Legal-Religious Status of the Jewish Female
Hebrew is a gendered language in which women are or may be included in masculine plural address and masculine plural verbs. When the address in the Torah is “man or woman” (ish o isha) or “a person” (adam or nefesh), and sometimes in the plural, inclusion of women (sg. isha) can be assumed. When the Torah addresses in unspecified masculine singular language it is assumed that women are included unless they are exempted on grounds of physiology or by particular hermeneutic methods which depend chiefly upon the gendered aspects of the language, such as singular and plural masculine pronominal suffixes which are the norm, and word choice in address such as ish. These include but are not limited to “the sons of Israel but not the daughters of Israel” (for benei Yisrael); “the sons of Aaron but not the daughters of Aaron” (for benei aharon); “your son/s but not your daughter/s” (for banekha or beneikhem); “you [masculine]” (ata or atem) and the like. It should be noted that word pairs such as man/woman (ish/isha), you (masculine and feminine) (ata/at) and young man/young woman (na’ar/na’ara) differ only in the final syllable for the feminine form. In the final word pair, the feminine is, in most places in the Bible, indicated only by vocalization but not by spelling. There is at least one occurrence of the feminine at in the Bible used with masculine verbs. It is possible linguistically that joint address in the singular form would take the more common, masculine form and be followed by the more common, masculine verb forms and pronominal suffixes. If this is not the case, the female spouse is left out of something as basic as the Sabbath Kiddush at least in the marital home: “Remember (masculine singular) the Sabbath day to sanctify it … Do no work, you (ata), and your son, and your daughter, your male slave, and your maidservant and your cattle and the stranger within your gate …”
The rabbinic sages were among the closest readers of the biblical text and noted any changes in address, verb form and unusual syntax. Hermeneutic analysis of such anomalies forms the basis of the legal exegesis found in the Midreshei Halakhah (Midrashim of the halakhah). Most scholars regard these works (Mekhiltas, Sifra, Sifrei Ba-Midbar, Sifrei Zuta and Sifrei Devarim) as secondary works of the tannaitic period deriving much of their laws from the Mishnah itself or from actual practice. It is unlikely that these hermeneutic works actually generated halakhah or discovered it. Rather, they justify halakhah or common practice by connecting them to words and phrases in the biblical verses using various hermeneutic methods, grammar and syntax for explicating verses (middot), thus giving the laws greater authority because of their biblical basis. A close examination of Midreshei Halakhah demonstrates lack of rigorous intellectual integrity in that the same middot may be used in contradictory ways (e.g. here to include other categories, elsewhere to exclude them), questionable applications of hermeneutic rules, unsystematic application of the rules and strict application of grammar rules to certain situations—all of which indicate that the sages knew the desired goal because it was already in practice or codified. The fact that a tremendous number of laws derived in this manner are connected with gender issues has great impact on the legal/religious status of women. Although the Midreshei Halakhah are generally not the subject of concentrated study either in academic or rabbinic settings, they are commonly quoted in the Talmud and serve as support for, or the basis of, laws which are codified. It is not surprising that the sages, under profound influence of Hellenism and its very negative attitude to women, diligently excluded women from religious obligation wherever possible by relying on questionable applications of hermeneutic rules, often contrary to the simple meaning of the biblical verses. Because of the gendered nature of the Hebrew language, it is unclear whether divine revelation included or perhaps may very well not have included specific and separate mention of women in reference to religious obligation in each instance. On the other hand, the rabbinic sages interpreted the Bible through their Hellenized eyes, excluding and limiting women’s participation in religious ritual in both the private and public spheres, particularly the most valued of all, Talmud Torah (Torah Study).
In general, the following sections follow the order in the Encyclopedia Talmudit, Isha, with the addition of my analysis and interpretation [Tirzah Meacham (leBeit Yoreh)].
