נשים בדיון הלכתי, הקול הנשי של הקדישJewish Legal Writings by Women, The Female Voice of Kaddish

א׳

1Rochelle L. Millen

ב׳

2While women reciting the mourner’s kaddish has rarely been a widespread custom, responsa literature, historical sources, and contemporary testimony point to it as a practice that has always been part of the communal behavior of the Jewish community. From seventeenth century Amsterdam to the post-Shoah period, women would say kaddish during shiva at home and frequently attend daily services to express their grief and pay proper tribute to a loved one through the public recitation of kaddish. Saying kaddish at the grave, during the funeral, was also a customary practice among devout women in certain communities.

ג׳

3When Rav Menachem Mendel Auerbach, a member of the beit din of Boston, died in 1952, his widow, Esther, said kaddish for her husband, although there were sons to do so. Mrs. Auerbach, scion of a rabbinical family from Kovno, recited kaddish in her home during the shiva, as well as for the remainder of the required thirty days in shul. She attended the services of the Bostoner Rebbe, then located in Dorchester, every day.¹Related to me in December, 1997, by Ada Greenwald Jacobowitz in the presence of her mother, aged 93, Dorothy Auerbach Greenwald. They are, respectively, the granddaughter and daughter of Rav Auerbach.

ד׳

4This acceptance of the presence of Mrs. Auerbach at daily minyan stands in sharp contrast to testimonies about the responses of some rabbis and other members of the male Jewish community as evidenced in more recent decades. When the father of a longtime member of a Young Israel congregation in the New York area died, she recited kaddish during shiva and came to shul three times a day for the next three weeks. At the conclusion of the thirty days, she continued to come to recite kaddish, intending to do so for the required eleven months. To her surprise, she was confronted by her rabbi who said, “I’ve been very nice until now. We have to have a meeting about this.” The “meeting” he requested became the occasion for him to yell at the woman, saying “there are bigger tzedkaniyot [righteous women] than you and they stay home and learn Chumash.” This brusque, insensitive, statement of disapproval notwithstanding, the woman correctly did not regard the rabbi’s statement as a pesak, and simply continued coming, despite the hostile ambiance created by his harsh words. This occurred in 1979.²The woman to whom this incident occurred prefers to remain anonymous.

ה׳

5These two incidents serve as paradigms, it seems to me, of the diverse attitudes evidenced in Halakha. Clearly, there are groups on the religious right where perhaps the very idea of a woman reciting kaddish is anathema, as there are certain groups in which it is considered inappropriate for a woman even to drive a car. This article is not about those groups within Judaism where women may be so restricted, although such groups are surely influenced by the more conservative responsa. Rather, the aim of this essay is to trace the development of the responsa literature regarding women and kaddish, analyzing the grounds and lines of argumentation.³This article is an updated and expanded version of my “Women and Kaddish: Reflections on Responsa,” Modern Judaism 10 (1990): 191–203. I am especially interested in the divergent directions manifested in the halakhic literature of the last decade in response to this issue. The increasingly restrictive attitudes, often coupled with attacks on those legal authorities who arrive at more lenient conclusions, testify in my view to an underlying fear of the influences of feminism upon halakhic Judaism. The tension expressed in the responsa literature strongly resembles that which appeared in regard to the Bat Mitzvah controversy several decades ago.⁴R. Moshe Feinstein, IM, OC 1:104, 2:97, 4:36, and 2:30; R. Ovadia Yosef, Yechave Daat 2:29 and Yabia Omer 6:29; R. Yechiel Weinberg, Sredi Esh 3:93. See analyses of Norma Baumel Joseph and Erica Brown in this volume. That which was once a point of contention and dispute within the halakhic community—should a twelve year old girl celebrate her Bat Mitzvah in any fashion—is now de rigeur, even within many chassidic communities.

ו׳

6The life-cycle events, together with Shabbat and the chagim, form the bases from which Jewish identity and community emanate. Surely, then, the discussion of women as mourners, women confronting the finality of the death of a loved one, needs careful examination and analysis.

ז׳

7While women, according to Jewish law, are duty-bound in all the halakhot of avelut, or mourning, such as the rending of one’s garment, the meal of condolence, the prohibitions of bathing or sexual intimacy during shiva, the one act often discouraged is the public declaration of the doxology of kaddish.

ח׳

8The earliest known responsum in which the issue of women and kaddish is discussed appears in the late seventeenth century work of R. Yair Bachrach, known as the Chavot Yair. Based on a particular set of circumstances in Amsterdam, R. Bachrach’s responsum became known simply as “the Amsterdam case.” It is referred to in nearly all subsequent discussions of women and kaddish. While rabbinic authorities agreed that the answer given in the Amsterdam case was the right one for that specific situation, other related questions arose in other cases. As we shall see, the responsa literature manifests two trends: one that restricts the premises and conclusion of the Amsterdam case, and a second one that expands upon them.

ט׳

9Kaddish has come to serve not only as a memorial prayer, but also as a cathartic connection to the community in the working through of grief. The question is: did the oft-times unavailability of kaddish to women have to do with the general exclusion of women from participation in public prayer, or were women able to—and did they in fact—recite kaddish? In examining the halakhic parameters of this query, theological, philosophical, and sociological factors come into play. As in all decision-making processes, the personality of those in positions of leadership also plays a crucial role. When I said kaddish for my mother, may her memory be blessed. I had to fight to have the lights turned on in the women’s section. The rabbi refused to have the tzedaka box passed to me, proclaiming this action “immodest” and no member of the minyan spoke to me, certainly not words of comfort. While reciting kaddish for my father, may his memory be blessed, I was warmly welcomed; mishnayot were regularly learned in my father’s memory immediately following davening. Regularly ensconced in the midst of a community which recognized my grief, its frozen glaze gradually became less brittle. Both experiences occurred in Young Israel synagogues in the 1980s. In each case, the rabbi set the tone. Thus, while the nuances of Halakha as expressed in its underlying philosophy and theology need to be scrutinized, an important aspect of the sociological factor would also include an examination of the positions of the religious leadership. We need to investigate the origin of kaddish in order to clarify these issues.

