagogue seating.130 The significant

129

See supra, note 106.

130

Admittedly, R. Nathansons ruling (which is upheld by R. Yosef) is contested by Mori ve-Rabbi R. Efraim
Greenblatt in the latters Shut Rivevot Efrayim VI, no. 67. R. Greenblatt prohibits expanding the ladies section at
the expense of the gentlemens section. [The same position is espoused by R. Binyamin Aryeh Hakohen Weiss in
his Shut Even Yekarah III, no. 166.] However, this does not seemingly affect the substance of the thesis at hand,
because R. Greenblatt opposes R. Nathanson on purely technical grounds, but does not dispute his essential thematic
point, viz., the superior righteousness of the ladies of Israel. [And see also the newly published manuscript of Shut
Rabbi Akiva Eger ha-Chadash IV, Orach Chaim no. 13, sec. 5, where R. Akiva Eger authorizes transformation of a
gentlemens section into a ladies section.]
Cf., however, Shut Ha-Elef Lekha Shelomoh I, no. 76, where R. Shlomo Kluger appears to express a
diametrically opposite sentiment in the context of one argument buried within a list of six arguments. [I am grateful
to R. Dov Linzer for bringing this valuable source to my attention.] Namely, asked whether the gentlemens
sanctuary can be converted into the ladies sanctuary, R. Kluger ostensibly prohibits this on a list of six grounds, all
of which (he claims) endow the gentlemens section with superior sanctity to the ladies section, as follows:
(a)
(b)
(c)
(d)
(e)

Gentlemen form a quorum for purposes of reciting kedushah and barkhu, whereas ladies do not.
Ladies are exempt from some of the commandments in which gentlemen are obligated.
Ladies usually do not attend synagogue for the arvit prayer.
Gentlemen receive an aliyah to the Torah, whereas ladies do not.
The mishnah in Kelim 1:8 identifies the Israelite Courtyard (i.e. the internal courtyard) as possessing
superior sanctity to the Ladies Courtyard (i.e. the outer courtyard). [R. Kluger apparently assumes that
these identities are transposed upon the gentlemens and ladies section of the synagogue.]
(f) The gemara in Taanit 21b derives from the Revelation at Mount Sinai that (le-havdil) the sanctity of
any given area flows from the human being who visits the area. Accordingly, claims R. Kluger (-in a

103

contrafactual manner, as will presently be demonstrated), since gentlemen recite the blessing she-lo
asani ishah every morning, the gentlemens area enjoys superior sanctity.
In counterresponse to R. Kluger, it must be emphasized that the overwhelming consensus of poskim rejects
his sixth argument (with all due reverence manifest before the extraordinary luminary R. Kluger) as a gratuitous
insult toward ladies that has no basis whatsoever in Halakhah (and actually represents a violation of Halakhah,
which forbids insulting any human being, as per the gemara in Bava Metzia 58b). The blessing she-lo asani
ishah in no way reflects any inferiority on the part of the sanctity of the ladies (as R. Moshe Feinstein emphasizes
in Iggerot Mosheh, Orach Chaim IV, no. 49, penultimate paragraph). Rather, as explained by R. Yehudah Herzl
Henkin in his Shut Bnei Vanim IV, no. 1 (based on the Rishonim to Menachot 43b), the she-lo asani ishah
blessing refers either to (a) the fact that gentlemen are thankful to be obligated in observing all time-bound positive
commandments, even those from which ladies are exempted (-Rashis second explanation to Menachot 43b,
according to R. Henkin the one adopted by Beit Yosef to Tur Orach Chaim 46); or to (b) the fact that the husband
does not possess as many marital responsibilities to his wife according to Torah law as a lady reciprocally possesses
toward her husband, such that a wife appears to be somewhat acquired by her husband (-Rashis first explanation
to Menachot 43b); or to (c) the fact that separation between ladies and gentlemen is required (-Rabbeinu Manoach,
Hilkhot Tefillah ch. 7). [Presumably, the third interpretation (viz. that of Rabbeinu Manoach), refers to mandatory
separation in the synagogue, in light of the sources to this effect cited supra, note 1.] According to any of these three
interpretations, in no way is inferior sanctity being attributed to ladies. Quite the contrary, if we are to derive any
lessons regarding the ladies sanctuary from the Revelation on Mount Sinai (as R. Kluger indicates we should), it is
the superiority of the ladies sanctuary, since the ladies were addressed first at the Revelation, as per Rashi to
Exodus 19:3 (-and see infra, note 131, where this case is explicitly articulated by R. Zalman Sorotzkin). [See also R.
Aryeh Frimers related article at <http://torahmusings.com/2012/01/she-lo-asani-isha-revisited-once-again/>]
Indeed, while R. Kluger was a great posek, his words must on rare occasion (following the canons of Oral Torah)
be rectified, as illustrated by R. Moshe Feinsteins rejoinder to R. Kluger in Iggerot Mosheh, Yoreh Deah II, no.
174, sec. 3, second paragraph (regarding an entirely separate halakhic matter where R. Kluger likewise expressed a
contrafactual argument): It is obvious with the forgiveness of these geniuses that it is a complete mistake, and may
their Master forgive them. [And see Contemporary Halakhic Problems VI, pp. 172-175, which upholds R.
Feinsteins rejoinder to R. Kluger.] It seems clear to this student that the exact same rejoinder applies to the sixth
consideration itemized in R. Klugers list above. [The other five considerations raised by R. Kluger, by
contradistinction, are reasonable (-although number five is itself debatable, as noted in the bracketed comment, and
as will presently be elaborated), and reasonable poskim can and do disagree over whether they generate a
prohibition to convert the gentlemens sanctuary into the ladies sanctuary.] See also Iggerot Mosheh, Yoreh De ah
III, no. 88, cited in the final paragraph of Section H of this essay (as well as supra, note 105), from which it emerges
that the greatest honour that can be granted to R. Kluger is to diamond-polish his responsa by rectifying the rare
mistakes in his responsa.
N.B. Regarding R. Klugers fifth argument, it is highly debatable whether the identities of the Ladies
Courtyard (i.e. the external courtyard) and Israelite Courtyard (i.e. the internal courtyard) can be transposed onto the
ladies and gentlemens areas of the synagogue. Prior to R. Kluger, no halakhic authority ever suggested that this is
the Temple-related source for the synagogue partition. Rather, the Temple-related source is the balcony constructed
within the Ladies Courtyard itself (as per the gemara in Sukkah 51b-52a), as well as the fact that ladies cannot
enter the Israelite courtyard while gentlemen are also there (as per the gemara in Kiddushin 52b, elucidated in
Section B above). But the difference of sanctity (bespoken by the mishnah in Kelim 1:8) between the Israelite
Courtyard and the Ladies Courtyard appears totally unrelated to the obligation of separation between ladies and
gentlemen in the Temple. If so, even R. Klugers fifth argument is specious.
On the other hand, in defense of R. Klugers fifth argument, perhaps he meant to claim that the fact that the
bimah is typically situated in the gentlemens sanctuary with the bimah corresponding to the altar as per the
analysis of Shut Chatam Sofer, Orach Chaim no. 28 ipso facto correlates the gentlemens section of the
syanagogue to the sanctity of the Israelite Courtyard (which possessed the altar of the olah offerings), whereas the
fact that the bimah is typically not accessible from the ladies sanctuary ipso facro correlates the ladies section of
the synagogue to the Ladies Courtyard (which did not posses any altar). [Actually, Chatam Sofer compares the
bimah to both the altar of the olah offerings (located in the Israelite courtyard) as well as the altar of the incense
(located within the Heikhal). The latter comparison would then presumably strengthen R. Klugers fifth argument,
since the Heikhal is even holier than even the Israelite sanctuary.] As for whether the Halakhah requires that the
bimah be only accessible from the gentlemens sanctuary, or whether it can be transposable between both the ladies
and gentlemens sanctuaries, see Appendix C of this essay.

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bifurcation of the sanctuary that is required by virtue of Leviticus 19:30 coexists simultaneously
and harmoniously with the recognition that the ladies are the principal worshippers who are to be
honoured in the House of Ha-Kadosh Barukh Hu.
Moreover, the gemara in Niddah 45b expounds upon Genesis 2:22 to establish that ladies
are endowed with superior understanding. Sarahs prophecy was superior to Abrahams, as per
Rashi to Genesis 21:12. It is precisely the righteous ladies of Israel who possessed musical
instruments at the song of the sea, as per Rashi to Exodus 15:20. And it is precisely the righteous
ladies of Israel who are addressed first at Mount Sinai, as per Rashi to Exodus 19:3.131 It comes
as little surprise, then, that the major laws of amidah are derived from a righteous lady (viz. the
biblical Chanah), as per the gemara in Berakhot 31a. Indeed, the entire source for the halakhah
that tefillah be-tzibbur requires ten gentlemen is the spy episode, as explained by the gemara in
Megillah 23a. That very episode illustrates the superior righteousness of the ladies of Israel,
because the ladies sanctified the Name of Heaven by reacting correctly to the spies report, as
Rashi comments regarding the children of Tzelofchad in Numbers 26:64.132 Indeed, the Oral
Torah recognizes that my daughters are superior to my sons (Bava Batra 141a) and that
greater is the promise that the Ha-Kadosh Barukh Hu has guaranteed to the ladies than to the
gentlemen (Berakhot 17a). Hopefully, then, the gentlemen will learn a lesson from the
praiseworthy ladies of Israel in how to genuinely fulfill the mitzvah of tefillah.133
This may also explain the remarks of R. Jacob Etlinger in his Arukh la-Ner commentary
upon Rashi to Sukkah 51b (s.v. chalakah haitah). The Arukh la-Ner inquires why the external
courtyard of the Temple is known in rabbinic parlance as the ezrat nashim, when in fact ladies
are perfectly authorized to enter the inner courtyard of the Temple just as well, as established by
Tosafot to Kiddushin 52b [-and further discussed in Section B of this essay]. The Arukh la-Ner
answers that the outer courtyard is termed the ezrat nashim because of the gallery that was

131

Indeed, R. Zalman Sorotzkin, Shut Moznayim la-Mishpat no. 42, explicitly rules based upon this consideration
[as well as the fact that Abraham established Sarahs tent before his own, as per Rashi in Genesis 12:8] that a
community must allocate priority of resources to the ladies section of the synagogue over the gentlemens section.
132

Indeed, to that effect, Mori ve-Rabbi R. Joshua Zvi Shmidman in a public address delivered on the last day of
Passover 5765 has pointed to the large nun letter written in the Torah scroll regarding the children of Tzelofchad
(Numbers 27:5), and has homiletically explained that it is precisely the righteous ladies of Israel whose merit
rescues the Jewish People from downfall [-apropos the gemara in Berakhot 4b regarding the missing nun-verse in
the otherwise alphabeticized Psalm 145.]