Women are obligated by the sages to observe all the negative commandments (Mishnah Kiddushin 1:7) except the prohibitions concerning removal of facial hair/beard/sidelocks because these were directed to men, who normally have facial hair (Leviticus 19:27, Mishnah Kiddushin 1:7), and the prohibition concerning contracting corpse impurity directed to priests (Leviticus 21:5 “the sons of Aaron but not daughters of Aaron” and BT Kiddushin 35b). A number of other provisions do not apply to women; for example, those connected with the uncircumcised eating the Passover sacrifice (Exodus 12:58), because circumcision does not apply to females; prohibitions concerning false testimony, because women are ineligible witnesses (Mishnah Niddah 6:45; Sifrei Devarim 190:2—based on the gender of the word shenei; Rambam [Moses Maimonides, 1138–1204], Edut 9:1) except in a very limited number of situations required for clarification of a situation rather than actual testimony; prohibitions directed to judges, because women cannot be judges (Mishnah Niddah 6:4 see below); prohibitions concerning priests and the Temple duties, because women are prohibited from serving in the Temple (on the basis of “the sons of Aaron but not the daughters of Aaron”); prohibitions concerning behavior in a war of choice, as women are exempt from war (Sifrei Devarim 190:19) except an obligatory war, milhemet mitzvah (Mishnah Sotah 8:7; Rambam, Melakhim 7:4).
Women were made equal to men in terms of punishments for sin in the Torah itself (Numbers 5:6; BT Kiddushin 35a; Rambam, Issurei Bi’ah 17:5), with the exception of the half slave-half free woman who while designated to a man commits adultery. There are some discussions centering around the fact that the punishments may not be the same for sexual prohibitions because the sexual act differs for males and females. (The Talmud defines the male sexual act as active and the female sexual act as passive whereas with other sins the act is the same for both males and females.) This necessitated special midrashic inclusions in various ways in order to include women in karet or sacrifices or flogging for specific sexual transgressions. The same difficulty was encountered for women prohibited to priests (zonah and halalah) because the sin was not the same for all of Israel as it was limited to prohibited marriages with priests. Daughters and wives of priests did not have the same obligations in reference to avoiding impurity, again on the basis of “benei aharon.” Another area which required special midrashic inclusion of women for equality in punishment was the prohibition against exchanging sacrificial animals (Leviticus 27:10). Those prohibitions which do not carry a punishment of flogging because they do not include an actual act are also applicable to women on the basis of Numbers 5:6 which has the inclusive word adam. Women are also obligated in the prohibitions which come from a positive commandment, for example, the prohibition to sell produce from the seventh year, because the positive mitzvah does not resemble tefillin (phylacteries) (Encyclopedia Talmudit, Isha 245:1). The discussions concerning whether a woman is obligated in resting on the Sabbath, especially since it is closely connected with the prohibition of not doing work, tend to be formal discussions among the medieval authorities. It makes sense to exclude women from those laws which are connected directly to male physiology, such as circumcision and facial hair. Excluding women from Temple ritual may indicate a different agenda.
There are many mitzvot which require an action but not during a specific time frame, such as giving charity, mezuzah, return of a lost object, sending away the mother bird before taking the eggs or chicks, making a rail around a flat roof, etc. These mitzvot are derived from the obligation of revering one’s parents stated in Leviticus 19:3, which opens with the word ish (a man) but is followed by a verb in second-person masculine plural (tira’u) which is used as the basis to include women according to BT Kiddushin 29a, 34b. Another option of learning the obligation of women to non-time-bound mitzvot is from tefillin. Tefillin represent a positive time-bound mitzvah from which women are exempt. Because a special exegesis is needed to exempt them from positive time-bound mitzvot, women are assumed to be obligated in positive non-time-bound mitzvot (BT Kiddushin 35a). Tosafot Kiddushin 35a relates to the exemption of women from Talmud Torah and redemption of the firstborn (Exodus 34:20) which are two verses coming together to create an exclusion, here excluding women from obligation in positive time-bound mitzvot (Rambam, Talmud Torah 1:1; Bikkurim 11:2; Shulhan Arukh Y.D. 246:6 and 305:2).
Talmud Torah and redemption of the firstborn are not actually time-bound mitzvot because the obligation is ongoing and continuous, but women are exempt because of the rabbinic gendered reading of Deuteronomy 11:19, “teach them to your sons (banekha) but not your daughters,” where the verb “teach” is understood as also being in a different verb pattern (pa’al) meaning “learn,” so that anyone who is not obligated to be taught by others is not obligated to learn by herself or to teach others. Similarly, “the first born of your sons (banekha) but not your daughters,” is understood as meaning that, since others are not obligated to redeem her, she is not obligated to redeem herself or others (BT Kiddushin 29b).