י׳

10The kaddish prayer, which has four forms, was originally not part of the synagogue service. It had no connection to the prayer service for the dead. The Talmud Sota (49a) notes that it was the concluding prayer with which the teacher or preacher indicated the end of his public discourse; it was formulated in Aramaic, as was the discourse itself. The first reference to kaddish as part of the synagogue service—indeed the first instance in which this doxology is termed kaddish—is in the tractate Soferim (16:12, 19:1, 21:6). This tractate, written in the sixth century after the closing of the Talmudic canon, also records the use of kaddish at funerals, the first reference we have to what seems to have become accepted custom. Addressed to all assembled, it was spoken in the Babylonian vernacular, i.e., Aramaic. A further association of kaddish with the dead noted in Soferim is that it was recited at the end of the seven day period of mourning as part of a concluding ceremony, of which learning and expounding texts was a part.

י״א

11Originally the recitation of kaddish at the end of shiva, or the seven days, was reserved for those of scholarly accomplishment. Later, however, in order not to put anyone to shame, it became the accepted practice for everyone. An additional reference in Soferim to the connection between kaddish and mourning is given in 19:12. The text reads, “The reader after musaf goes behind the synagogue door, or in front of the synagogue where he finds the mourners and their relatives. He comforts them with the berakha⁵This refers to the words of comfort extended to the mourners. and then he recites the kaddish.” During these centuries the kaddish was understood to be and recited as a doxology and a justification of God’s ways.

י״ב

12In a geonic source, however, the Ottiyot de Rabbi Akiva, a new purpose is ascribed to kaddish: it is said to have the power of redeeming the dead from the sufferings of Gehenna.⁶This term originally referred to the Valley of Ben-Hinnom, south of the walls of Jerusalem. Two references are given. In one, Akiva is said to meet a spirit in the guise of a man carrying wood. The wood, the man relates, is for the fire in which he is burned daily as punishment for his mistreatment of the poor. He would be released from this suffering, however, if he had a son to recite barekhu⁷The recitation in the prayer service of barekhu, or “Bless the Lord who is blessed,” requires a minyan, or the presence of ten men, who then respond, “Blessed be the Lord who is blessed forever and ever” (Birnbaum translation). The ten men, in Jewish law, constitute a congregation. and kaddish before a congregation that would respond with the praise of God’s name. Upon discovering that the man had neglected his son, Akiva cares for and studies with the young man until one day the son stands before a congregation, recites barekhu and kaddish, and releases his father from Gehenna. The idea that a son, by virtue of his piety, may exert a redeeming influence on behalf of a parent who has died is mentioned in other sources as well, contemporaneous with or later than the Ottiyot de Rabbi Akiva. An example is in the collection of midrashim known as Tanna debe Eliyahu Zuta, where R. Yochanan ben Zakkai, not R. Akiva, is the central figure.⁸See also, however, Sanhedrin 104a. “A son confers privileges on his father, but a father confers no privilege on a son” (Soncino translation).

י״ג

13Mishnaic and talmudic sources state that the torture of Gehenna lasted twelve months,⁹See Mishna Eduyot 2:10; Rosh haShana 17a. hence originally kaddish was recited for that length of time. Later, however, it was deemed inappropriate for progeny to suppose the soul of a parent in Gehenna; the obligatory period of time for the recitation of kaddish was then reduced to eleven months. The practice of regular recitation of the kaddish by mourners seems to have become firmly established during the early thirteenth century, in response to the severe persecutions in Germany resulting from the Crusades. Kaddish is also recited on the yahrtzeit, or anniversary of death.

י״ד

14Once kaddish entered into the halakhic structure as a memorial prayer for the dead, how were women affected? First, as part of the liturgy requiring a minyan, or ten men, in order to be said, women were excluded as non-members of the male representative group. Second, in Henrietta Szold’s famous response,¹⁰“I believe that the elimination of women from such duties (reciting kaddish) was never by our law and custom—women were freed from positive duties when they could not perform them, but not when they could. It was never intended that… their performance of them should not be considered as valuable and valid as when one of the male sex performed them. And of the kaddish, I feel this is particularly true.” Baum, Hyman and Michel, The Jewish Woman in America (NY, 1975) 45. the recitation of kaddish, it is implied, is a mitzvat ase shehazman graman, a positive time-specified commandment—albeit one of rabbinic origin—which, according to mishnaic sources, women are excused from performing.¹¹Kiddushin 34a. Significantly, however, in all the responsa literature on kaddish, mitzvat ase shehazman graman is never cited as a reason for women’s non-obligation to say kaddish. However, since kaddish became closely allied with public prayer, perhaps the association was implicit rather than explicit. Or perhaps kaddish was not regarded at all as a mitzva derabanan, a rabbinic enactment, but rather as a minhag, a custom, which gained the strength of social expectation, an expectation which did not devolve upon women.

ט״ו

15Before examining some of the responsa literature, it is important to note the following. First, the Midrash cited earlier regarding R. Akiva speaks about son and father. As in many sources, the male—and male relationships—are considered paradigmatic; ben, being both the neuter and masculine in Hebrew, is also always translated as “son” rather than “child” or “offspring.” The problems caused by language are known; they are complex, profound and difficult, and affect the innermost perceptions of ourselves, and ourselves in relation to others—especially others of the opposite sex. In an intricate system of jurisprudence such as that of Jewish law, the repercussions—need it be said?—are serious indeed. Critical feminist thinkers from Simone de Beauvoir to Judith Plaskow have addressed the issue. The Midrash mentions only ben, in every translation and interpretation understood as “son,” and av, as “father.” The other six relatives for whom one would also be required to say kaddish are not enumerated (i.e., mother, spouse, brother, sister, son, daughter). But there is a saving specification here. If son and father are paradigmatic, then clearly others are not excluded, but merely not mentioned. That is, as a son would say kaddish for a mother, a daughter might say kaddish for a father or a mother. While this is true theoretically, it should be noted that in eastern European culture a son was often called “my little kaddish” or “kaddishle,” a name once applied by my late father, born in Poland, to my son, then seven years old. It is also interesting to note that the geonic and early post-geonic discussions of kaddish deal almost exclusively with the child (or son) saying kaddish for a parent, an eleven month proposition. But what about the relatives for whom traditional mourning takes place? For them—sibling or spouse, for instance—kaddish is said only for thirty days. Is there any relationship between the thirty-day recitation and release from Gehenna? No source that I know of makes this connection. The parent-child relationship here receives decided emphasis.