133

This truism is compatible with the remarks of Tosafot to Pesachim 4b, s.v. heimnuhu rabbanan be-de-rabbanan
who cite the Jerusalem Talmud to the effect that ladies exhibit a disinclined attitude (atzlaniyot) toward a specific
mitzvah observance. A careful examination of Tosafot (and the Jerusalem Talmud) in context reveals that the
following halakhically precise statement is actually being communicated: Hypothetically, were the mitzvah of
bedikat chametz to be de-Oraita in force, then ladies being the righteous homemakers and being faced with the
potentially emotionally overwhelming logistical obligation that a thorough pre-Pesach cleaning of the home entails
would exhibit a disinclined attitude toward bedikat chametz, and could therefore not serve a witnesses to testify
that a home has been searched for chametz. However, since, in reality, bedikat chametz is de-rabbanan in force
(seeing as the Torah interdictions against possessing chametz on Pesach can be easily addressed before Pesach
through bitul chametz alone), ladies are not disinclined toward bedikat chametz (i.e. they are not atzlaniyot), and
quite the contrary ladies are praiseworthy in their alacritous observance of this mitzvah (i.e. they are zerizot),
enabling them to serve as valid witnesses to testify that a home has been searched for chametz. Thus, Tosafot and the
Jerusalem Talmud are actually upholding the honour of the righteous ladies of Israel. I am grateful to David Amsel,
Dr. Bluma Brenner and Chaim Goldberg for bringing this valuable insight to my attention.

105

constructed therein for the ladies participating in the Rejoicing of the Water Drawing.134 It seems
to this writer that the meaning of the Arukh la-Ners comments is that the sacred service of the
righteous ladies deserves overriding recognition, and so the courtyard is named as a token of
appreciation to the ladies, paying homage to their spiritual leadership of Jewry. Tzadkah
mimeni (Genesis 38:26) she (the lady) is more righteous than I (the gentleman) is the ethical
and moral clarion call of our holy Torah.
To that effect, one may metaphorically compare the matter to a king who surveys his
army, as its various divisions (e.g. the marines, navy, air force, etc.) proudly parade before him
in separate sections. To the king, each soldier is most precious, and each soldier is requested to
stay with her/his kind, thus enhancing the organizational and visual magnificence of the military
display. By analogy, the Jewish People is the holy legion of the King of kings, as per Exodus
12:41. Each soldier is precious to the King of kings, and indeed each soldier must realize that for
her/his sake the entire universe was created, as per the mishnah in Sanhedrin 37a. And each
soldier is requested by the King of kings to enhance the perceived Majesty of the King by
remaining in the Sanctuary with her/his own division, separated from the other division with a
formidable partition. The elite division of the King of kings army is the ladies division, and
should be saluted accordingly.135
It is also worthwhile to internalize the gemara in Bava Batra 58a, which discusses the
identity of the all-time aesthetics contest winner. All people compared to Sarah our matriarch are
like monkeys compared to a human being, declares the gemara. But Sarah herself compared to
Eve is, in turn, like a monkey compared to a human being. And Eve herself compared to Adam
is, in turn, like a monkey compared to a human being. And, finally, the clinching comparison
presented by the gemara is that even Adam himself compared to the Shekhinah is like a monkey
compared to a human being. [Adam bifnei Shekhinah ke-kof bifnei adam.] In other words, even
the all-time winner of the pulchritude contest of human civilization [-Adam-] is nothing
compared to the dazzling beauty of the Shekhinah. Experiencing a revelation of the Shekhinah is
the most overwhelming and wonderful manifestation of beauty that can be endured. And
Deuteronomy 23:15 declares that the Shekhinah visits the Jewish People when the Jewish People
conducts itself with sanctity. Thus, it fortuitously emerges as a refreshing conclusion that the
implementation of the proper specifications of a partition in the synagogue will surely lead to a
manifestation in its midst of the greatest beauty the sparkling beauty of the Shekhinah.

134

Cf. the remark of the Maharam of Rothenburg as quoted by his disciple the Tashbetz Katan (cited supra, note 1),
who employs the term ezrat nashim to refer to the ladies gallery itself that was constructed in the Temple.

135

Similarly, the Biur ha-Gra to Shulchan Arukh Orach Chaim 88:1 indicates that value of laasot nachat ruach
le-nashim presented by the gemara in Chagigah 16b (which is concerned with providing spiritual bliss to the
righteous ladies of Israel by inviting them to actively lead in the Temple services [within the parameters assigned to
ladies by the Oral Torah]) means on a practical level that synagogues should be welcoming to ladies.
Comparable sentiments are expressed by R. Norman Lamm in his Separate Pews in the Synagogue [published in
Tradition 1:2 (Spring 1959) as well as in The Sanctity of the Synagogue]; R. Menachel Mendel Kasher in his Divrei
Menachem I, no. 35; R. Moshe Feinstein in his Iggerot Mosheh, Orach Chaim IV, no. 49; R. Sholom Klass in his
Responsa of Modern Judaism (The Jewish Press, 1992), pp. 434-435; R. Hershel Schachter in his Be-Ikvei ha-Tzon
(Jerusalem, 5757), no. 5; and R. Mordechai Willig in a lecture delivered on November 13, 2010, recorded at
<http://www.yutorah.org/lectures/lecture.cfm/752234/Rabbi_Mordechai_I._Willig/Women_in_Halacha_#1:_Gende
r_Differences>.

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Appendix A
Tosafot in Zevachim 33a as treated by Chazon Ish and Doresh le-Tziyon
As explained in Section A of this essay and elaborated in note 8, the thesis of R. Moshe Feinstein (Iggerot
Mosheh, Orach Chaim I, no. 39) that the construction of the gallery in the Temple was necessitated by virtue of a
mitzvah de-Oraita is ostensibly endangered by Maharsha in his Chiddushei Aggadot to Sukkah 51b. In turn,
Maharshas refutation is, in effect, neutralized by Tosafot to Zevachim 33a. In turn, Tosafots effective defense of R.
Feinstein is in essentially repudiated by Chazon Ish. And in final turn, Chazon Ishs repudiation of Tosafot is in
effect obviated by the Doresh le-Tziyon, thus ultimately vindicating R. Feinsteins thesis.
In order to appreciate the complex chain reaction of Oral Torah give-and-take that is in progress, this
appendix will now recapitulate the relevant Tosafot in Zevachim 33a with the competing treatments of the Chazon
Ish and Doresh le-Tziyon. Such an endeavor must itself be prefaced by a synopsis of the pertinent sugya in
Zevachim.
A. The Gemara in Zevachim
The sugya begins (on 32b) by Ulla saying in the name of Reish Lakish that if a ritually impure individual
stands outside of the Sanctuary but inserts his hand into the airspace of the Sanctuary, the individual is guilty of the
transgression of defiling the Sanctuary. The gemara understands that Reish Lakish presumably means to say that the
individual would receive excision (karet) if he acted deliberately, or a sin-offering if he acted inadvertently.
Accordingly, Reish Lakish is essentially positing that even partial entry of a contaminated individual into the
Sanctuary is treated as bona fide entry (biah be-miktzat shemeih biah).
The gemara (on 33a) proceeds to offer a putative support to Reish Lakish from a beraita discussing the
asham metzora (the guilt offering brought by an individual recovering from the dermatological affliction described
in Leviticus chapters thirteen and fourteen). Usually, announces the beraita, the private owner of a sacrifice
performs semikhah (a leaning of his hands on the head of the living animal) upon the sacrifice immediately before it
is slaughtered. However, there is an exception: the semikhah upon an asham metzora does not immediately precede
its slaughtering. This is because the owner is actually prohibited to enter the Temple inner courtyard, whereas it is
precisely the inner courtyard which is the designated venue for the slaughter of all offerings. Faced with this Catch22 predicament, the owner has no choice but to perform the semikhah outside the Temple inner courtyard, and
with some degree of inevitable delay the animal is subsequently transported by an agent into the inner courtyard
where it is slaughtered. Asks the gemara rhetorically: Could the owner not simply stand just outside the courtyard
gateway (known as the Nikanor gateway) and have his animal stand just inside the Nikanor gateway, whereupon the
owner could nonchalantly insert his hands through the gateway, and perform semikhah on the animal without
defiling the Sanctuary and the same time enabling slaughtering to follow in immediate sequence? Perforce, the fact
that the beraita refuses to consider such an expedient is proof to the thesis of Reish Lakish that biah be-miktzat
shemeih biah.
However, the gemara counters that this is not necessarily so. Perhaps the beraita does not support Reish
Lakish, and partial entry of a contaminated individual into the Sanctuary is actually not regarded as bona fide entry
(biah be-miktzat lo shemeih biah). And the reason the beraita ignores the suggested expedient of the owner
inserting his hands through the Nikanor gateway is because of one of following two possible alternative reasons:
(1) The beraita reflects the opinion of Rabbi Yossi the son of Rabbi Yehudah, who holds that the Nikanor
gateway does not architecturally face the area where an asham metzora may be slaughtered. Although this technical
problem could theoretically be easily overcome by drilling a hole in the courtyard wall to form an aperture
immediately adjacent to the area in which Rabbi Yossi concedes that the asham metzora is slaughtered, and then
having the owner stand outside the courtyard and insert his hands through the novel aperture, drilling a hole is
actually halakhically impossible because I Chronicles 28:19 prohibits tampering with the architecture of the Temple.
(2) The beraita may reflect the opinion of Rabbi Yehudah Hanassi that the Nikanor gateway does, in fact,
face the area where the asham metzora may be slaughtered. Still, the expedient of the owner sticking his hands
through the Nikanor gateway is impossible because the very nature of the mitzvah of semikhah requires not just a
leaning of the hands upon the head of the animal, but that the owners head and majority of his body be physically
present in the courtyard with the animal. Thus, standing outside the courtyard and merely inserting ones hands
through the gateway is not called semikhah.
Having deflected the attempted proof to Reish Lakish, the gemara now inquires that [regardless of whether
or not the halakhah follows Reish Lakish] the beraitas refusal to permit admittance of the owner of the asham