One major issue in this category is the dispute concerning the obligation of zizit, ritual fringes. For those who claimed that zizit are also garments to be worn at night, women may be obligated because it is not time-bound. Rambam (Zizit 3:9) and Shulhan Arukh (O.H. 17:2) concluded that there is no obligation to wear zizit at night and therefore exempted women. This issue became a major problem for many Orthodox rabbis when women began wearing prayer shawls. Some attempted to block this spiritual expression by claiming that the prayer shawl was a man’s garment even after obviously feminine prayer shawls were marketed, while others attempted to understand the exemption (that women were peturot) as a prohibition (asurot) against wearing zizit. There was also a discussion in BT Eruvin 96b about whether tefillin were to be worn at night and on the Sabbath and festivals. For those who held that position, tefillin were in the category of non-time-bound mitzvot in which women were obligated but that did not become normative halakhah (Rambam, Tefillin 4:13; Shulhan Arukh O.H. 38:3). The same discussion concerning whether the exemption constitutes a prohibition found for zizit was made in reference to tefillin.
Another odd exception to the rule that women are obligated in non-time-bound mitzvot is the obligation to procreate (periyyah u-reviyyah). By understanding Genesis 1:28 “Be fruitful and multiply and fill the Earth and subdue it” as meaning that subduing (vekavshuha) is a male act but not a female act, procreation is considered a male mitzvah. Generally, this verse is thought to be for the sake of a blessing but not as an actual commandment which is based on the command to Noah (Genesis 9:1). Only the tanna, R. Johanan ben Beroka (beginning of the second century c.e.), claimed that women were obligated in procreation on the basis of Genesis 1:28 where both males and females are blessed (Mishnah Yevamot 6:6), but his opinion was not accepted as halakhah (Rambam, Ishut 15:2; Shulhan Arukh E.H. 1:13). Although this exemption is counterintuitive, it has given opportunities for poskim to introduce leniencies for women in reference to contraception and abortion.
Women are exempted from a number of other mitzvot which are not time-bound because the mitzvot refer to male physiology, for example the obligation to have oneself circumcised if one’s father did not fulfill that obligation, laws relating to courts and testimony in which women are ineligible as witnesses and judges, and laws relating to optional war (the women are obligated to keep such laws if it is an obligatory war).
Women are obligated in kiddush of the Sabbath because of the dual commandment of “keep” (Deuteronomy 5:12) and “remember” (Exodus 20:8), which is interpreted by the sages as meaning that anyone who must keep the Sabbath, i.e. refrain from work, must also remember the Sabbath through kiddush (BT Berakhot 20b; Rambam, Avodah Zarah 12:3; Shulhan Arukh O.H. 271:2). The sages engage in this exercise rather than make the claim that the Torah addresses males and females. As a result, some poskim (rabbinical decisors) obligate women in havdalah (blessing at termination of Sabbaths and festivals) because of its connection to the biblical Sabbath but others claim it is only a rabbinic commandment and exempt women (Encyclopedia Talmudit, Isha 249:1).
Despite the fact that in Mishnah Kiddushin 1:7 women are exempted from all positive time-bound commandments such as sukkah, lulav, and shofar (which many women have kept historically), there are a number of exceptions. The reason for the exemption is based on a midrashic method (middah [inference from the context]), mah mazinu, which transfers the laws pertinent to one case to another case. The case refers to tefillin, which is a time-bound commandment because tefillin according to most rabbinic sages are not worn at night, on the Sabbath or festivals and women are exempt because of the law concerning Talmud Torah which is obligatory for men on the basis of Deuteronomy 11:19, “Teach them to beneikhem …” where beneikhem is understood to include “your sons” and exclude “your daughters” (JT Berakhot 3:3, 4c). That plural suffix could very easily have been interpreted as inclusive of women. In the first and second paragraphs of the Shema, tefillin are juxtaposed to Torah learning, so the exclusion of females from the obligation of Torah study is transferred to tefillin, which serves as a paradigm for the exemption of women from positive time-bound commandments (BT Kiddushin 34a). This gendered argument is bolstered by the verse in Exodus 13:9 which refers to tefillin as “a sign on your hand” where the masculine pronominal suffix “your hand” (yadekha) is used to exclude women. Rambam (Tefillin 4:13) bases his exemption of women from tefillin and their exemption in reciting the Shema on this verse. Another method of exempting women from positive time-bound mitzvot is by using the hermeneutic middah, mah mazinu, from the commandment of re’iyyah (lit. “appearance,” pilgrimage) during the pilgrimage festivals which specifically mention “your males” (zekhurkha) in Exodus 23:17, and which has been extended to all positive time-bound mitzvot. One other mode to exclude women is to understand from the Torah’s specific inclusion of women in eating mazzah and congregating (hakhel) in the seventh year that they are exempted from all other positive time- bound mitzvot. The medieval authorities explained the exemption of women on the basis of the fact that they were subservient to their husbands and that they must perform the needs of the household. Hence they were exempted in order to prevent a conflict of obligations and to keep peace in the household (David ben Joseph Abudraham [fourteenth-century Spain], Seder Tefilot shel Hol 73). This is also the reason that there is a differentiation in the obligation to fulfill the commandment of honoring one’s parents, because women must first answer to their spouses. Based on the masculine language in Genesis 21:4 and the discussion in BT Kiddushin 29a, women are exempt from having their sons circumcised. Given the fact that many more women are opting to have children as single parents, or become such as a result of divorce or abandonment, this exemption may have an impact on the number of Jewish boys who are circumcised. In Israel during time of war when there is a general call up of reserves, the rabbinic court sends representatives to obstetric wards to facilitate organizing circumcisions for the eighth day in the father’s absence. This does not say anything about female obligation but does help in a difficult situation.