ט״ז

16Second, once kaddish became an established part of the observance of mourning, it came to serve important psychological functions. It compels the mourner to reaffirm connection with the community through daily prayer precisely when despair and alienation are most profound. As part of the community, the mourner testifies to his/her continuation within the tradition of which the deceased was a part. This is in accordance with the talmudic dictum in Sanhedrin 104a: “A child can endow a parent.”¹²See n8 above. And in its most abstract sense, kaddish serves as a statement of the unknowability, though justification of God’s ways. Kaddish becomes a significant component—a cathartic yet simultaneously self-affirming exercise—of the bereavement process. While the other laws of mourning were clearly designed with a psychological aspect in mind, that kaddish would also serve this purpose seems not to have been the motivation for requiring its recitation; benefit accruing to the soul of the departed—specifically the parent—was the original intent. Yet its psychological effects have long been acknowledged.

י״ז

17A third and last point to keep in mind: after the Holocaust, women all over Europe said kaddish. It was accepted, perhaps even expected and encouraged. So we have behavior that contravenes much of the halakhic literature. The problem seems to be this: women are unilaterally included in all requirements of mourning, of which kaddish is one. It was recognized that saying kaddish is consonant with a woman’s identity as mourner, human being, Jew. But kaddish operates within the arena of public prayer from which women were proscribed as participants equal with men. Hence the dilemma. The responsa, as we shall see, straddle the fence, equivocate, seem inconsistent at times and in the end fail, I feel, to state adequately the case for women within the tradition. For even within the bounds of the traditional categories within which woman’s status in Jewish law operates, there is much flexibility and adaptability. Unfortunately, while this openness may be used on an individual basis, it rarely appears in the halakhic literature as a precedent for others. As we shall see, the tendency in the responsa literature to restrict the ruling in the Amsterdam case is predominant, although there is also present a trend which expands upon it.

י״ח

18Let us now examine some of the responsa. That only sons said kaddish seems to have been the norm, a practice supported by both sociological and religious factors. However, in the Chavot Yair, R. Yair Bachrach, writing in the late seventeenth century, brings an important precedent. He says:

י״ט

19An unusual and well-known event occurred in Amsterdam. A man died without a son, and before his death commanded that ten should study in his home every day for twelve months, and after the learning his daughter should say kaddish. And the scholars and lay officials of the community did not prevent her from doing so. Even though there is no proof to contradict the matter, being that a woman is also commanded in kiddush HaShem, and even though there is a quorum (minyan) of males called bnei Yisrael, and even though the incident of R. Akiva, which is the source of mourner’s kaddish, refers only to a son, it is nonetheless logical that a daughter’s kaddish is also purposeful, for it comforts the soul of the deceased, since she is also his progeny. However, one must be concerned for the fact that should this become prevalent, it might lead to a general weakening of the customs of our people, which are like Torah itself; then everyone would be erecting his own pulpit according to his own logic and deriding rabbinic enactments, which they would come to scorn.¹³My free translation from Responsum 222, Responsa of the Chavot Yair (Jerusalem, 1972).

כ׳

20In the Responsum, R. Bachrach analyzes why the rabbinic authorities and lay officials in Amsterdam permitted the daughter of the man in question to say kaddish, obviously an unusual occurrence. He begins by stating that there is no “proof to contradict the matter,” i.e., there are no compelling reasons that would contravene the decision. From a halakhic perspective, he is saying, a woman’s saying kaddish is acceptable, permissible, and in the case under discussion, desirable. How is this so, given that the very existence of the responsum demonstrates that saying kaddish was not customary for women? That may be, R. Bachrach asserts, because the source for kaddish, i.e., the incident with R. Akiva, clearly refers, according to him, to a son (he understands ben in its masculine, not neuter sense). But there is halakhic precedent that overrides this consideration of ben as son only. That is that a woman is commanded in the mitzva of kiddush HaShem, which in some instances requires the presence of ten men, i.e., a minyan. As she can perform the mitzva of kiddush HaShem in the presence of ten men, she can likewise say the mourner’s kaddish in the presence of ten men.

כ״א

21Kiddush HaShem, or sanctification of God’s name, has three aspects in Jewish law. It can refer to martyrdom, to ethical perfection beyond the minimum standards set by rabbinic law, or to liturgical formulations which emphasize sanctifying God’s name. This last type of kiddush HaShem pertains especially to the two formal prayers of kedusha¹⁴Kedusha is the third blessing of the Amida prayer. Known also as kedushat HaShem, it is inserted at the beginning of the third benediction when the reader repeats the Amida during public worship. and kaddish. In kaddish, the congregational response of “May God’s great name be blessed forever and to all eternity”¹⁵My translation. is considered a kiddush HaShem. Since, that is, a woman has an obligation to perform the mitzva of kiddush HaShem should the opportunity arise, she certainly can say kaddish,¹⁶Note that R. Bachrach’s reasoning goes from “obligation” in kiddush HaShem to “can,” “may,” or “is permitted to” say kaddish and not from “obligation” in kiddush HaShem to “is therefore obligated to” say kaddish. which is an essential manifestation of this mitzva.

כ״ב

22Other observations to be gleaned from this responsum are:

כ״ג

231) Kaddish was said by the woman in the home and not in the synagogue.

כ״ד

242) Despite the efficacy of the daughter’s kaddish, and the solace it brings both her and her deceased father, there is caution in the face of the new. What if this change from the established practice leads to other, less palatable, perhaps less legitimate, although valid (according to the Halakha) practices? The custom until the time of the Amsterdam case was obviously that women did not recite kaddish. Despite the halakhic permissibility of women doing so, R. Bachrach discerns the overlap of religious law and social or cultural behavior, and is concerned about a general loosening of, or change within, the dominant modes of religious behavior.

כ״ה

253) The elders of the Amsterdam community consented to the dying man’s request in the absence of a son, or sons, to say kaddish. Their decision may otherwise have been different.