107

metzora into the courtyard seems puzzling. After all, if semikhah on an asham metzora represents a mitzvah deOraita and the rule that semikhah and slaughtering be temporally juxtaposed also represents a mitzvah de-Oraita,
then the Torah in effect grants authorization for the owner to fully enter the courtyard! To this question, the gemara
offers two answers:
(a) In truth, according to Torah law, the owner is indeed allowed to fully enter the courtyard. However, the
Sages decreed that the owner not enter, gezeirah shema yarbeh be-pesiot lest the owner enter further into the
courtyard space than is actually necessary for him to perform semikhah.
(b) The semikhah on an asham metzora is only a rabbinic mitzvah. Therefore, according to Torah law, the
owner cannot enter the courtyard, since according to Torah law semikhah on the animal is totally unnecessary.
Returning the subject of Reish Lakish, the gemara (on 33b) cites Ravina as independently suggesting that
Reish Lakish only meant to prescribe malkut (lashes) for a defiled individual who intentionally inserts his hand into
the airspace of the Sanctuary, but that there is no karet or sin-offering. Thus understood, Reish Lakish actually holds
that biah be-miktzat lo shemeih biah, and there is simply a minor prohibition (punishable by lashes) violated by an
impure individual who partially enters the Sanctuary.
B. Tosafot
Tosafot on 33a (s.v. ve-liavid) are disturbed by solution (1) presented by the gemara recapitulated above,
when seen through the prism of the dichotomy of approaches (a) and (b) offered by ensuing sugya. After all, the
gemara in Sukkah 51b establishes that one may permissibly override the architectural blueprints of the Temple (and
thus bypass I Chronicles 28:19) when a scriptural verse commands a certain course of action. Thus, solution (1)
which posits that the Sages were forbidden to create an aperture in the courtyard wall for the sake of semikhah
because of I Chronicles 29:19 is only satisfactory provided that one accepts approach (b) that semikhah on an
asham metzora is a mere rabbinic ordinance. But if one legitimizes the alternative approach (a) that semikhah on an
asham metzora is actually a mitzvah de-Oraita, why then could the architectural blueprints not be modified? Surely,
a mitzvah de-Oraita of semikhah is equivalent to a scriptural passage, and thus justifies the creation of a novel
aperture in the courtyard wall!
Tosafot answer that although approach (a) indeed assumes that semikhah is a mitzvah de-Oraita, the
immediate reason prompting the need for an architectural renovation is by rabbinic fiat. After all, according to Torah
law the owner of the asham metzora may permissibly fully enter the courtyard. It is only the Sages who barred him
from doing so because of the gezeirah shema yarbeh be-pesiot. Since the gezeirah shema yarbeh be-pesiot is a
mere rabbinic decree, it did not justify modifying the Temple architecture, even though the ultimate grand purpose
of the enterprise would be to facilitate a mitzvah de-Oraita of semikhah on the asham metzora.
This Tosafot thus propels the discovery of R. Feinstein that the decision of the Sages to construct a balcony
for the Rejoicing of the Water Drawing was necessary for a bona fide mitzvah de-Oraita. Had it not been a mitzvah
de-Oraita, a renovation to the Temple architecture could not be justified. And Tosafot also apparently shield R.
Feinstein from being usurped by Maharsha in Sukkah 51b.
C. Chazon Ish
Chazon Ish (Kodashim 8:4) axiomatically challenges Tosafots approach. He argues that if it is indeed the
case that semikhah on an asham metzora constitutes a mitzvah de-Oraita, then this should intrinsically justify
tampering with the Temple architecture, even if the sole motivating factor is the rabbinic decree of gezeirah shema
yarbeh be-pesiot. Were it not for the rabbinic decree, concedes Chazon Ish, then of course the owner could fully
enter the courtyard precincts. But now that the Sages have legislated their decree by which they have prevented the
owner from entering the courtyard, reasons the Chazon Ish, the paramount mitzvah de-Oraita of semikhah is
equivalent to a scriptural passage, and this should ipso facto authorize overriding the Temple architecture, and thus
authorize creating an aperture in the courtyard wall! Why, then, is such an aperture not actually manufactured?
Therefore, Chazon Ish dismisses Tosafots contention, and reinterprets the gemara as follows. According to
approach (a) that the semikhah on an asham metzora is a mitzvah de-Oraita, if one accepts solution (1) [that it is
unnecessary for semikhah to be conducted by the owners head and corporeal majority being present in the same
venue as the animal], then the Talmud possesses an oral tradition to the effect that renovations may not be
effectuated for the purpose of semikhah. But it has nothing to do with I Chronicles 28:19.
Apparently, according to Chazon Ish, the gemara only originally cited I Chronicles 28:19 in solution (1)
when it [silently] surmised that semikhah on an asham metzora constitutes a mitzvah de-rabbanan. Later in the
sugya, when the gemara realized that semikhah on an asham metzora might actually represent a mitzvah de-Oraita

108

[which is, in fact, the underlying tenet of approach (a)], the gemara abandoned invocation of I Chronicles 28:19 and
was [rather fortuitously] suddenly apprised of an oral tradition that renovations to the Temple are never effectuated
for the sake of semikhah on an asham metzora.
Because Chazon Ish dismisses the contention of Tosafot, it emerges that Chazon Ish believes that even for
the sake of a mere rabbinic decree if supported by Scripture one may tamper with the Temple architecture. If
Chazon Ishs novel understanding is correct, then R. Feinsteins support from Tosafot that the renovations described
in Sukkah 51b were necessary for the fulfillment of a mitzvah de-Oraita is suddenly vapourized.
D. Doresh le-Tziyon to the rescue
R. Ezekiel Landau, in his Doresh le-Tziyon compendium of sermons (no. 11, subsection derekh nachash
alei tzur, paragraph that begins with the words ve-omer ani lefi ha-maskana) addresses the very difficulty identified
by Chazon Ish [-well over a century before Chazon Ish was even born]. He explains that Tosafots remarks focus
upon the gemaras original presumption that Reish Lakish espouses the position that biah be-miktzat shemeih biah,
and that Tosafot are assuming that approaches (a) and (b) are offered by the gemara even according to the possibility
that the halakhah may actually follow Reish Lakish [which is indeed compatible with a straightforward survey of the
flow of the sugya].
Accordingly, when the gemara offers approach (a), which must be epistemologically valid even according
to solution (1), the gemara is indeed declaring that I Chronicles 28:19 is the source to prohibit tampering with the
Temple architecture. Although semikhah on an asham metzora represents a mitzvah de-Oraita, there is no logical
reason to drill a hole in the courtyard wall. After all, even for the owner to merely so much as deliberately insert his
hands into the airspace of the courtyard would trigger a karet punishment. What difference does it make, then,
whether the owner will merely insert his hands, or walk in completely? Either way, he is liable to karet! And since
the Torah commands the semikhah, the Torah has obviously granted the owner carte blanche permission to enter the
courtyard. There is no advantage for the owner to request the creation of an aperture in the courtyard wall, and thus
we assume that the Torah never authorized the creation of such an aperture, since that would represent gratuitous
tampering with the Temple architecture, which is contraindicated by I Chronicles 28:19.
However, continues Doresh le-Tziyon, when the gemara subsequently revises its presumption by
introducing the teaching of Ravina, it emerges that Reish Lakish only prescribes a punishment of lashes for one who
inserts his hands into the courtyard. If that is the case, then the Torahs command to perform semikhah upon an
asham metzora is ipso facto an authorization to drill a hole in the courtyard wall for the sake of semikhah. It is
logical that the Torah would prefer the violation of a minor (lashes-bearing) transgression by the owner inserting his
hands through an aperture than the violation of a major (karet-bearing) transgression by the owner fully entering the
courtyard. Accordingly, concludes Doresh le-Tziyon, the fact that the beraita does not recommend the expedient of
drilling a hole proves that Ravina only supports approach (b) and not approach (a). Approach (a), combined with
Ravina, would have led to the conclusion that an aperture should be created. Tosafot never intended to address such
a synthesis.
What emerges from Doresh le-Tziyons treatment of Tosafot is that he champions the veracity of the thesis
of Tosafot that one cannot tamper with the Temple blueprints for the sake of a rabbinic decree, even when there
exists an overarching scriptural mandate in the background. It is only when there is an immediate scriptural demand
that architectural renovations may be effectuated. Thus, R. Feinstein is potentially vindicated.

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Appendix B
Sanctification of the Name of Heaven to fulfill Leviticus 18:3
As explained in Section A of this essay and elaborated in note 11, R. Joseph Ber Soloveitchik ruled that
there is a mitzvah de-Oraita for Jewish ladies and gentlemen to be separated during public prayer (though the
requirement for an intervening partition is rabbinic in nature, in the opinion of R. Soloveitchik). As further discussed
in note 10, R. Mordechai Willig claims in one lecture (albeit imprecisely as subsequently exaplained in note 11)
that R. Soloveitchik wrote to prohibit the congregation of ladies and gentlemen within the same sanctuary even
under force majeure (since the practice is culturally derived from foreign religions). [In another lecture, R. Willig
appears somewhat equivocal on this point.]
The purpose of the following appendix is to explain under what circumstances Leviticus 18:3 the
prohibition which devolves upon Jews forbidding them from culturally emulating the practices of Noahides might
possibly apply even under force majeure.
A. Two classes of prohibition encapsulated by Leviticus 18:3
R. Israel Isserlein in his Teshuvot Terumat ha-Deshen, no. 197; R. Joseph Karo in his Beit Yosef to Tur
Yoreh Deah 178; and R. Moshe Schick in his Teshuvot Maharam Shik, Yoreh Deah no. 165, all rule that pikuach
nefesh (saving a life) overrides Leviticus 18:3. Thus, for instance, a Jew may disguise himself in Noahide clothing in
order to save his life. See Encyclopedia Talmudit XVII, pp. 321-325.
However, Terumat ha-Deshen concludes his responsum by noting that if the emulation of the Noahide
cultural practice suggests actual acceptance of a foreign religion, then it is prohibited for a Jew even if necessary to
save his life. Apparently, then, there exist two classes of Noahide cultural practice prohibited unto Jews: those that
are unrelated to religious worship (such as the manner of Noahide dress), and those that manifest a form of religious
worship. The former class is to be violated for purposes of pikuah nefesh, but the latter class is not.
Thus, we can understand why one would forbid the congregating of ladies and gentlemen during public
prayer even for purposes of pikuach nefesh. Since public prayer involves religious worship, this type of Leviticus
18:3 is prohibited even under force majeure.
B. Potential corroboration by R. Moshe Feinstein
The existence of two classes of prohibition encapsulated by Leviticus 18:3 appears potentially corroborated
by an analysis of R. Moshe Feinsteins approach to the celebration of American Thanksgiving. This subject is itself
a matter of interet which merits investigation.
In Iggerot Mosheh, Even ha-Ezer II, no. 13 (authored in 1963), R. Feinstein is asked whether a Jew may
celebrate a family simchah on a day which Noahides celebrate their Noahide holidays. R. Feinstein writes as
follows:
Regarding the performance of some kind of simchah on the festive day of Noahides which exists because
of their faith,136 if [the Jew does so] because of the intention that it is a day of festivity, it is forbidden by law (assur
mi-dina). And if it is without [such] intention, it is forbidden because of marit ayin. However, a seudat mitzvah
like a circumcision or a firstborn redemption may be performed even on their [i.e. the Noahides] festive days,
because we do not forbid an obligatory meal on account of marit ayin. But a meal for a bar mitzvah should best be
deferred to another day, and even a wedding should le-katchilah be fixed on another day. And as for New Years
Day and Thanksgiving, there it is not forbidden by law (ein leessor mi-dina), but people concerned for their souls
(baalei nefesh) should be stringent.
A careful reading of the responsum with elaboration upon its subtle nuances reveals the following
results. R. Feinstein rules that when Noahides observe a religious holiday, it is forbidden by Torah law (on account
136

In a lecture delivered on Nov. 25, 2009, R. Moshe David Tendler explains that he conversed with R. Feinstein
when this responsum was formulated, and that it refers specifically to Dec. 25. Available at
<http://www.yutorah.org/lectures/lecture.cfm/739402/Rabbi_Moshe_D._Tendler/Daf_13a-13b__Normal_vs_Abnormal_People>.

