Is Egalitarianism Heresy? Rethinking Gender on the Margins of Judaism

". . . every church is orthodox to itself."

John Locke, "A Letter on Tolerance"

"In the case of a conflict between respect for human
dignity and a rabbinic law, one must violate the law
even if it involves the performance of a positive act."

David Novak, Natural Law in Judaism

The Israeli scientist, philosopher, and gadfly Yeshayahu Leibowitz began his short but insightful essay, "The Status of Women: Halakha and Meta-Halakha," with an offhand yet prophetic comment: "The question of Women and Judaism is more crucial today than all the political problems of the people and its state."¹ Given the magnitude of the problems facing the Jewish people and its state in 1980, when Leibowitz wrote these words, and the fact that the status of women in Judaism, especially in Israel, was then barely on the radar screen outside of Reform and feminist Jewish circles (the Jewish Theological Seminary of America only began admitting women to rabbinical school in 1982, and Women of the Wall in Israel would come about only a few years later), this is a remarkable claim in itself, and all the more so because, more than twenty years later, it has proved to be true.² At present, every Jewish movement in America views this problem as central to its identity. The emergence of the Jewish Orthodox Feminist Alliance (JOFA) has begun to seriously address the status of women in Orthodox halakhah and culture. In Conservative Judaism, the discussion has extended beyond the formal status of women in halakhah and moved to the question of gender more generally, igniting an impassioned discussion about sexual orientation and the ordination of gay and lesbian rabbis and cantors.³ In Jewish communities committed to a halakhic process, and here I include Conservative Judaism, the discussion is almost always centered around halakhic debate, legal precedent, and the sharp distinctions between behaviors that are halakhically mandated and those that are merely a function of social conditions (minhag).⁴ I want to suggest another alternative that, while rooted in precedent, is not bound by the confines of halakhic discourse. I will focus on the Conservative Movement, largely because I think Conservative jurisprudential thinking lends itself to this meta-halakhic exploration.⁵ Whether this is also the case for Modern Orthodoxy will be determined by its own judicial leadership.⁶

My underlying assumption is that in the contemporary debate on women's status in Jewish law and ritual, egalitarianism, however construed, should be viewed as hypernomian and not as a legal leniency.⁷ I call this hypernomianism "heretical,"⁸ because it involves taking a step outside the halakhah in order to fulfill it, challenging the rabbinic notion that "God dwells solely within the four cubits of the law."⁹ To include women as equal partners in the ritual and existential covenantal relationship with God is an act of supererogation, both for women and for men. It is not a matter of social necessity, that is, a compromise, given the fallen state of contemporary gender politics, but a correction to the body of Jewish law in light of the way gender politics has enlightened traditional societies and their legal systems.

While Conservative Judaism and Modern Orthodoxy have made great strides over the past twenty-five years in dealing with this issue in the halakhic context (the Reform and Reconstructionist movements have largely circumvented the dilemma by defining themselves as non- and post-halakhic respectively), it is my distinct impression that much more needs to be done in terms of philosophical and theological reflection. In choosing its path, Conservative Judaism has largely acted out of its traditional instincts, analyzing gender difference along legislative lines without adequately questioning whether this is the only available alternative.¹⁰ In asking for philosophical and theological reflection, I do not mean to distinguish philosophy or theology from halakhah, or, to borrow Hayyim Nahman Bialik's formulation, agadah from halakhah; rather, in the spirit of Maimonides' Sefer hamada (Book of Knowledge), I refer to the construction of a metaphysical or at least a meta-halakhic world within which halakhic discourse can function.¹¹

The impetus...