כ״ו

264) The responsum refers to what appears to be an unmarried girl (na’ara). Their decision may otherwise have been different in a circumstance involving a married daughter.

כ״ז

275) And lastly, why did the father request that the ten men study in his home and then have his daughter recite kaddish there? Some possibilities are:

כ״ח

28a. women usually didn’t attend synagogue, certainly not daily services

כ״ט

29b. going to and from the synagogue may have been difficult or unusual or dangerous or simply impractical for an unaccompanied single Jewish woman.

ל׳

30c. saying the kaddish in a home after learning would be less controversial than at the prescribed intervals during the daily morning prayers.

ל״א

31d. the structure of the synagogue would not allow the woman to be heard from the women’s section.

ל״ב

32Whether the reasons were practical or sociological, kaddish at home was requested and accepted. Interestingly, and not surprisingly, this became a precedent in subsequent responsa. An example is that of R. Yaacov Risher, who wrote and published the Shevut Yaacov, a halakhic compendium in Lemberg in 1880. He cites the Chavot Yair in his decision that women may certainly say kaddish, in the presence of a minyan, at home.

ל״ג

33The Be’er Heitev commentary¹⁷Written by R. Yehuda Ashkenazi of mid-eighteenth century Frankfurt. on the Shulchan Arukh cites the Knesset Yechezkel,¹⁸Responsa of R. Ezekiel Katzenellenbogen, Hamburg and Altona, 1670–1749. who comes to a similar conclusion. He says; “a daughter doesn’t say kaddish at all in the synagogue. But if they [the male community] wish to make a minyan for her at home they certainly can.” From not choosing the synagogue in the Amsterdam case, women here seem to be excluded from the synagogue, although their right to say kaddish is not questioned.

ל״ד

34The Gesher haChaim¹⁹Responsa of R. Yechiel Aaron Tukachinsky, written in 1947. takes what seems to have been based on practical considerations—a woman saying kaddish at home rather than at the synagogue—and adds a completely new, and, in my opinion, untenable, dimension. Quoting R. Akiva, he states that the essential function of kaddish is carried out by a son. But a daughter may, of course, say kaddish. If she is under twelve years of age, she may say it in the synagogue; some, however, would prohibit her doing so. If, however, she is twelve or over, she is not permitted to say kaddish in the synagogue. In either age group, kaddish may be said at home. The Gesher haChaim is adding a sexual element, puberty, where there is no indication that it is relevant.

ל״ה

35The late R. Uziel, former Sephardi Chief Rabbi of Israel, states that kaddish is a male obligation only. But his reasoning does not hold up to careful scrutiny. This is what he says:

ל״ו

36Only a son can take his father’s place sanctifying God’s name in the community. In regard to a daughter, her good deeds work for the elevation of the souls of her parents who have died. But it is not her function to take their place in the community. The proof for this is that she is not part of the minyan.²⁰R. Uziel, Mishpetei Uziel, OC 13.

ל״ז

37A daughter’s good deeds elevate the souls of both mother and father, but she is precluded from taking “their place in the community,” even, that is, the mother’s place. When a son says kaddish for his mother, then, is he taking her place in the community? Is a daughter’s not being part of a minyan proof that she does not take her mother’s place in the community? What has happened here is that the son’s recitation of kaddish is being understood not only as a means of elevation of the soul of the parent, but also a continuation of the father’s public role in prayer. Both daughter and mother, in that case, remain ancillary. R Uziel’s attempt to explain what he understands as their peripheral status in regard to kaddish is thus confusing and unconvincing.

ל״ח

38The former Chief Rabbi of Tel Aviv-Yaffo, R. Chaim David haLevi, writes an astounding responsa. After discussing when ben and banim refer to the masculine or the neuter and analyzing some of the earlier decisions in an unorthodox fashion, he renders a decision that a woman is prohibited from reciting kaddish even at the cemetery because it may cause “sinful thoughts to the simple-minded.” This is extended to kaddish in the synagogue. She may, however, recite the kaddish at home, in the presence of family members only. “The evil inclination,” he concludes, “is present even in a mourner’s home.”²¹R. Chaim David haLevi, Ase Lekha Rav, vol. 5 (Tel Aviv, 5743/1983) 334–36. From seventeenth century Amsterdam, where a woman said kaddish at home and not in the synagogue for practical reasons only, we have arrived three hundred years later at a place where sexual polarity enters the human question of how to structure the grieving process so as to permit equal access and opportunity to all. The Be’er Heitev, Gesher haChaim, Mishpetei Uziel and Ase Lekha Rav all manifest a restricting of the decision in the Amsterdam case. While they may agree that the outcome in the Amsterdam case was acceptable in the particular circumstances relevant to it, they are dealing with different situations and use the variant details as part of the justification of limiting the original decision. R. Bachrach’s fear of change is taken up and projected to a much greater degree than the legal reasoning explaining his judgment.

ל״ט

39But such fear of women—or fear of change clothed as such—is absent in a vocal minority of halakhic decisions. Rabbi J.B. Soloveitchik, ruled that a woman, be she even the only woman present, may say kaddish in the synagogue.²²See Joel Wolowelsky’s letter-to-the editor in HaDarom 57 (5748/1988) 157–58. See also Sara Reuger, “Kaddish from the ‘Wrong’ Side of the Mehitzah,” On Being a Jewish Feminist, ed. Susannah Heschel (NY, 1983) 177–81. That a woman may say kaddish with a group of ten or more men, even if she is the only person doing so, is consistent with R. Bachrach’s analysis of kiddush HaShem. It is interesting that Rabbi Aaron Soloveitchik, in a 1993 publication,²³R. Aaron Soloveitchik, Od Yisrael Yosef Beni Chai (Yeshivat Brisk, 1993) 100, n32. argues against the Chavot Yair on the grounds of the changing nature of the Jewish community. In positing this argument, Rav Aaron incorporates precisely the thinking of another Chicago rabbi in an earlier era, Rabbi Moshe Leib Blair.²⁴I am grateful to the late Rabbi Isaac Nadoff of Omaha, Nebraska (formerly of Chicago), for sending me the Blair responsum. Rabbi Blair was born in Dvinsk in 1897 where he received semikha. He died in Israel in 1967, having written the responum referred to here around 1950 while living in Chicago (email communication from Aviva Cayam, granddaughter of Rabbi Blair). Both responsa recognize the alienating quality of some of the teshuvot examined above, as well as the possible political repercussions of holding fast to legal abstractions which seem to ignore the fundamental Jewish concept of woman as person created in the image of God. Let us look first at the more recent responsum.