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of Leviticus 18:3) for a Jew to consciously celebrate the day with a joyous meal.137 If the joyous meal is only
coincidentally held by Jews on the same day as a gentile religious holiday, then R. Feinstein distinguishes between
four kinds of cases:
(a)

If it is a joyous meal for a mitzvah whose time is determined by Torah law (viz. a circumcision
or a firstborn redemption), then the joyous meal should be held [so long as the Jewish
organizers and participants in the mitzvah meal are careful to avoid mentioning that it is a
Noahide religious holiday.] This is because, since everyone realizes that the Jew is partaking
of the joyous meal which the Torah demands on this particular day, any marit ayin that the
Jew could possibly be emulating the Noahide custom has been effectively dispelled.138
Presumably, the same authorization would apply to a Shabbat meal which coincides with (by
contradistinction) a Noahide festival, such as when Dec. 25 occurs on a Friday or on a
Saturday.

(b)

If it is a joyous meal for a mitzvah whose time is strongly encouraged to be as early as possible
according to Torah law, but is not scheduled for a specific day (viz. a wedding)139, then lekathilah it may not be held on the Noahide religious holiday [even as a coincidence without
intending to celebrate the Noahide religious holiday], because of marit ayin. However, once
the wedding was scheduled post facto, one is not halakhically required to incur major hardship
by postponing the wedding [so long as the Jewish organizers and participants in the mitzvah
meal are careful to avoid mentioning that it is a Noahide religious holiday.]

(c)

If it is a joyous meal for a mitzvah which is not explicitly mentioned by the Talmud but which
in theory is associated with a particular day (viz. a bar mitzvah meal)140, then there is a
very strong le-kathilah directive (even more so than the case of a wedding) to prohibit
scheduling the meal for the day of the Noahide religious holiday, because of marit ayin.
However, once the bar mitzvah was scheduled post facto, one is not halakhically required to
incur major hardship by postponing the bar mitzvah [so long as the Jewish organizers and
participants in the mitzvah meal are careful to avoid mentioning that it is a Noahide religious
holiday.]

(d)

If the meal occurs for discretionary reasons,141 it is completely forbidden, even post facto, to
partake of such a meal [even as a coincidence without intending to celebrate the Noahide
religious holiday], because of marit ayin.

Nevertheless, R. Feinsteins subsequent discussion of New Years Day and Thanksgiving raises two
fundamental questions:
137

A joyous meal is presumably defined in this context as the consumption of meat and/or wine, based on the
parameters of a joyous meal (in the context of a Yom Tov or circumcision repast) surveyed in Contemporary
Halakhic Problems III, pp. 246-256; and idem. V, pp. 393-402.
138

This may be compared to the gemara in Kereitot 21b which forbids a Jew to drink a glass of fish blood (lest
onlookers suspect the Jew of drinking animal or avian blood), but permits Jews to drink the same glass of blood
when there are scales floating in the blood, since the existence of the scales effectively demonstrates to all onlookers
that the blood arises from a piscean source.

139

Pursuant to the gemara in Kiddushin 29b, a wedding should occur at the grooms earliest convenience, to
promote his spiritual growth.
140

Although there is no explicit reference to a bar mitzvah meal in the Talmud, Yam Shel Shelomoh to Bava Kamma
87a finds it implicit in the gemara there that on the day that a Jew becomes obligated in observing mitzvot by Torah
law, he should celebrate with a joyous meal.
141

Presumably, the same is true for a meal associated with a mitzvah but where there is no specific reason for the
meal to occur on this particular day (e.g. the meal marking the celebratory completion of a tractate of Talmud).

111

(i)

Why should New Years Day (to which Thanksgiving is equated by R. Feinstein) be treated
differently than other Noahide religious holidays? After all, the Darkei Mosheh discussed in
section B above identifies New Years Day as a Noahide religious holiday. Moreover, R.
Feinstein himself in Iggerot Mosheh, Yoreh Deah III, no. 85 (subsequently authored in
1967) prohibits a Jewish school from granting vacation to its students from Dec. 26-Jan. 1,
on the grounds that these days [even though they exclude Dec. 25] are intrinsically part of the
Noahide holiday, and to grant the students vacation would be emulating a Noahide religious
practice. Why, then, in Even ha-Ezer II, no. 13 should R. Feinstein rule that New Years Day
enjoys any leniency as compared to Dec. 25?

(ii)

In what manner is R. Feinstein ruling that New Years Day and Thanksgiving are more lenient
than other Noahide religious holidays? To be sure, R. Feinstein says ein leessor mi-dina it
is not forbidden by law. But what exactly is it that (in the opinion of R. Feinstein) is not
forbidden by law? And why does R. Feinstein not discuss whether or not there is any problem
of marit ayin on New Years Day and Thanksgiving?

These two questions lead to the conclusion that there is a hidden aspect to R. Feinsteins responsum.
Missing information of sorts must be implicitly read into the responsum in order for it to become coherent.
Accordingly, it seems to these writers that there are three possible paths to interpret R. Feinsteins responsum:
Path 1 (-advanced by R. Michael J. Broyde142): R. Feinstein appreciated that in the centuries that elapsed since the
Darkei Mosheh, New Years Day has became a totally secularized holiday.143 Likewise, although Thanksgiving
has religious roots, it has become a totally secularized holiday.144 Because of this, R. Feinstein rules that ein leessor
mi-dina meaning, that even a joyous meal expressly arranged for the sake of New Years Day or Thanksgiving is
142

In his article Is Thanksgiving Kosher?, available at <http://www.tfdixie.com/special/thanksg.htm>. It is also

reiterated in his subsequent article Valentines Day and Jewish Law , available at
<http://torahmusings.com/2012/02/valentines-day-and-jewish-law/>, responding to a challenge from R. Yair
Hoffman.
143

The secularization of New Years Day can be compared to R. Ovadiah Yosefs ruling in Teshuvot Yabia Omer
III, Yoreh Deah no. 9, which permits a Jew to utilize the civil calendar as an instrument that has become completely
secular and utilitarian in nature, without fear of transgressing Leviticus 18:3. Employment of the civil calendar
(albeit profane) is simply a matter of convenience, because it is an institution whose days change at a time when
most people are sleeping, viz. 12:00 a.m. This prevents confusion in interpersonal agreements. By contradistinction,
the Jewish calendar (albeit sacred) contains the complexity that the day changes when people are awake, and,
moreover, because of the concept of bein ha-shemashot (a concept whose parameters are themselves disputed by
poskim), it is not entirely certain with crystal clear precision as to when the day changes. So, too, R. Feinstein [as
interpreted by R. Broyde] recognized New Years Day to be a day exclusively devoted to celebrating the beginning
of a new secular year, without theological implications.
[In this manner, the civil calendar is methodologically analogous to the arbitrary international dateline that
the nations of the world have capriciously and conveniently decided traverses the middle of the Pacific Ocean.
Although Torah law does not follow the international dateline for purposes of establishing the days of the week or
the dates of the year (see article by R. Moshe Ashen cited supra, note 9), Torah law does not forbid making
reference to the international dateline for secular purposes either.]

144

As noted by R. Sholom Klass in his Responsa of Modern Judaism (The Jewish Press, 1992), pp. 185-188, if
Thanksgiving is deemed to be a completely secularized holiday, a Jew may fully celebrate it, by virtue of Rashi to
Numbers 23:9 who declares that when the nations enjoy worldly prosperity, Jews may permissibly eat, as well. It is
evidently for this reason that R. Broyde (op. cit.) cogently permits a Jew to partake of celebrations of such
undeniably secular holidays as Independence Day or Labour Day. Those red letter days exist for the exclusive
purpose of takkanat benei ha-medinah promoting the welfare of a society that functions under the principles of the
Noahide Code (-which, in turn, is the basis for dina de-malkhuta dina, as per Rema to Shulchan Arukh Choshen
Mishpat 369:11), and so every Jew may participate in good conscience if he/she so chooses. Accordingly, there is no
halakhic problem with an American Jew patriotically celebrating Independence Day, or a Canadian Jew patriotically
celebrating Canada Day, etc.

