Hora’at Sha’ah and The Real World Rabbinate

My friend, colleague, former chavruta, and one-time intern at The Stanton Street Shul, Rabbi Akiva Herzfeld was just recognized by The Forward as one of America’s Most Inspiring Rabbis. Usually these designations provide recognition for a job well done, but in R. Herzfeld’s case there has been additional internet chatter as to how he came to deserve this title.

According to a nomination letter, Rabbi Alice R. Goldfinger writes that R. Herzfeld welcomed her into his community during a trying period, taking unusual measures for an Orthodox Rabbi.

“I cannot drive to the synagogue I served as rabbi for 10 years. It is about 15 miles from my home in Falmouth, Maine. I slipped on the ice outside that synagogue on December 13, 2009, and sustained a traumatic brain injury. I will most likely never be able to work as a rabbi again. My former congregation didn’t know what to do with me and my two kids (I am a single mom), so they didn’t do anything. But I still need to say Kaddish for my mother, who died when I was 15. There is only one Reform synagogue in town, the one I served. Rabbi Herzfeld is Orthodox, but he opened his shul’s door, heart and mind. He suggested I lead the Kabbalat Shabbat at his shul and say Kaddish for my mother. My children, who aren’t comfortable with Orthodoxy after attending Orthodox public schools during a sabbatical in Jerusalem, stood with me. After the service Rabbi Herzfeld said, “I want you to know that I do not believe women should lead worship with men present. But one of us had to be uncomfortable. Why should it be you and not me?” He can’t repair my broken brain, but Rabbi Herzfeld brought healing to my broken heart.” [Emphasis added]

I have seen discussions Facebook and rabbinic email lists discussing the propriety of R. Herzfeld’s decision to allow a woman to lead Kabbalat Shabbat at his shul. I have also noticed that most of these discussions miss the crucial point, that a community Rabbi has the very right if not responsibility to make such calls for his synagogue. There is no synagogue of any denomination which observes Judaism to the ideal standards of the Rabbi. Without exception, every Rabbi has to choose which halakhic battles to fight and which compromises to embrace for the greater good of his kehillah. These are judgement calls which may provoke disagreement amongst colleagues, but are not necessarily invalid.

I’d like to offer two such examples from my own experience at The Stanton Street Shul. During my first or second year a gentleman arrived at shul on a Friday in time for minha. As he was the first one to arrive1 we began to shmooze and he volunteered that he was not born Jewish and this was the first time he had entered an Orthodox synagogue. Based on this information, I concluded that this person would not have had an Orthodox conversion and was almost certainly not halakhically Jewish2 and thus ineligible to count for a minyan.

Naturally when the time came to say minha we had exactly 10 people in the room including myself and our visitor which put me in an awkward position. Knowing that we were short of a minyan we would not be permitted to recite a full repitation of the ‘amida. On the other hand, I thought it would be a chillul Hashem for this person’s first experience in an Orthodox synagogue be publicly embarrassed with declaration that he is not in fact Jewish.

My “game time” decision was to announce that since it was close to sunset we would be daven a heichi keddusha in which there was no repetition, although we did say kaddish and keddusha. My reasoning at the time was given the situation how could I best minimize violating religious and personal commandments. This was by no means ideal, and saying kaddish and keddusha in such a situation was at odds with the letter of the law (B. Berachot 21b). However in this case I considered this to be the best of a bad situation, choosing between not following certain rabbinic laws or publicly humiliating an individual.3

After Shabbat I consulted with several of my rabbinic mentors, all of whom confirmed that my decision was in fact legitimate if not the best available. Furthermore, I was very gratified to read in Dr. Jonathan Boyarin’s ethnography of The Stanton Street Shul that the long time predecessor of the shul ruled in the exact same way when a similar situation arose in the morning minyan.

In a related, and far more common, extenuating circumstance in my shul was when only nine people would show up to the service. The synagogue practice when I had arrived was to open the ark and count the ark itself as “the tenth man.” The reasons I was told was that “it’s ok in an emergency,” “R. Moshe Feinstein allowed it,” and “we’ve always done it.” Of these three arguments I was most sympathetic to the “emergency” – I’ve never been convinced by “we’ve always done it” and I found no evidence in Iggrot Moshe to support the opinion attributed to R. Moshe Feinstein.

Unlike allowing a woman leading Kabbalat Shabbat, counting an ark for the minyan is explicitly rejected in the Talmud (B. Berachot 47b-48a). With a dozen or so other daily minyanim in the neighborhood I did not consider the truancy of individuals to constitute a sufficient enough emergency to redefine the halakhic parameters for a minyan.4

The point is that these are the sorts of judgement calls which all community rabbis must face from time to time. This in my opinion is where the true art and skill of psak halakhah comes to play – how does one best implement halakhah in order to sastisfy the needs of the situation. R. Herzfeld’s decision to allow a woman to lead Kabbalat Shabbat may have been valid for his community but for many others it could not even be considered as an option.

A Rav needs to know his constituency in order to determine what are the options from which he can choose. If he has been well trained, he too can take a challenging, imperfect, and problematic situation and turn it into an inspirational opportunity.

  1. In retrospect the fact that he came on time ought to have been my first warning.
  2. My instinct was correct as he had converted Reconstructionist. Denominational value judgements aside, Reconstructionist Judaism does not believe in “mitzvot” as “divine commandments” which would make the convert’s halakhic requirement of “accepting the yoke of the commandments” to be impossible.
  3. In other communities there may have been more options. The people who attended that particular service were, to put it diplomatically, not attuned to nuance and as it was I was yelled at from the back for not doing a full repetition.
  4. In two particularly amusing exchanges, I once said that there is a better halakhic rationale for counting women in a minyan than the ark for as misogynistic as Judaism may seem at time, we still consider a woman to be more of a person than an inanimate object. Since we are not about to count women for a minyan, we cannot count the ark either. On another occasion I said that it would never happen since if they were about to count the ark for the minyan I would leave. One elderly gentleman asked, “What if we had nine people, plus the aron, plus you.” I said, “In that case I would stay.” He thought about it for a moment before realizing, “Hey! That’s a Minyan!” Good times.

Ep. 95 Halakhic Process 15 – Emergency Rulings / Hora’at Sha’ah

Rabbi Yuter’s Halakhic Process series confronts examples of Jewish law adapting to extenuating circumstances. In particular, this shiur explores the three halakhic idioms of “et la’asot”, “hora’at sha’ah,” and “sha’at hadechak.”

Halakhic Process 15 – Emergency Rulings Sources (PDF)

Halakhic Process 15 – Emergency Rulings