מ׳

40Rav Aaron begins by quoting the Chavot Yair and then says:

מ״א

41It seems now that some Jewish men and women are fighting for the equality of women with men in regard to aliyot for women. Since this is the case, if Orthodox rabbis will prevent a woman from reciting kaddish in a place where doing so is a possibility, the influence of Conservative and Reform rabbis will greatly increase. Therefore it is prohibited to prevent a woman [daughter] from saying kaddish.²⁵My free translation from R. Aaron Soloveitchik, op. cit.

מ״ב

42This responsum acknowledges that the Halakha can—and indeed has—granted to women the right to recite kaddish. It does not deal with the reasons offered in the earlier responsa which rule in the negative, but clearly affirms the positive possibility as being within the realm of Halakha. That halakhic authorities must rule leniently is due to the changing status of women as it has been interpreted in both Conservative and Reform Judaism. The argument seems to be: to prohibit what is permissible—and surely understandable—in the context of mourning rites, hilkhot aveilut, is to invite alienation from the tradition. Gender should not in this case be the grounds for withholding from women the time-honored way in which the state of mourning has been marked in Judaism.²⁶This notion has also influenced behavior at the graveside. It is no longer uncommon for traditional women to help shovel earth over the coffin once it has been put in place.

מ״ג

43Rabbi Blair’s responsum is more detailed than Rav Aaron’s. He begins by enumerating three reasons why a woman (he refers specifically to a daughter) should be obligated to say kaddish. First, she is obligated in all the laws of mourning of which kaddish is an integral part. Second, the reasons for saying kaddish—giving solace to the soul of the deceased and redeeming the dead from Gehenna through sanctifying God’s name—definitely apply to a woman. Rabbi Blair here uses R. Bachrach’s argument of kiddush HaShem to support his stance. And third, kaddish may be considered not only as part of the obligations of mourning, but also within the category of prayer. As such, women are not exempt but are obligated.²⁷Rabbi Blair analyzes the well-known dispute as to whether prayer is of rabbinic or biblical origin and discusses sources in the Mishna and Maimonides’ Mishne Torah. Then he brings earlier precedents, primary among which is the Amsterdam case. He proceeds to argue against the interpretation of ben as “son” rather than “offspring,” and to lament the practice of hiring a man to say kaddish in the absence of male progeny. In both cases he brings strong evidence to make his case.

מ״ד

44I want to take special note, however, of the next section of Rabbi Blair’s responsum. In it he gives an unusual and sharp interpretation of the last part of R. Bachrach’s argument in the Amsterdam case. He says: The last words of the Chavot Yair require explanation. He is speaking of a case in which the father directed that ten men should learn Torah in his home for twelve months and after the learning [each time] the daughter should say kaddish.

מ״ה

45This is truly erecting one’s own pulpit and rescinding the custom of Israel, because also in the synagogue only men, and not women, say kaddish after learning. But he is not speaking about the kaddish of eleven months that a woman says from the women’s gallery or even during the time of shiva in her home when [at least] ten men are praying. On this certainly it is inappropriate to say that it “derides rabbinic enactments.”²⁸My translation from R. Blair’s independently printed responsum, “Does a Daughter Have a Duty to Say Kaddish?” Chicago. See n24 above.

מ״ו

46The narrow focus of Rabbi Blair’s responsum is to obligate a daughter’s recitation of kaddish in the case when there are no sons. He ends a main section of his discussion by quoting Rabbi Yekutiel Greenwald’s Kol Bo Al Avelut, in which Greenwald inveighs against the practice of hiring a man to say kaddish when there is a surviving son. “Certainly,” Rabbi Blair concludes,

מ״ז

47this frivolous action [of hiring a stranger] most decidedly applies to a daughter, since she is obligated according to the law, and she is able to come to the synagogue to say kaddish. Therefore, according to my humble opinion, it is important for all rabbis of our time to explain to a daughter who is mourning a parent that since there is no son, it is upon her that the obligation falls to come to synagogue to say kaddish and not to hire anyone.²⁹Loc. Cit. The phrase “twelve months” in the Chavot Yair may refer to the practice of saying kaddish for eleven months and one day, i.e., into the twelfth month.

מ״ח

48But the broader center of interest is the saying of kaddish by a woman—spouse, daughter, mother or sister—even in cases where she is not the sole mourner. Rabbi Blair summarizes his position in four brief statements. He says:

מ״ט

49It is not my intention to be unduly stringent in regard to the mourning of a daughter, but merely to uphold the law that the daughter is obligated to recite kaddish. On the contrary, in my opinion her obligatory recitation is a leniency, and in the laws of mourning the more lenient view prevails.

נ׳

50Also, if there will not be ten women in the women’s section to answer “Amen,” this also would not preclude her saying kaddish, since the law (dine) is that all those who say kaddish should recite it together in unison; if so, the “Amen” with which the men respond applies as well to her kaddish.

נ״א

51And when it is said that custom (minhag) erases law (halakha), this is only in the case of a communal enactment (takanat tzibur), and we do not find such an enactment regarding the circumstance of a daughter’s saying kaddish when there is no son.

נ״ב

52I want to emphasize here to the rabbis of our country who oppose this legal decision (pesak halakha) that in the time of the Geonim when the custom (minhag) to say kaddish began, many sages of Israel, such as Rav Hai Gaon, were opposed. And what do we see now? That the kaddish is included in the general category of mourning, and is as important in mourning as a commandment of biblical origin (mitzva de’oraita). The kaddish brings many male Jews to the synagogue and causes them to become more involved in Judaism. This will occur also with female Jews; we would bring them closer to Jewish life and to our holy Torah.³⁰See n28 above.