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completely permissible. R. Feinstein does not address marit ayin because it is a kal va-chomer: if one may arrange a
joyous meal even for the purpose of New Years Day or Thanksgiving, how much more so may one coincidentally
arrange a meal on those days. However, because of the religious roots of New Years Day and Thanksgiving, a
pious individual should refrain from arranging a joyous meal for the sake of New Years Day or Thanksgiving.
It seems to these writers three questions may be respectfully posed regarding the above interpretation: (A)
If R. Feinstein thought that marit ayin neednt be addressed because of a kal vahomer, R. Feinstein should have
written ein leessor afilu mi-dina (instead of ein leessor mi-dina). (B) R. Feinstein never addresses whether a
pious individual need also be stringent about coincidentally arranging a meal on those days. (C) This reading of
Iggerot Mosheh is inconsistent with the aforementioned Yoreh Deah III, no. 85 which seemingly recognizes New
Years Day as a Noahide religious holiday according to the letter of the law. These three questions suggest an
alternate possible interpretation to R. Feinsteins responsum.
Path 2 (-advanced by R. Alfred Cohen145): R. Feinstein appreciated that in the centuries that elapsed since the
Darkei Mosheh, New Years Day and Thanksgiving had both become somewhat secularized holidays, but still
maintained a religious character.
That Thanksgiving had arguably maintained a religious character by the time R. Feinstein authored his
1963 responsum may itself be reflected in the annual Thanksgiving proclamations of United States presidents.146 Up
until and including 1963, every single Thanksgiving proclamation had been religious in nature. Moreover, six of
those Thanksgiving proclamations [including the 1942 proclamation which established Thanksgiving on its current
date] had specifically quoted passages from Psalms.147 This is arguably significant, since R. Feinstein would later
rule in Iggerot Mosheh, Yoreh Deah II, no. 56 (authored in 1970) that even verses of Psalms which are recited by
devotees of a Noahide religion must be assumed to be dedicated to the religion of Noahides. Furthermore, in an
obiter dictum featured in its 1952 decision regarding Zorach v. Clauson, the United States Supreme Court
recognizes Thanksgiving as a religious holiday.148 Thus, by the time R. Feinstein penned his 1963 Thanksgiving
responsum, the executive and judicial branches of the U.S. government were apparently in agreement that
Thanksgiving was a Noahide religious holiday, rendering Leviticus 18:3 potentially relevant.
According to this second approach to R. Feinsteins 1963 responsum, R. Feinsteins words ein leessor midina would mean as a direct continuation of the immediately preceding concept in the responsum that if a Jew
must celebrate a joyous meal that is also seudat mitzvah on either New Years Day or Thanksgiving, then he may
permissibly announce that the event is scheduled to take place for New Years Day or Thanksgiving. This is unlike a
seudat mitzvah on Dec. 25, where it would be forbidden by virtue of Leviticus 18:3 to even so much as announce
that the meal is scheduled for the Noahide religious holiday. Such an announcement would create an umdena demukhah (an obvious assessment) that the Jew is expressly celebrating the Noahide religious holiday. Because New
Years Day and Thanksgiving are somewhat secularized, one may announce the name of the holiday in the course of
scheduling a seudat mitzvah, although pious Jews refrain from doing so. But for all Jews, it is always forbidden on
New Years Day and Thanksgiving (just like Dec. 25) to schedule a purely discretionary joyous meal, because of
marit ayin. And for everyone, it is always forbidden on New Years Day and Thanksgiving (just like Dec. 25) to
arrange a meal for the express purpose of celebrating the holiday, because of Leviticus 18:3. This is remarkably
consistent with R. Feinsteins ruling in Yoreh Deah III, no. 85 that New Years Day be categorized as a Noahide
religious holiday.
However, this alternate approach that the current writers are presenting while resolving all three questions
posed earlier in the context of Path 1 is itself difficult because it is somewhat at variance with the posthumously
published responsa of R. Feinstein, to be described in the coming paragraphs.

145

Oral lecture delivered on Feb. 19, 1987, recorded at

<http://www.yutorah.org/lectures/lecture.cfm/725517/Rabbi_Alfred_Cohen/Observing_Secularreligious_holidays>.
This position is also espoused by R. Yair Hoffman (see supra, note 142).
146

All these speeches are recorded at <http://www.pilgrimhall.org/ThanxProc.htm>.

147

Proclamations of 1866, 1897, 1942, 1949, 1951, and 1961.

148

343 U.S. 306 (1952).

113

Path 3 (-advanced by R. Moshe Feinstein in posthumously published responsa): Further responsa by R.

Feinstein were indeed written on the subject of Thanksgiving, and were published posthumously in the Iggerot
Mosheh: Orach Chaim V, no. 20 (sec. 6), Yoreh Deah IV, no. 11 (sec. 4) and Yoreh Deah IV, no. 12. Remarkably,
in these latest responsa, R. Feinstein presents a novel compromise between the two possible interpretations (Path 1
and Path 2) presented above. On the one hand, like Path 2, R. Feinstein claims that his original Thanksgiving remark
ein leessor mi-dina was only referring to the case of a seudat mitzvah such a bar mitzvah or wedding that
coincides with Thanksgiving. By contradistinction, a discretionary joyous meal (outside the context of a seudat
mitzvah) celebrated for the express purpose of Thanksgiving is forbidden for a Jew, because of Leviticus 18:3.149 On
the other hand, like Path 1, R. Feinstein claims that there is no prohibition against marit ayin if a Jew celebrates a
discretionary meal (even outside of the context of a seudat mitzvah) on the occasion of Thanksgiving.150
To justify this paradoxical compromise, R. Feinstein presents the thesis that there are actually two different
cases of Noahide cultural practice prohibited unto Jews by virtue of Leviticus 18:3, with differential effects on the
law of marit ayin. The first case is where a Noahide cultural practice stems from religious belief, such as the
celebration of Dec. 25. Under such circumstances, marit ayin applies. Thus, Leviticus 18:3 prohibits a Jew from
celebrating a Dec. 25 joyous meal for the sake of Dec. 25, and marit ayin prohibits a Jew from even coincidentally
celebrating a discretionary joyous meal on Dec. 25. The second case is where a Noahide cultural practice does not
stem from religious belief, but is rather an outstanding social phenomenon that defies utilitarian explanation yet is
perpetuated as a matter of cultural chauvinism. Under such circumstances, marit ayin is inapplicable. Partaking of a
Thanksgiving meal falls into the latter category, asserts R. Feinstein. Thus, Leviticus 18:3 forbids a Jew to partake
of a joyous meal on Thanksgiving for the express purpose of Thanksgiving, but it is permissible for a Jew to partake
of a discretionary joyous meal on Thanksgiving when not expressly intended for Thanksgiving.151
And how does R. Feinstein know that Thanksgiving is not a religious holiday? Because, he answers,
Thanksgiving is not mentioned in the books of the Noahide religion, and it was never ordained by the Noahide
clergy. Rather, Thanksgiving can be compared to the secular celebration of remembrance that King Yannai
convened on one particular occasion during the Second Temple era, as recounted by the gemara in Kiddushin 66a.
Still, insists R. Feinstein, the annual practice of Thanksgiving defies rational explanation, and thus is prohibited to
Jews under the rubric of the second case of Noahide cultural practice.
R. Feinstein further adds that he is not absolutely certain that such a second case of Noahide cultural practice
exists altogether, although he is inclined to be stringent (to assume that such a case exists). In any event, continues
R. Feinstein, even if one were to argue that the second case does not exist, it is still forbidden for a Jew to celebrate
Thanksgiving every year, because of the separate prohibition of bal tossif, which includes adding a Jewish holiday to
the calendar.
These writers would respectfully note that the take-home message of R. Feinsteins posthumously published
Thanksgiving responsa (i.e. Path 3) is quite surprising, because it is seemingly inconsistent with R. Feinsteins
original responsum in Even ha-Ezer II, no. 13 which equates New Years Day with Thanksgiving. R. Feinstein has
already stated (Yoreh Deah III, no. 85) that New Years Day is to be treated as a Noahide religious holiday. And
yet, in the posthumously published responsa, R. Feinstein avers that Thanksgiving is a purely secular holiday.
Moreover, these writers would respectfully note that R. Feinsteins proof from Kiddushin 66a is equally surprising.
Rashi to that gemara explains that King Yannais celebration of remembrance was intended to give gratitude to the
Holy One, blessed be He. This does not at all sound like a secular concept. And so, if Kiddushin 66a is to be
employed as a precedent for American Thanksgiving, then being ordained by a predominantly Noahide society
American Thanksgiving should seemingly represent a Noahide religion and be off-limits for Jews.
In summary, we have surveyed three different avenues to interpret R. Feinsteins responsum in Even ha-Ezer
II, no. 13 regarding the application of Leviticus 18:3 to Jewish celebration of American Thanksgiving. All three
ways possess unresolved difficulties.152 But according to the third approach (i.e. the approach R. Feinstein himself
149

Iggerot Mosheh, Orach Chaim V, no. 20 (sec. 6).

150

Iggerot Mosheh, Yoreh Deah IV, no. 12.

151

Ibid.

152

Cf. R. Hershel Schachter, who has opined in a lecture delivered on Nov. 23, 2010, Thanksgiving is a serious
question. Recorded at
<http://www.yutorah.org/lectures/lecture.cfm/752586/Rabbi_Hershel_Schachter/Press_Conference_What_is_Modern_Orthodoxy,_non-Jewish_music,_Yom_Ha'atzmaut,_and_many_more_topics>.

114

advocated in his posthumously published response), there are two classes of Leviticus 18:3, viz. those cultural
practices that possess a religious motif and those that do not. This classification parallels the classification presented
in Section A of this Appendix. In R. Feinsteins case, he distinguished the first class from the second in terms of
which carries a marit ayin prohibition. In Section A of this Appendix, the poskim surveyed distinguished the first
class from the second in terms of which one is prohibited under force majeure. But the dichotomy is perfectly
mirrored.
C. The Debate Between R. Broyde vs. R. Auman
In Hakirah: The Flatbush Journal of Jewish Law and Thought, Vol. 8 (Summer 2009), R. Michael J.
Broyde and R. Kenneth Auman debate whether it is permissible for a karov le-malkhut (a Jew with close
governmental connections whose diplomatic intervention could rescue the Jewish community from future peril) to
enter a place of avodah zarah during the time that avodah zarah is being worshipped. R. Broyde argues in favour of
leniency, claiming that just as a karov le-malkhut is permitted to violate Lev. 18:3 by wearing gentile clothes, so too
is a karov le-malkhut permitted to enter a place of avodah zarah even during the exact time that the avodah zarah is
being worshipped. R. Auman argues in favour of stringency, claiming that entry into a place of avodah zarah during
the time that avodah zarah is being worshipped represents a more stringent violation than wearing gentile clothes,
and is forbidden even for a karov le-malkhut.
It would appear to this writer that the analysis presented in Sections A and B of this appendix, viz. that
there are two classes of Lev. 18:3, supports the stringent position of R. Auman.153 Namely, wearing gentile clothes
(the first class of Lev. 18:3) is permitted to a karov be-malkhut, but entry into a place of avodah zarah at the time the
avodah zarah is worshipped (the second class of Lev. 18:3) would be forbidden even for a karov le-malkhut. Indeed,
in footnote 41 of the Hakirah article detailing the R. Broyde vs. R. Auman debate, R. Broyde admits that he knows
of no written source which permits a karov le-malkhut to enter a place of avodah zarah even at the time that the
avodah zarah is being worshipped. [Rather, R. Broyde is relying on his own personal reasoning and on a practical
case where he reports that R. Eliezer Yehudah Waldbenberg orally instructed him to do so.]
Actually, if such an association (between R. Willigs analysis of mixed pews and the debate between R.
Broyde vs. R. Auman) is correct, then it should emerge that it would be forbidden for a Jew to enter a place of
avodah zarah while the avodah zarah is being worshipped, even for purposes of pikuach nefesh (just as R.
Soloveitchik is interpreted/misinterpreted by R. Willig as prohibiting mixed pews even for purposes of pikuach
nefesh.) Such a remarkably stringent conclusion is never explicitly acknowledged even by R. Auman. Likewise, R.
J. David Bleich (Tradition 44:2, Summer 2011), who revisits the problem debated by R. Broyde and R. Auman,
never explicitly acknowledges such a remarkably stringent conclusion as to forbid - even for pikuach nefesh - entry
into a place of avodah zarah while the avodah zarah is being worshipped. Indeed, all three scholars (R. Broyde, R.
Auman and R. Bleich) refer to Shulchan Arukh Yoreh Deah 157:3 which permits a Jew to enter a place of avodah
zarah for purposes of pikuach nefesh [so long as the Jew does not actually worship the avodah zarah].
Nevertheless, Shulchan Arukh Yoreh Deah 157:3 does not necessarily contradict the extrapolation [from R. Willigs
analysis of mixed pews], either. This is because one might explain that Shulchan Arukh refers only to entry into a
place of avodah zarah at the time the avodah zarah is not being worshipped. Thus, it is entirely possible that it is
indeed forbidden for a Jew to enter a place of avodah zarah during the time that avodah zarah is worshipped, even
for purposes of pikuach nefesh.154 The matter requires further analysis.