Rabbinically decreed mitzvot fall under the same categories of obligation and exemption as biblical commandments, thus indicating the rabbinic sages’ desire not only to maintain the biblical exemptions of women which they imposed but even to expand them. Women are exempt from time-bound mitzvot decreed by the rabbis such as hallel and would also have been exempted from Hanukkah candle lighting, the four glasses of wine at Passover, eating bitter herbs after the destruction of the Temple and other practices at the seder including hallel and reading the Megillah on Purim, were it not for the fact that women are also included in those miracles (Encyclopedia Talmudit, Isha 257:2). The concept that women were included in those miracles did not apply to the obligation to sit in a sukkah, which is a biblical commandment, either because the rabbis did not include them or because the commandment was given after the time of danger had passed. Some medieval authorities claimed that these miracles came about because of the women (Rashi on BT Shabbat 23a; Rashi and Rashbam on BT Pesahim 108b), while others say that women underwent the same danger as the men and therefore are included (Tosafot BT Pesahim 108b). A woman was also not obligated in educating her child for mitzvot in the same way a man is obligated (BT Nazir 29a) but some authorities do obligate women. Men are not obligated to educate their daughters through a vow of nazirut. According to rabbinic sages women are not obligated in blessing the new moon (kiddush ha-levanah), which is obviously time-bound.
Women are exempt from reading the Shema according to the rabbinic sages, despite the fact that it is an acceptance of the “rule of heaven” (‘ol malkhut shamayyim), because it is time-bound (Mishnah Berakhot 3:3). Women are, however, obligated in making a blessing on learning Torah despite the fact that they are not obligated in Talmud Torah. This is so because according to the rabbinic sages they are obligated to learn women’s mitzvot, are obligated to read the list of sacrifices because tefillah comes in place of sacrifices, and are permitted to study written Torah (Encyclopedia Talmudit, Isha 249:1). According to others, women are not obligated in this blessing or make it only in the manner that they recite blessings in which women are not obligated, i.e., without God’s name and rulership (shem u-malkhut) (ibid, 249:1 note 264).
Perhaps one of the most painful developments for women was the concept of “communal honor” (kevod ha-zibbur) which was primarily expressed around Torah reading, for which they were originally included in the seven who read Torah on the Sabbath. This meant reciting the blessing before and after the reading (according to a baraita in BT Megillah 23a). They were subsequently disallowed this honor because of the potential embarrassment for a congregation which does not have enough competent males for the Torah reading (Rambam, Tefillah 12:17; Shulhan Arukh O.H. 282:3). The concept of communal honor is a sociological concept given to change as the concepts of community and honor develop or change. In the Hellenistic context, where the negative status of women created a desire/need to exclude them from communal activities, it was indeed an embarrassment that they be more competent than the men. The result, of course, was a lower level of general competence in the community with regard to public education and educational opportunities, in order to preserve a false sense of dignity among men by excluding half of the population from education and its empowerment through knowledge. This development has been used as a weapon against women striving for more egalitarian ritual experiences and has been compounded with false ideas of women transmitting menstrual impurity to the Torah scroll (which is impossible because the Torah scroll cannot receive impurity but actually transmits purity to the hands, a sign that the scroll is holy) in order to create images of female filth and female incompetence that would justify the exclusion of women. When the concept of communal honor involves only males, as in a community which is made up only of priests, accommodations are made by distributing the priestly privileges because the group is equal in gender and status. It is far more difficult for males to give up male privilege in order to “allow” women equal access to Torah learning, ritual obligation and privilege.