נ״ג

53Rabbi Blair is clearly concerned with the possible alienation of women from the tradition.

נ״ד

54Women whose attempts to cope with grief and honor their deceased were stymied due to “custom” or halakhic cavil (“if there not be ten women”) ought rather to be encouraged to participate in the long-established and accepted Jewish way of mourning, the recitation of kaddish. The identification with the community of Israel at a time of personal loss can only strengthen one’s bonds to Judaism.

נ״ה

55By citing the case of Rav Hai Gaon, Rabbi Blair indicates that movement, evolution and development are intrinsic to the halakhic process, the nature of which is to apply eternal ideals and principles within specific historical contexts. Rav Hai Gaon’s opposition to kaddish did not alter its eventual inclusion as part of mourning. Neither should contemporary opposition to women saying kaddish deter its establishment, if not as halakhic obligation in the manner Rabbi Blair would prefer, at the very least as strongly encouraged social and religious custom.³¹See Simcha Fishbane, “‘In Any Case There Are No Sinful Thoughts’—The Role and Status of Women in Jewish Law as Expressed in the Arukh Hashulhan,” Judaism 42.4 (Fall, 1993): 492–503. Dr. Tamar Ross, writing in the same journal, seems to make a similar claim as to the workings of the halakhic process. But in her essay, “Can the Demand for Change in the Status of Women be Halakhically Legitimized?” (478–92), Ross recognizes the legitimacy of change only in regard to the individual woman; women qua women, i.e., as a group, should not pressure for halakhic change. This is, I believe, quite an extraordinary suggestion, especially when coupled with Ross’ claim that the unresolved problem of agunot “reflects the continuing tension between the Law as it is, and the world as it is, and not any bias or animosity by male poskim against Jewish women” (487). The naivete expressed here was also manifested in Ross’ plenary address at the opening of the Second International Conference on Orthodoxy and Feminism, Feb. 15, 1998. Compare the analysis in Zvi Zohar, “Traditional Flexibility and the Modern Strictness: Two Halakhic Positions on Women’s Suffrage” Sephardi and Middle Eastern Jewries, ed. Harvey E. Goldberg (Indiana University Press, 1996) 119–33 and Nissan Rubin, “Coping with the Value of the pidyon ha’ben Payment in Rabbinic Literature—An Example of a Social Change Process” Jewish History 10.1 (Spring, 1996): 39–62.

נ״ו

56Expanding the logic implicit in the Amsterdam case—if a woman can say kaddish at home, it is understood that she most certainly can and should, say kaddish in the synagogue—is supported by another discussion of the issue in an article by Rabbi Yehuda Herzl Henkin. R. Henkin writes:

נ״ז

57Certainly the reciting of kaddish by a woman is not a difficulty from the responsa of the Shevut Yaacov and Knesset Yechezkel, who wrote that a woman may not recite kaddish at all in the synagogue, since they wrote only according to their custom…. [emphasis mine]³²Rabbi Yehuda Herzl Henkin, “The Reciting of Kaddish by a Woman” (Hebrew) HaDarom 54 (5745/1985) 34–38, subsequently republished in Responsa Bnei Banim, vol. 2, responsum 7. Esp. page 43, paragraph two and n1. This passage is from page 43.

נ״ח

58Rabbi Henkin makes clear reference to social custom as a significant factor in determining the acceptability or discouraging of behavior that is permissible, but may not, in certain historical periods, have been widespread. Rabbi Henkin’s discussion is of especial note because it engendered a rather sharp response in an essay written by R. Reuven Fink³³R. Reuven Fink, “The Recital of Kaddish by Women,” Journal of Halacha and Contemporary Society (Spring, 1996): 23–37. See R. Yehuda Henkin’s letter in response, in the Journal of Halacha (Fall, 1997): 97–102 and R. Fink’s rebuttal of R. Henkin’s letter, 107–108. While the original pesak was written around 1948 by Rabbi Yosef Eliyahu Henkin, the article in HaDarom³⁴HaDarom, ibid. written by Rav Henkin’s grandson, Rabbi Yehuda Herzl Henkin, is a clear exposition of the original analysis. In an as yet unpublished volume, R. Yehuda Henkin responds to the criticisms of Rabbi Fink.³⁵Originally written as a letter responding to R. Fink’s rebuttal letter (see n33 above), the Journal of Halacha did not agree to publish it. The positions stated and their rebuttals illustrate well the tug of war within halakhic circles in regard to what seems a minor issue—a woman coming to shul to say kaddish. As we shall see, the sensitivity of Rabbis J.B. Soloveitchik, Aaron Soloveitchik, and Moshe Leib Blair, Yosef Henkin, and Yehuda Henkin is quashed by current opinions, which seem to regard the “freedom” to grieve given to women as a grave threat to the tradition.³⁶In IM, OC 5:12, Rav Moshe Feinstein mentions, as an aside in response to another issue altogether, that “…in every generation it has been customary that sometimes… a woman who is a mourner will come to shul to say kaddish….” Thus, that a woman could—and that women did—recite kaddish is here a given. Why this question, at this time, has come to arouse such intense emotional responses is an important issue. It seems as if Rabbi Fink, Rabbi Lau and others feel acutely the gauntlet of challenges feminism has posed to Halakha. It is always easier to be strict. But, a stringent position lacks both common sense and evidence of social responsibility when the tradition is so clear. The motivation seems to be, “We won’t be like them”; rather than “Let’s continue to accommodate the needs of women as mourners.” Rabbi Fink, in fact, ends his analysis by stating:

נ״ט

59It would therefore seem that an attempt to ‘improve’ or alter our sacred traditions… [is] both pernicious and dangerous…. Tampering with the synagogue’s customary practices is clearly a step fraught with great danger.³⁷Fink, 37.