153

I am grateful to R. Matityahu Shlomo Mintz for illuminating my eyes with this valuable association.

154

This student recalls hearing from his late grandmother, Mrs. Lilly Spira, how she survived (be-chasdei HaKadosh Barukh Hu, Yishtabach Shemo) in a village somewhere in the Czech mountains during the Holocaust. Since
open admission of her Jewishness would have meant an automatic death penalty, she did not proactively announce
herself to be a Jew and she dressed in a gentile manner. [Thus far, her conduct was unquestionably correct, as per
Shulchan Arukh Yoreh Deah 157:2 that although a Jew may never claim to be a Noahide even in order to save
his/her life, a Jew may refrain from announcing the fact that he/she is a Jew in order to save his/her life, and even to
the effect of answering questions in a deceitful but always truthful manner (lashon de-mishtama li-trei apin).
Moreover, Shulchan Arukh allows the Jew to dress as a gentile in order to save his/her life.] This students
grandmother further reported that on Sundays, she would attend the local place of avodah zarah during the time that
the avodah zarah was being worshipped, but she would silently formulate her prayers in an exclusively Jewish
manner, again in order to save her life [so as to prevent the Noahide populace from realizing the truth that she was a
Jew.] According to the extrapolation from R. Willigs analysis of mixed pews [presented in the current Section C of

115

D. Good citizenship as an obligation

As a postscript to discussing Leviticus 18:3, it is important to emphasize that every Jew is duty bound to
serve as an extraordinarily benevolent model citizen, thereby sanctifying the Name of Heaven, pursuant to the
gemara in Yoma 86a (and many other sources).
Thus, Jews must always generously dispense charity to Noahides and diligently tend to the medical needs
of Noahide patients (following the directive of the gemara in Gittin 61a and the attendant codification of the
Rambam, Hilkhot Melakhim 10:12 as well as Shulchan Arukh Yoreh Deah 151:12).155 Moreover, Jews who are
privileged to inhabit constitutional liberal democracies such as the U.S.A. and Canada must express appreciation for
the privilege to inhabit a malkhut shel chessed, as explained by R. Moshe Feinstein in Iggerot Mosheh, Choshen
Mishpat II, no. 29. Self-evidently, Jews must continue to assiduously observe all the minutiae of the civil laws of the
constitutional liberal democracy in which they live (when those civil laws do not interfere with pre-existing Torah
obligations), pursuant to the authoritative principle of dina de-malkhuta dina, as per the gemara in Gittin 10b.
The halakhic obligation of a Jew to behave as a good citizen is matched by a philosophical insistence
within Jewish theology upon the spiritual greatness of Noahides. The gemara in Avodah Zarah 3a derives from
Leviticus 18:5 that a Noahide who occupies himself with the passages of the Torah relevant to him is as holy as a
High Priest. In Berakhot 6a, the gemara derives from Ecclesiastes 12:13 that any human being including a
Noahide who fears the Creator and who observes His commandments is to be treated as the worthy cause for
whose sake the entire universe was created. Indeed, to this effect, the gemara (Sanhedrin 37a) derives from the fact
that the universe was created with a single person [viz. Adam who was a Noahide] that each person must realize
that for his sake the universe was created.
At the same time, the Torah commands Jews to separate themselves from the cultural practices of
Noahides, as per Leviticus 18:3.156 And the laws of all constitutional liberal democracies guarantee that Jews may
freely observe the precepts of the Torah, including Leviticus 18:3.157 Ergo, good citizenship and Jewish cultural
this Appendix B], it would emerge that this students grandmother acted incorrectly and was required to accept the
risk of death rather than enter into a place of avodah zarah while the avodah zarah was being worshipped.
Nevertheless, two lines of defense can be advanced to advocate on behalf of this students grandmother:
(a) The present essay (being completed only after this students grandmothers ascent to the Heavenly
Academy) is the first time in halakhic literature that R. Willigs analysis of mixed pews is being extended to the R.
Broyde vs. R. Auman debate. Thus, one might argue that although this students grandmother transgressed, her
transgression was inadvertent in nature. Presumably, R. Waldenberg (according to the oral pronouncement reported
by R. Broyde earlier in Section C of this Appendix B) would have acted no differently, even if we must now
acknowledge that such conduct is presumably forbidden (based on R. Willigs analysis).
(b) Since there is no actual eyewitness testimony that this students grandmother ever entered a place of
avodah zarah during the time that the avodah zarah was being worshipped, the principle presented by the gemara in
Yevamot 25b that ein adam mesim atzmo rasha (i.e. self-incrimination is rejected by a Beth Din) would shield this
student from being required to believe his grandmothers admission. Indeed, R. Moshe Feinstein, Iggerot Mosheh,
Even ha-Ezer I, no. 135 employs this principle to reject the admission of an individual that he disregarded the
prohibition against transporting in the public domain on the Sabbath. A fortiori, when dealing with an event that
occurred decades ago and under emotionally excited circumstances, there is plausible reason to submit that this
students grandmother never actually entered a place of avodah zarah while the avodah zarah was being
worshipped. Her claim to the contrary may simply represent a hyperbole. Viz., she did dress as a gentile in order to
save her life, and she did enter a place of avodah zarah in order to save her life, but there is no requirement to accept
her admission that she entered a place of avodah zarah while the avodah zarah was being worshipped.
155

See, in particular, the recent elaboration upon this obligation by R. Aharon Lichtenstein in the latters Jewish
Philanthropy Whither?, Tradition 42:4 (Winter 2009).
156

Indeed, the importance of this commandment is illustrated by Rambam, Hilkhot Avodat Kokhavim 11:1, who
enumerates four Torah verses which carry this charge: Leviticus 18:3, 20:23 and 20:26, as well as Deuteronomy
12:30.
157

Additionally, the Torah teaches that the best way for Jews to be a source of blessing to humanity is through
diligent observance of the Torah (as per Genesis 12:3, 22:18, 26:4, and 28:14). [Indeed, the best way for any human

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separation co-exist in perfect harmony. This synthesis parallels the dichotomous theme propounded by R. Joseph
Ber Soloveitchik in his essay Confrontation158, viz. that the Torah summons the Jewish People to altruistically
contribute to the welfare of humanity, and simultaneously requires Jews to remain separate from the rest of
humanity.

being to be a source of blessing to his fellow human beings is through observing of mitzvot, as per the gemara in
Kiddushin 40a which encourages one to envisage that the very next mitsvah he/she performs will tip the scales in
favor of benefitting the world.] Thus, a Jew who carefully observes the precepts of the Torah (including Leviticus
18:3) may be regarded as a most patriotic citizen of any constitutional liberal democracy. This perspective is
reinforced by the Sifrei to Deuteronomy 13:18, which declares that when Jews are careful to avoid idolatry, the
world as a whole benefits from the protection of the Holy One, blessed be He.
158

Tradition 6:2 (Spring-Summer 1964), pp. 5-28. For a survey of how R. Soloveitchik applied the contents of
Confrontation in various contexts, see Yigal Sklarin, Rushing in Where Angels Fear to Tread, Modern Judaism
29:3 (October 2009), pp. 351-385.
As published in the original 1964 issue of Tradition, Confrontation is immediately followed by a
statement of the Rabbinical Council of America (pp. 28-29). With all due reverence manifest before the anonymous
architects of that statement (who are assuredly tzaddikim gemurim), the statement completely mistranslates Micah
4:5. It seems to these writers that the 1964 statement should be understood given the historical context of 1964, a
time of considerable peril for the State of Israel. Given the sensitive political realities of 1964, the Rabbinical
Council of America found itself unable to accurately present Michah 4:5. Today, several decades later, it is possible
to correct the public record (without detracting from the paramount honour due to the righteous architects of the
1964 statement), which the current essay is indeed accomplishing. In summary, the treatise "Confrontation" written
by R. Soloveitchik is halakhically normative; the 1964 statement appended to it is not.