The morning blessings thanking God for not having made one an idol worshiper, a slave or a woman have been considered very controversial. They parallel the Greek blessings thanking the gods for having made one a Greek and not a barbarian, a free man and not a slave, and a man and not a woman (Tosefta ki-fshuta, Berakhot, 120), a clear indication of Hellenistic influence on the rabbinic sages. Jewish women are to thank God for having been made according to God’s will, which the Tur (O.H. 46) suggests is said “as one who justifies to oneself one’s ignominious lot.” Other suggestions of a blessing women might say instead of “who has not made me a woman” include “who has not made me a cow,” mentioned as an example of a blessing recited by the mother of a famous rabbi who said that version (Leket Yosher, Part 1 O.H. p. 7:2). The normal justification is that women have a lower status because they do not have the obligation to fulfill positive time-bound mitzvot. However, since it was the rabbis who exempted them, one wonders whether they created a self-fulfilling and hence self-serving prophecy.
Women were exempted from the obligation of appearing at the Temple on the Pilgrimage Festivals and the public sacrifices of those days because “your males” were specifically mentioned in Exodus 23:17. Women were also exempted from the mitzvot connected with Temple service and sacrifices (except slaughtering the sacrifices) because of the rabbinic interpretation of several verses in Leviticus referring to benei yisrael which were understood to exclude daughters of Israel, and similarly those verses which referred to benei aharon which were understood to exclude the daughters of Aaron. Such activities include laying the hands on sacrifices, waving the sacrifices, presenting the sacrifices, taking the handful of incense and offering the incense, the bird’s slaughter, receiving the sacrifice’s blood and sprinkling it. Those tasks which were not connected to a gendered reading of Leviticus were compared to tasks which were read in a gendered manner to exempt women also from them (e.g. melikah [“nipping” the neck of a bird] for the incense offering which is limited to male priests). Although such activities may be repugnant to the twenty-first-century mind, in a culture which was centered on cultic activities, totally preventing women from participating in such rituals led to severe limitation of their spiritual expression. The suspected adulteress (sotah) is obligated to wave her offering with the priest and so is the female nazirite, both of which may be somewhat degrading (Rambam, Ma’aseh ha-Korbanot 9:16). Any activity which was forbidden to a non-Jew was forbidden to a Jewish woman, even the daughter of a priest, because she was likened to a foreigner in reference to Temple service (Rambam, Bi’at Ha-Mikdash 9: 1). Women, like other pesulim (disqualified people), slaves and impure people, may slaughter animals (and fowl) and the slaughter is kosher. This includes slaughter of sacrifices at the highest level of ritual purity in the Temple for those in a state of ritual purity (Mishnah Zevahim 3:1) as long as their intentions are considered appropriate. Although slaughtering has chiefly been a male profession, there is evidence from Italy that women learned how to slaughter and did so for their families, at least of fowl and possibly other small animals. A very contentious issue connected to the Temple was whether women were permitted to place their hands on their sacrificial animals (semikhat yadayyim), a process which either identified ownership or transfer of guilt to the sacrifice or was simply a public form of dedication. Women were exempted from the obligation of semikhah on the basis of Leviticus 1:2+4, where the address to benei yisrael supposedly excludes benot yisrael even under circumstances where women are obligated to bring such a sacrifice. The midrash skips ahead to verse 4 to connect semikhah to the exclusion (Torat Kohanim, Nedavah Parashah 2:2) but then relates to the desire of women to place their hands on their sacrifices and the token gesture made in that direction by “allowing” them to do so by bringing the sacrifice to the women’s section of the Temple. This was done in order to “ease the mind” (Nahat Ruah le-Nashim) of women after they objected to their exclusion. It may demonstrate that it takes women’s objection to certain practices in order to have them changed, perhaps more than any rabbinic sages’ willingness to do so. These laws are reiterated several times in the Babylonian Talmud (Eruvin 96b, Rosh ha-Shanah 33a, Hagigah 16b, Hullin 85a) and among the poskim (Rambam, Pesulei Mukdashim 4:14; 6:4, etc.). The woman’s sacrifice must also