ס׳

60What are Rabbi Fink’s objections? First, when women say kaddish in the ezrat nashim, they are not saying it with a minyan. As various halakhic sources demonstrably illustrate, the ezrat nashim must be regarded as an extension of the male sanctuary. To say otherwise is to ban all traditional women who come to daven, hear the weekly Torah reading, and occasionally say birkhat hagomel³⁸See Rochelle L. Millen, “Birkhat Ha-Gomel: Cultural Context and Halakhic Practice,” Judaism 43.3 (Summer, 1994) and “Communications,” Judaism 44.1 (Winter, 1995). Also Henoch Goldberg, “The Obligation of Women to Recite Birkhat Ha-Gomel,” (Hebrew) Shana beShana (Jerusalem: Heichal Shlomo, 1990) 231–39. Rabbi Blair also took note of this question. to the land of Oz. To say that women come to shul but are not in shul is to forever exclude all females from the prayer community of klal Yisrael. There is a patent absurdity in this claim, which through legal abstraction denies the reality of real people, real men and women, and relegates the synagogue to a most exclusive men’s club. Fink’s claim is halakhic cavil. The second criticism is that Rabbi Yehuda Henkin gives inadequate support for his interpretation of his grandfather’s pesak. This objection may be dismissed in an outright manner, as Fink does not even refer to R. Yosef Henkin’s original discussion in his footnotes.³⁹Fink, 34. But let us respond nonetheless. What R. Yosef Henkin argues is that the early responsa which prohibited women from saying kaddish, especially in shul, were based on synagogue practice of the time. He describes the custom which predominated in the time both of the Rishonim and Achronim. Prevailing synagogue practice was for one mourner to recite kaddish on behalf of all mourners present and to stand at the prayer leader’s table while doing so. A woman could not be this representative in the minyan. Current custom, R. Yosef Henkin continued to argue, is for each person to say kaddish in his place, a place which may surely also be, then, her place. R. Fink’s language, “If he could demonstrate that when the divisions against a woman saying kaddish were rendered, the local custom was for only one person only [sic] to say the kaddish, he might then have a tenable argument,”⁴⁰Loc. Cit. is sharp, brusque, and unscholarly. If he wishes to invalidate R. Henkin’s claim about the change in custom, he must bring evidence to the contrary. In addition, contrary to R. Fink’s interpretation, R. Henkin does not say that the earlier negative decisions were based “solely”⁴¹Fink, 37. on the evolution of an altered custom. Surely other factors were involved, including different social attitudes towards women. But they are not the focus of R. Henkin’s discussion. R. Fink’s claim of exclusive causation is thus both illegitimate and simplistic.⁴²See for instance, Jonathan Sacks, ed., Orthodoxy Confronts Modernity (New Jersey: Ktav, 1991), as well as Jacob Katz, Tradition and Crisis (NY: Free Press, 1961) and The Shabbes Goy (JPS, 1989). In addition were one to go through the complete responsa of the Shevut Yaakov and Knesset Yechezkel in regard to kaddish quoted earlier in this article, one would immediately notice that not only do they oppose a daughter’s reciting kaddish in shul, but they also analyze the hierarchy of precedence as to which one man among the mourners should say kaddish for all the mourners.⁴³Cf. Rabbi Yehuda Henkin’s forth-coming book Equality Lost (Jerusalem: Urim Publications, 1998). I thank Urim Publications for sharing this manuscript with me. Clearly this supports R. Henkin’s description of earlier synagogue practice.

ס״א

61It is to be noted as well that this very change in custom described by R. Henkin indicates, very simply, that changes in religious observance, custom, ritual—even Halakha—do occur. They occur all the time. R. Fink’s notion that recent discussions of women and kaddish camouflage an attempt to “improve” our traditions is simply a distorted reading of the very halakhic processes he claims to wish to protect. Customary practices today will not necessarily be customary practices tomorrow.

ס״ב

62R. Fink’s third criticism of R. Henkin, that women reciting kaddish in the women’s gallery along with male mourners is not accepted among sephardim is irrelevant. When my husband taught sephardi high school girls in Netivot in 1976–77, the girls neither took lulav and etrog nor sat in the sukka. That “all our women are chashuvot” is stated by the Rama, not R. Yosef Caro.⁴⁴See Shulchan Arukh, Hilkhot Pesach 472: 4 on which the Rama states “all our women are called chashuvot.” Indeed, the differences between women’s involvement in mitzvot in sephardi and ashkenazi communities is testimony to the impact of cultural context on the corpus of Halakha, the very aspect of halakhic development against which R. Fink is arguing.

ס״ג

63It is of some interest that R. Yosef Henkin makes the same point about kaddish made by Rabbi Blair and implied by Rabbi Aaron Soloveitchik:

ס״ד

64It is known that were it not for kaddish, many would refrain from teaching prayer to their sons and would not come to synagogue. When they come because of kaddish they also come a bit closer to Judaism the rest of the year, and for this reason itself one should not rebuff the young woman (na’ara) either, since it fosters closeness to Judaism.⁴⁵Kitvei haGri”a Henkin, vol. 2, 6. Quoted in R. Yehuda Herzl Henkin’s manuscript.

ס״ה

65An overview of the recent halakhic literature finds poskim for the most part, adopting the restrictive interpretations of the Amsterdam case. Although a responsum of Rabbi Yitzchak Weiss refers to the practice of female mourners coming to shul to recite kaddish,⁴⁶R. Yitzchak Weiss, Responsa Minchat Yitzchak 1:133. See also n35 above. the legal literature is predominantly negative. This is so despite the increase of this practice in many synagogues. Were kaddish not being recited by women, legal decisors would not have to inveigh against its being said in a female voice. This voice is being heard, yet the attempts to silence it are powerful. The chorus of nay-sayers includes R. Meshulam Roth,⁴⁷Responsa Kol haMevaser 2:44. R. Yitzchak Yaacov Fuchs,⁴⁸Halikhot Bat Yisrael (Jerusalem, 1983) 157. R. Yisrael Meir Lau,⁴⁹Sefer Yachel Yisrael, vol. 2 (5752/1992) 478–80, n90. R. Eliezer Waldenberg,⁵⁰Responsa Tzitz Eliezer 14:7. R. Moshe haLevi Sternberg,⁵¹Hilkhot Nashim (Jerusalem, 1987) 133–34. R. David Auerbach,⁵²Halikhot Beta (Jerusalem, 1983) 72–73. and R. Reuven Fink⁵³See n33 above. (as analyzed above). Those who accept the female voice of kaddish (as discussed in specific responsa) are R. Moshe Leib Blair, R. Aaron Soloveitchik, R. Yehuda Herzl Henkin, and an earlier posek, R. Eliezer Zalman Grayefsky.⁵⁴Cited in David Golinkin, “Women and the Mourner’s Kaddish” (Hebrew), Responsa of the Va’ad Halakha of the Rabbinical Assembly of Israel, vol. 3 (5748/5749) 76–77. Grayefsky, originally from eastern Europe, died in England in 1899. The discussion on kaddish is in his volume Kaddish le’Olam, 11–12. Rabbi J.B. Soloveitchik specifically permitted a woman to recite kaddish even if she is the only person in the congregation to do so.⁵⁵See n22 above.