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Appendix C
A transposable bimah as a possible explanation to Megillah 23a
As explored in Section B of this essay and elaborated in note 27, the poskim who require absolute
demographic separation in a synagogue must explain how the gemara in Megillah 23a allows (in theory) for a lady
to receive an aliyah. One possible solution (what is termed a forced alternative explanation in note 26) is to submit
that a transposable bimah (i.e. a bimah accessible by doors both from the ladies as well as from the gentlemens
section) be employed. Now, as emerges from Section M of this essay, such a unique architectural arrangement is
only possible according to the geographic and visual barrier theories of the synagogue partition, but not according to
the kinaesthetic barrier theory. Yet, the opinion that a geographic barrier suffices is recognized by this essay to
represent only a safek possibility, and therefore must be rejected in terms of normative Halakhah because of safek
de-Oraita le-chumra, as per Section E of this essay. On the other hand, a transposable bimah which consists of a
visual barrier (if constructed in such a manner to be rigid and hence to also constitute a geographic barrier, as per
Section J of this essay) can be justified on the basis of a sfek sfeka le-kula. Thus, a transposable bimah which is
surrounded by visual barriers (or consisting at least of walls of polarized glass, such that people on the bimah cannot
see the ladies side, and the gentlemens side cannot see the bimah) would achieve this goal.
Whether or not such a forced altenative explanation is at all halakhically viable is itself a matter of interest.
At first glance, this forced alternative explanation appears impossible, because when a lady receives an aliyah, she
certainly must be legally combined to the minyan in order to allow the tzibbur to discharge its obligation of Torah
reading. A person who is both completely invisible to the minyan and who is located in a separate domain as the
minyan seemingly cannot be combined with the minyan, as per Shulchan Arukh Orach Chaim 55:13-18. Thus, a
transposable bimah would ostensibly represent an impossible application in terms of applying Megillah 23a.
A. R. Frimers case
Nevertheless, writing in Tradition 23:4 (Summer 1988), R. Aryeh Frimer (Women and Minyan, segment
entitled Does the Mechitza Interfere with Joint Constitution), argues that that even if a synagogue partition
constitutes a visual barrier, it should be possible to include worshippers on either side toward a quorum, despite the
fact that this contradicts the plain meaning of Shulchan Arukh Orach Chaim 55:13-18. R. Frimer cites Erekh Lechem
(of R. Yaakov Kastro) to Shulchan Arukh Orach Chaim 55:19 as evidence to support his novel thesis.
In response to R. Frimer, it seems to this student that Erekh Lechem deals only with combining someone
standing behind a curtain that serves as a visual barrier. Since Section J of this essay concludes that a curtain alone
(despite its serving as a visual barrier) is insufficient to serve as a synagogue partition (but rather the curtain
would have to be supplemented by at least a rigid geographic barrier in order to create a sfek sfeka le-kula), therefore
pursuant to Shulchan Arukh Orach Chaim 55:13-18, a lady on the other side of the partition could not be combined
with the minyan to receive an aliyah.
R. Frimer further cites a letter of R. Menasheh Klein to R. Yehudah Herzl Henkin, printed at the
denouement of the latters Shut Bnei Vanim I. There, on p. 223, R. Klein explains that the fact patten described by
Megillah 23a (wherein a lady could theoretically receive an aliyah) concerns a lady separated by a curtain.
Here, too, this student would respond that since this essay will conclude (contra R. Klein) that a curtain
alone is insufficient to serve as a synagogue partition (but rather the curtain would have to be supplemented by at
least a rigid geographic barrier in order to create a sfek sfeka le-kula), therefore pursuant to Shulchan Arukh Orach
Chaim 55:13-18, a lady on the other side of the partition could not be combined with the minyan to receive an
aliyah.
R. Frimer further cites R. Shimon Sofer in his Shut Hitorerut Teshuvah III, no. 13, sec. 2; R. Shmuel
Yitzchak Schor in his Shut Minchat Shai I, no. 18; and R. Moshe Yaakov Beck in his Shut Chemdat Mosheh no.
13 who all allow passengers on a train to combine for purposes of forming a minyan, so long as there is a space of at
least three handbreadths between the backs of the seats and the ceiling, pursuant to Shulchan Arukh Orach Chaim
370:3 (in the context of combining different people for purposes of eruvei chatzeirot). R. Frimer adds that the basis
for these three poskim is the Semak cited by Beit Yosef in Tur Orach Chaim 55 and codified as a dissenting
opinion in Shulchan Arukh Orach Chaim 55:19 which explicitly links the laws of combination for purposes of
eruvei chatzeirot with the laws of combination for purposes of establishing a minyan for public prayer where the
sheliach tzibbur is standing on a bimah surrounded by fortified walls.
To that effect, Shulchan Arukh Orach Chaim 55:19 rules as follows: If the sheliach tzibbur is in the
teivah [i.e. is standing on the bimah] and nine are [elsewhere] in the synagogue, they combine even though it [-the

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bimah-] is ten [handbreadths] high and four [by four handbreadths] wide [in surface area] because it is ancillary to
the synagogue. And there is one who has written [i.e. Semak] that this is only so if the walls [of the bimah] do not
reach the ceiling.
Accordingly, argues R. Frimer, it is possible to combine worshippers on either side of a visual barrier
toward completing a minyan, and this should be true even if the visual barrier is composed of solid walls, so long as
there is a space of at least three handbreadths between the top of the visual barrier and the ceiling.
In response to R. Frimer, it seems to this student that Hitorerut Teshuvah, Minchat Shai and Chemdat
Mosheh arguably deal only with a case where there is no visual barrier between the ten gentlemen on the train. But if
there would actually be a visual barrier, perhaps the ten gentlemen could not combine with one another, even if there
was a space of at least three handbreadths between the top of the visual barrier and the ceiling. Moreover, the Semak
is only a dissenting opinion quoted by Shulchan Arukh. [Moreover, the Semak deals only with the visual barriers
surrounding a bimah, since a bimah is special in that it is automatically ancillary to the synagogue since the Sefer
Torah is read from the bimah. R. Frimers extrapolation from the Semak to all visual barriers everywhere in a
synagogue is therefore inappropriate, with all due respect to R. Frimer. On the other hand, since in the context of
the forced corollary explanation described by this Appendix we are dealing with a bimah, this last objection is not
relevant for the particular context of this Appendix]
In any event, this student does concede to R. Frimer that the fact that Hitorerut Teshuvah, Minchat Shai
and Chemdat Mosheh even invoke Shulchan Arukh Orach Chaim 370:3 altogether as any sort of source of interest in
the context of combination for purposes of a minyan [for public prayer] is surprising, and possibly serves as a
support to R. Frimers argument. This point is also noted by R. Simchah Rabinowitz in his Piskei Teshuvot
commentary to Mishnah Berurah, Orach Chaim 55, footnote 168 [although R. Rabinowitz misreferences the
responsum in Hitorerut Teshuvah as Hit orerut Teshuvah I, no. 29 (-unrelated to our topic), instead of the correct
reference Hitorerut Teshuvah III, no. 13, sec. 2, with all due reverence manifest before R. Rabinowitz.]
Thus, while it is not clear that R. Frimer is correct [given the apparent contradiction between his thesis and
Shulchan Arukh Orach Chaim 55:13-18] it is not clear that R. Frimer is incorrect, either [given the ambiguous
nature of Shulchan Arukh Orach Chaim 55:19 and the ambiguous Hit orerut Teshuvah, Minchat Shai and Chemdat
Mosheh that seem to have capitalized on Shulchan Arukh Orach Chaim 55:19.]
B. Support from Meiri
Possible support to R. Frimers case might be adduced from the following footnote of R. J. David Bleich in
Contemporary Halakhic Problems III, pp. 117-118:

The comments of the thirteenth-century talmudic commentator, R. Menachem Meiri,

Rosh ha-Shanah 28a, certainly reflect recognition that women may share in the kiyyum of
tefillah be-zibbur. Meiris159 remarks that women who pray in a synagogue separate
unto themselves do not share in communal prayer. Clearly, the inference to be drawn
from this comment is that, when praying in the synagogue proper, they do enjoy the
benefits of tefillah be-zibbur. The categorization a synagogue separate unto themselves
does not apply to womens sections of contemporary synagogues. Nor, apparently, was
his comment germane with regard to synagogues in use during the talmudic period.
Indeed, Meiri explicitly limits his comment to our women.
Although R. Bleich is cryptic in this regard, the implication of his analysis is that he understands Meiri to
distinguish between synagogues where the visual barrier partition reaches the ceiling [-or, presumably, within three
handbreadths of the ceiling, given the principle of lavud] (which Meiri censures as depriving ladies of the kiyyum of
tefillah be-tzibbur) and synagogues where the visual barrier partition does not reach within three handbreadths of the
ceiling (which Meiri would presumably endorse as representing the proper synagogue partition). [After all, it may
be recalled that Meiri interprets the balcony that was constructed for the Rejoicing of the Water Drawing in Sukkah
51b as having been a visual barrier, as described in Section C.] Arguably, then, one could claim that this dichotomy
of Meiri supports R. Frimers contention of combining worshippers on either side of a visual barrier for purposes of
forming a minyan for public prayer, so long as the partition does not reach within three handbreadths of the ceiling

159

This is apparently a typographical error on R. Bleichs part, and should be corrected to Meiri.

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(analogous to Semaks position). Indeed, in R. Frimers subsequently co-published Womens Prayer Groups in
Tradition 32:2 (Winter 1998), footnote 68, R. Frimer explicitly suggests Meiri might be interpreted in this manner.
However, several deflections to this proof from Meiri are possible:
a)

Contrary to R. Bleich and R. Frimers suggested reading, perhaps Meiri really means to communicate
that he does not believe a synagogue partition is required altogether, just like Teshuvot ha-Rashba
seems to write (as discussed in Section D of this essay). As such, Meiri might be censuring all
synagogues with synagogue partitions. [Of course, that position is rejected by the overwhelming
consensus of poskim, and with good reason, as described in Section D of this essay. Nevertheless, the
point to appreciate here is that Meiri may have shared what seems to be the radical minority opinion
of Teshuvot ha-Rashba.] If so, Meiri might indeed hold that people on opposite sides of a visual
barrier do not combine for purposes of forning a minyan, such that Meiri might not serve as a support
to R. Frimer.]
b) Alternatively, perhaps Meiri does endorse a synagogue partition, but only requires it to be a
kinaesthetic/geographic barrier, not a visual barrier. [Although as already observed Meiri interpets
the balcony of Sukkah 51b as representing a visual barrier, it is technically possible to offer a forced
reading to those comments to render them compatible with a kinaesthetic/geographic barrier. See
supra, note 60 (in the context of similarly offering a forced reading to the comments of Rambams
Peirush ha-Mishnayot, in order to render them compatible with the kinaesthetic/visual barrier
theories.) See also supra, Section D, where such a forced reading was offered on behalf of Teshuvot
ha-Rashba.] If so, Meiri in his commentary to Rosh ha-Shanah 28a might be distinguishing
between a synagogue which possesses a kinaesthetic/geographic barrier [which he encourages], and a
synagogue which possesses a visual barrier [which he censures]. Ergo, Meiri might indeed hold that
people on opposite sides of a visual barrier do not combine for purposes of forning a minyan, such that
Meiri might not serve as a support to R. Frimer.
c) Even if R. Bleich and R. Frimers suggested reading of Meiri is correct, it is questionable whether
practical Halakhah may be derived from the newly discovered manuscripts of Meiri. See R. Moshe
Bleichs The Role of Manuscripts in Halakhic Decision Making, in Tradition 27:2 (Winter 1993),
pp. 22-55.160 In particular, this student recalls attending a lecture at Yeshivat Har Etzion during
summer 5760, when R. Aharon Lichtenstein was asked on this matter, and he responded that one can
only derive a stringency from a newly discovered manuscript, but never a leniency. If so, one would
not be able to rely on the Meiri to validate a transposable bimah as a fulfillment of Megillah 23a.
C. Analysis of R. Henkin
In an analysis (published in book form only after R. Frimers 1988 article Women and Minyan and only
after R. Bleichs 1989 book Contemporary Halakhic Problems III, but before R. Frimers 1998 article Womens
Prayer Groups) by R. Yehudah Herzl Henkin in Shut Bnei Banim II, no. 7, R. Henkin addresses the question of
whether a lady can recite kaddish from the ladies sanctuary in a synagogue. This prompts him to embark upon an
in-depth exploration of whether people on both sides of a synagogue partition (which also serves as a visual barrier
but which does not reach the ceiling)161 can combine for purposes of forming a minyan for public prayer. R. Henkin
concludes (end of third paragraph on p. 25), and according to this perhaps one should be stringent regarding
160

Tangentially, in the course of that analysis, R. Moshe Bleich challenges R. Moshe Feinsteins approach (in
Iggerot Mosheh, Yoreh Deah II, no. 7) to the newly discovered manuscripts of Meiri, on the basis of Tosafot to
Bava Metzia 71a. R. Feinstein contends that contrary to Meiri a Noahide who volunteers to fulfill a mitzvah
which is purely ritual and which is directed exclusively to Jews will not receive any rewad for so doing. R. Moshe
Bleich attempts to refute R. Feinstein on the basis of Tosafots declaration that a Noahide is rewarded for lending
money without interest. With all due respect to R. Moshe Bleich, it seems to this student there is an ethical rationale
apparent in lending money without interest, and so Tosafots comment is potentially compatible with R. Feinsteins
thesis. R. Feinstein concedes that a Noahide is rewarded for volunteering to fulfill a mitzvah directed at Jews which
possesses a clear ethical purpose.
161

Although R. Yehudah Herzl Henkin himself holds that a visual barrier is not required as a synagogue partition,
and indeed he is a prime exponent of the geographic barrier theory (as described in Section C of the main text of this
essay), nevertheless his analysis in Shut Bnei Banim II, no. 7 [regarding the combination of worshippers on either
side of a synagogue partition] addresses the particular fact pattern of a visual barrier.