be accompanied by nesakhim (libations) as is required for the man’s sacrifice, on the basis of Numbers 15:4: “the one who brings his sacrifice—sacrifices it,” which is in masculine language but has two words with the same root which are then used to include women in the obligation (Sifrei Ba-Midbar to 15:4). The hide of a woman’s burnt offering is given to the priest just as is the hide of a man’s burnt offering, even though it would appear as if Leviticus 7:8 specifically mentioned a man, ish, in this obligation (BT Zevahim 103a). An impure woman is excluded from eating sacrifices even though Leviticus 22:3 similarly mentions only ish, but she is included on the basis of “your seed/offspring” (zar’akhem) in a verse which also mentions benei yisrael but in this case does not exclude daughters of Israel. This is one of a multitude of examples in which lack of consistency in application of midrashim indicates that an agenda was behind their creation and use. At least part of the agenda was exclusion of women when it was possible to do so without compromising other aspects of the male ritual system. According to Torat Kohanim, Aharei, Parashah 4, Perek 9:7, women, slaves, and non-priests were allowed to perform all aspects of sacrifice ritual at the altars outside of Jerusalem (bamot) prior to the unification of the sacrificial rite—a past privilege, apparently not to be repeated in the Temple in Jerusalem. Women are, however, obligated to aid in the construction of the Temple based on their participation in the construction of the Tabernacle in the wilderness (Exodus 35:22, Rambam, Bet Ha-Behirah 1:12). This does not include an obligation in payment of the half-shekel for public offerings from which women are exempted by the rabbinic understanding of Exodus 30:12, ish kofer nafsho, as being exclusively masculine.
Women are obligated in eating mazzah on Passover because of the verse in Deuteronomy 16:3 which prohibits eating leavened products (hamez) and obligates eating mazzah with the Passover sacrifice. This is phrased in the masculine singular, just as the obligation for the Passover sacrifice in the previous verse has both the verb and the pronominal suffix on “your God” in masculine singular. R. Judah bar Ilai obligates the woman in the Passover sacrifice in the month of Nissan but not in the following month if she was unable to participate due to ritual impurity (BT Pesahim 91b, Rambam, Avodah Zarah 12:3). Because the woman is obligated in the Passover sacrifice and eating mazzah, she is also obligated in eating bitter herbs (maror). The woman is obligated in the three meals of the Sabbath and in kiddush because of the juxtaposition of “remembering” to “keeping.” This is not unexpected, but if we were to follow the exact masculine gendered language of the kiddush as so often emphasized by the rabbinic sages, the married woman would not be considered to be mentioned (you ata = second-person masculine singular, your son, binkha = second-person masculine singular suffix, and your daughter, u-vitekha =second-person masculine singular suffix). Some also obligate women on the positive commandment to rest one’s oxen in Exodus 23:12 but others exempt her from the positive time-bound mitzvah of shevitah (“rest”) (Encyclopedia Talmudit, Isha 245:1).
Women are obligated in tefillah (the amidah [lit. “standing,” the prayer of eighteen benedictions]) even though there is an obligation to say it at specified times (Mishnah Berakhot 3:3). Although women were exempted from the evening tefillah, they were obligated in morning and afternoon tefillah. The obligation is justified because the prayer is one for mercy and women are also in need of mercy; or because the obligation is really to pray all day; or because the biblical commandment is not time specific so that it is not exactly time-bound (BT Berakhot 21a; Rambam, Tefillah 1:1–3; Encyclopedia Talmudit, Isha 248:1). Rambam also relates to the number of times a person may pray (one or more times a day) and also to one’s ability in prayer, meaning that those who are less fluent do not have to pray as extensively. It is interesting that even though the amidah is at least 2.5 times longer than the Shema, making it more difficult to memorize or recite, that obligation was imposed on women while they were exempted from the Shema. It is possible that the amidah represents for the rabbinic authorities a theology in which women should be educated while the Shema represents Talmud Torah, a privileged male area of study. The musaf prayer is not obligatory for women because it is not a request for mercy as is the other amidah. Various other reasons are given by medieval authorities (Encyclopedia Talmudit, Isha 248:1).