ס״ו

66As I read through the various texts which restrict woman, seeing her as sexual object or by nature so private that kaddish is an inappropriate public gesture, the fear of women as autonomous, independent, competent persons is a persistent—and resonating—undercurrent. Women are accountants, lab technicians, genetic researchers, academics, lawyers, teachers, executives, physicians, scientists, mothers and care-givers. Women can do anything, but ought not to say kaddish in shul—even if Halakha says women can do so? This is anomalous and unacceptable. It is using seventeenth-century circumstance to adjudicate for women of our day.

ס״ז

67Legal change within religious traditions is by nature a slow, conservative process. Ultimately what seems a ponderous pace is protective of tradition; finding the fit of eternal principles and historical context is an on-going, pull and push series of interactive and interdependence actions.⁵⁶See Gershom Scholem, “Revelation and Tradition as Religious Categories in Judaism,” The Messianic Idea in Judaism (NY: Schocken, 1971) 282–304. It is clear that in the case of the female voice of kaddish, roadblocks, however inappropriate, are still being erected.

ס״ח

68When Sarah Schenirer decided in 1914 to clothe the Jewish girls and women of Cracow in the “spiritual garments” of Torah learning, her efforts were endorsed by the Belzer rebbe and later by the Chafetz Chaim.⁵⁷Deborah Weissman, “Bais Yaakov: A Historical Model for Jewish Feminists,” The Jewish Woman: New Perspectives, ed. Elizabeth Koltun (NY: Schocken, 1976) 139–49. In his famous responsum in answer to critics on the religious right, the Chafetz Chaim argued that changing social conditions allowed the community to disregard earlier prohibitions against women learning Torah. The female voice of Torah study was now, he proclaimed, a mitzva.⁵⁸An excerpt of the responsum of the Chafetz Chaim appears in Ha‘Isha vehaMitzvot (Hebrew), ed. Elyakim Ellinson (Jerusalem: Torah Dept., WZO, 1979) 158. Likewise, it is neither shtut nor chukha telula, derogatory terms meaning “foolishness,” “like a joke,” “a mockery,” descriptions used by an early posek⁵⁹The posek is the Beit Lechem Yehuda, who brings this quote from the Knesset Yechezkel. See R. Yekutiel Greenwald, Kol Bo al Avelut (Feldheim, 1973) 375, n33. to describe a daughter’s recitation of kaddish.

ס״ט

69What can we see from this survey of the responsa? Until recently, when accretions having to do with sexuality crept into the literature—an obvious interpolation with the aim of precluding female participation when no other grounds existed—it was clear that of course women could, and did, say kaddish. There is obvious precedent based on the understanding of kaddish as an essential part of the mourning process as well as an effort to elevate the soul of the deceased. That women could and did say kaddish does not diminish the fact that such recitation was always an exception to the social norm. Despite Rabbi Blair’s emphasis on “duty,” women did not take on the obligation of kaddish as was done in the case of teki’at shofar.⁶⁰See Arlene Pianko, “Women and the Shofar,” Tradition 14.4 (Fall, 1974): 53–63. However, this is changing as the practice becomes increasingly prevalent. The responsa continued and continue to deal with the issue on an ad hoc basis.

ע׳

70The underlying struggle in the responsa has always been the tension between woman as mourner and the public arena of prayer. As in all legal cases, both positive and negative decisions create social realities and patterns of thinking which are then difficult to alter. In a general society where women were, in some sense, neither seen nor heard, the Halakha, though possessing the adaptability, was not ready to deal with female experience on a broad scale.⁶¹This is, of course, still the case in certain Jewish circles. See, for instance, Tova Reich’s description of her mother’s funeral in Israel and her treatment as a daughter of the deceased in “My Mother, My Muse,” in the “Hers” column, The New York Times Magazine (Nov. 6, 1988). Another example is in “The New Look of Liberalism on the Court” by Jeffrey Rosen in The New York Times Magazine (Oct. 5, 1997) where Supreme Court Justice Ruth Bader Ginsburg refers to daughters being prohibited from saying kaddish. Piecemeal changes, spurred by specific questions and situations, occurred. Social and cultural factors became obstacles to a more generous, and legitimate, interpretation of the texts. To state the obvious, woman’s place in both general and Jewish society, and man’s uncomfortability with woman as a public person, autonomous and in charge of herself, affect the rendering of religious law, especially when—and perhaps because—the decision-making body is all-male.

ע״א

71Standing from within the tradition, and fully cognizant of the lag between social reality and changes in religious law, it becomes crucial to identify areas of opportunity and equality extended to female experience, even while more fundamental shifts within the tradition may be occurring. Upon knowledge of these opportunities depends the continuing development of a new social reality, one in which women as a matter of course are included in kaddish. Some responsa, as noted, respect and even applaud the need for and appropriateness of these prospects. In the face of continued narrowness and rigid interpretations of the Amsterdam case, the authors of these responsa are courageous. They acknowledge the role of history in the development of Halakha and the absolute personhood of woman, a personhood not to be compromised by demanding women submit themselves to formulations deemed anachronistic. While change derives from resolute, bold decisors, it also emanates from the individuals and groups who alter their practices. When women will make kaddish a sine qua non aspect of observance of mourning, then, much as in the case of shofar, its recitation will become accepted—and expected—practice.

ע״ב

72During the monarchy, the valley was the site of the cult of Moloch, where children were burned. It then came to refer to the place of torment and punishment reserved for the wicked after death.