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combination for purposes of a minyan for chazarat ha-shatz and reading of the Torah, since they have blessings
and Azkarot (articulations of the Name of the Holy One, Blessed Be He), and [hence] a doubt regarding the
unnecessary articulation of the Name of Heaven, and this is the opinion of Shulchan Arukh who brought the opinion
of Rif only for purposes of stringency. But for kaddish which does not contain Azkarot it does not seem
[necessary] to be stringent, and its doubt [can be treated] to be lenient162 Thus, R. Henkin concedes it is entirely
possible that we must be stringent to forbid the combination of people on both sides of a visual barrier for purposes
of reading the Torah. According to this possibility that one must be stringent, a transposable bimah does not seem to
represent a feasible option.
D. One creative possibility
Nevertheless, there is one highly fanciful manner in which a transposable bimah could be reconciled with
Megillah 23a in terms of halakhah le-maaseh. Since as will be concluded infra in Section E a geographic
barrier suffices when there are only one or two ladies present, the following hypothetical architecture could be
envisaged: The bimah is separated from the gentlemens section by a mere geographic barrier, with accessible doors.
On the other hand, the bimah is separated from the womens section by visual barriers (or consisting at least of
walls of polarized glass, such that neither the gentlemens sanctuary nor people on the bimah can see the ladies
sanctuary, but the ladies sanctuary can see both the bimah and the gentlemens sanctuary) with accessible doors.
Before a lady arrives on the bimah to receive an aliyah, all the gentlemen leave the bimah to the gentlemens
section. The lady then ascends to the bimah, and may on the one hand be combined with the minyan so as to
receive the aliyah (at least in theory, as per Megillah 23a), since she is visible to the gentlemen, but on the other
hand she is acceptably separated in an absolute manner from the gentlemens section by way of a geographic
barrier, since she is standing as a lone lady on the bimah (and all the other ladies in the synagogue are invisible to
the gentlemens sanctuary, since the visual barrier interposes).
However, even this highly fanciful approach to Megillah 23a must be acknowledged to be incompatible
with the approach of R. Moshe Sofer in his Shut Chatam Sofer, Orach Chaim no. 28, to the laws of bimah
architecture. R. Sofer prefers the bimah to be centred in the gentlemens section so that during the Hoshanot prayers
of the Sukkot holiday, gentlemen will be able to perform hakafah circuits around the bimah. Such a specification
cannot be met in the case of a transposable bimah (as described by this highly fanciful approach to Megillah 23a).
For a survey of conflicting opinions regarding whether R. Sofers specification is normative, see pp. 362-368 of
Liturgical Innovation and Spirituality: Trends and Trendiness by Dr. Judith Bleich in Jewish Spirituality and [Law
of the Holy One, blessed be He], R. Adam Mintz and Dr. Lawrence Schiffman, eds., Orthodox Forum Series, 2003.

162

Cf. R. Simchah Rabinowitz in his Piskei Teshuvot to Mishnah Berurah II, Orach Chaim no. 132, sec. 33, who
prohibits a lady from reciting kaddish. An adjudication of this dispute between R. Henkin and R. Rabinowitz is
beyond the scope of the present essay.

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Appendix D
The position of R. Joseph Chaim Sonnenfeld
on the structural integrity of a partition
As discussed in Section J of this essay, there are three schools of thought [identified there as (i), (ii) and
(iii)] how to interpret the necessity of partitional structural integrity demanded by the gemara in Sukkah 24b. The
posek whose ruling is most difficult to discern in this context is R. Joseph Chaim Sonnenfeld, Shut Salmat Chaim,
nos. 253-254. [N.B. Reference here is to the Bnei Brak 5742 edition of Salmat Chaim. In the newer Jerusalem 5767
edition published by R. Shlomo Werner, the same responsa are published as nos. 351-352.]
In order to appreciate the multi-valent nature of Salmat Chaims ruling, the full text of his verdict
(containing the questions presented by R. Shlomo Sobel [-not to be confused with R. Shlomo Werner, publisher of
the Jerusalem 5767 edition], plus R. Sonnenfelds answers) will now be recapitulated.
Question 253: Regarding the walls of the sukkah that there are those who create them from
canvass and the like, and it moves to-and-fro via a normally anticipated wind, and in truth it is
very difficult to secure them so strongly that they should not move even a little bit via the wind,
and the matter is visible to the eye, and it is clarified in [Shulchan Arukh Orach Chaim] 630:10
that even if the wind does not cause them to fall to the ground, only that it moves to-and-fro, we
hold that it is not considered a partition. And if so this requires investigation how many sukkot are
created in this manner such that the sheet moves to-and-fro a little bit via the wind.
Answer: I will not deal with this. Presumably, not all the partitions move and sway in this manner,
and so hanach lahem le-Yisrael [i.e. leave the Jewish People in tranquility to act as they are
currently acting (-an obvious invocation of the gemara in Pesachim 66a).]
Question 254: Regarding sukkah partitions that move via a normally anticipated wind, that which
[R. Sonnenfeld, being addressed in third person] previously wrote not all the partitions move and
sway in this manner I do not know [i.e. I do not understand] what measurement there is in this
that it should be permitted.
Answer: That which I wrote not all, the meaning is that for sure all the walls do not move, and so
there always remain partitions which are worthy.
One way of interpreting this exchange [tentatively advanced by this student in the main text of Section J], is
that R. Sonnenfeld is focusing on the fact that the walls only move a little bit, but nothing more. R. Sonnenfeld
believes that this is sufficient to comply with Sukkah 24b, thus identifying R. Sonnenfeld with position (ii) of
Section J, viz. the same camp as Moadim u-Zemanim and Beit Avi.
However, R. Ovadiah Yosef (Yabia Omer IX, Orach Chaim no. 59) interprets R. Sonnenfeld as following
position (i) in Section J, to the exclusion of the position of Beit Avi. [Moadim u-Zemanim is not cited by Yabia
Omer, but Moadim u-Zemanims opinion is the same as Beit Avi, and so Yabia Omer is evidently rejecting both.]
Now, Yabia Omer does not explain how precisely he sees this conclusion within R. Sonnenfelds words, but the
blanks seem to be filled by R. Shlomo Werners Shalmah Imratekha commentary to the responsa [-adorning the
Jerusalem 5767 edition of Salmat Chaim published by the same R. Wener.] R. Werner suggests as an initial
possibility that when R. Sonnenfeld speaks of not all the partitions move and sway in this manner, it means that
there are always the minimum number of sukkah walls that do not budge at all, not even a little bit, and this [and
only this] is why the sukkah is kosher. [Accordingly, Yabia Omer would have a basis to understand Salmat Chaim
as identifying with position (i).]
However, R. Werner proceeds to note that this understanding is difficult, since the theoretical possibility of
a partition moving in the wind should equally disqualify the partition, even if the partition is not presently moving.
R. Werner therefore suggests that perhaps R. Sonnenfeld holds like R. Jacob Chagiz, Shut Halakhot Ketanot II, no.
50, that artificial wind-breakers validate a partition, such that as long as a partition does not actually move [even if it
could theoretically move had there been no wind-breaker], the partition is kosher. R. Werner concludes that if this
interpretation of R. Sonnenfeld is correct then Chazon Ish, Orach Chaim 52:14 follows R. Sonnenefeld.
On the other hand, as explained in note 93 of the present essay, both the Halakhot Ketanot and Chazon Ish
[being invoked by R. Werner] are themselves subject to competing interpretations among subsequent poskim.

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Indeed, R. Ovadiah Yosef himself rejects R. Werners understanding of Halakhot Ketanot. Perhaps, then, R.
Ovadiah Yosef reads R. Sonnenfeld as follows. When R. Sonnenfeld writes for sure all the walls do not move, and
so there always remain partitions which are worthy, he means [in the opinion of R. Ovadiah Yosef] that only some
of the walls are synthesized from canvas, but a minimum complement of sukkah walls are synthesized from rigid
material that remain completely stationary in the normally anticipated terrestrial wind.

Tam ve-Nishlam Shevach le-(K)-L Borei Olam

I am grateful to R. Yosef Blau (Mashgiach Ruchani of the RIETS); R. David Cadoch (Mara de-Atra of the
Maimonides Hospital Beth HaRambam synagogue in Montreal, Canada); R. Saul Emanuel (Executive Director of
the Jewish Community Council of Montreal, Canada); R. Yochanan Herzog (of Montreal, Canada);Yehudah Hazan
(architect of Congregation Kol Yehouda in Montreal, Canada); R. Tuvia Hoffman (Mara de-Atra of Congregation
Beth Zion in Montreal, 5771-5772); Reb Elliot M. Kramer (of Montreal, Canada); R. Asher Jacobson (Mara deAtra of Congregation Chevra Kadisha Bnei Jacob in Montreal, Canada); R. Baruch Plaskow (Rosh Kollel of Kollel
Torah Mitzion in Montreal, 5763-5767); R. Michael Rootman (of Toronto, Canada); and Dr. Mark Wainberg (of
Montreal, Canada) for graciously reviewing initial drafts of this essay. Moreover, and in keeping with the theme
articulated in the conclusion of this essay that the righteous ladies of Israel are endowed with superior understanding
(as per the gemara in Niddah 45b) and that the righteous ladies of Israel are the heroes of cosmic history and
destiny, I am most grateful to Ms. Roberta Capelovitch, Dr. Feige Kaplan, Mrs. Loni Kupferberg, Ms. Omer
Mendelson and Rebbetzin Yael Plaskow for offering excellent guidance and insights that facilitated the composition
of this essay. By contradistinction, any errors are solely the responsibility of this student.

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