Women are obligated in grace after meals (birkat ha-mazon) but it is uncertain whether the level of obligation is biblical or rabbinic (Mishnah Berakhot 3:3; BT Berakhot 20b). Part of the uncertainty is due to phraseology in the prayer, for example, “in Your covenant which You sealed in our flesh and Your Torah which You taught us,” concerning circumcision and Talmud Torah, or “the land which [God] gave you,” concerning the biblical portions of the land of Israel. Of these, only the argument concerning circumcision is actually specifically masculine and there an ungendered form such as “uncircumcised heart” could have been chosen as we find in Deuteronomy 10:16 or Jeremiah 4:4. Again, it was rabbinic choice which dictated exclusionary language and interpreted other references as pertaining only to males. As a result of the questionable biblical obligation for women in birkat ha-mazon, women according to rabbinic authorities cannot exempt men, who have a definite biblical obligation, but are able to exempt those who have a rabbinic obligation (Rambam, Berakhot 5: 1). A number of other poskim, including Rabad (Abraham David of Posqueires, c. 1125–1198), Ramban (Nahmanides, 1194–1270), Rif (Isaac ben Jacob Alfasi, 1013–1103), Rav Hai Ben Sherira (939–1038) and Rashba (Solomon ben Abraham Adret, c. 1235–c. 1310) (Encyclopedia Talmudit, Isha 248:2 note 240), do understand women to have a biblical obligation in birkat ha-mazon and as therefore able to exempt others. Even those who accept that women have a biblical obligation do not allow women to participate in the zimmun with men (Mishnah Berakhot 7:2; Rambam, Berakhot 5:7), but women (or slaves or minors) may make a zimmun for themselves, though not in a mixed group. A woman may say birkat ha-mazon for her husband and a child for his father (Tosefta Berakhot 5:17) though the adult male who had to rely on the knowledge of women and minors should be cursed, according to Mishnah Sukkah 3:8–10. If women eat in a group with men, they are exempt with the zimmun of a man. This is also a means to prevent women from performing a public religious act when men are present.
Although women are obligated to bring first fruit offerings, they are not obligated according to the rabbinic sages to make the recitation which was apparently normally spoken by a priest and repeated by the person bringing the offering. The reason women are exempt is because the land was not apportioned to them biblically except in the case of fathers who had only daughters (Mishnah Bikkurim 1:5). One wonders whether the mishnah, redacted long after the destruction of the Temple, reflects practice during Temple times or, more likely, rabbinic ideas of what Temple practices should have been ideally, i.e., a holy place excluding women as far as possible.
There are many reasons given by the medieval authorities for justifying the sides of the dispute in the tannaitic period about whether exemption from a mitzvah means that one is forbidden to fulfill the mitzvah or whether one is nevertheless allowed to fulfill the mitzvah; these reasons are quite problematic from a woman’s point of view. The anonymous view found in Torat Kohanim, Nedavah, Perek 2 Parashah 2, forbidding women to place their hands on their sacrifices, is attributed to R. Judah bar Ilai in BT Eruvin 96b. R. Meir is considered to be the tanna of the mishnah which allows children to blow the shofar (a positive, time-bound mitzvah) but which is understood to prohibit women from blowing the shofar. Among the reasons offered by the medieval authorities is the prohibition to “add” to the mitzvot of the Torah (Rashi, Eruvin 96b); the concern for the way something appears (mar’it ayyin), so that semikhah would seem as if a woman were performing a Temple service; the supposed requirement of a clean body (guf naki, objected to by the Semag [Moses ben Jacob of Coucy, thirteenth century] in his introduction) for tefillin, which according to rabbinic sages refers to flatulence (something about which women were not considered to be as careful as men according to Bet Yosef, O.H. 38; Isserles, O.H. 17:3); the prohibition of women in participating in the Pilgrimage Festivals in which these women might be considered as bringing hullin to the Temple or entering the Temple precincts without need; and the prohibition of shofar because of the rabbinic prohibition of shevut (Tosafot, Eruvin 96a–b). There is less difficulty with many other positive time-bound mitzvot, such as sukkah or lulav, which cannot be ruined or come to scorn by women’s participation. According to many poskim, the halakhah is that women are allowed to fulfill positive time-bound mitzvot (Tosafot, Eruvin 96a–b and Rosh Ha-Shanah 33a; Rambam, Zizit 3:9; Shulhan Arukh O.H. 17:2 and Isserles, ibid.; Encyclopedia Talmudit, Isha 250:2, note 324). Others, like Rabad in his commentary to Torat Kohanim (Nedavah Parashah 2 Perek 2), disagree with the Talmud and claim that the rabbis objected both to Michal, King Saul’s daughter and David’s wife, putting on tefillin, and to Jonah’s spouse (elsewhere named Yoam) going on the Pilgrimage, but in other mitzvot—where there is no scorn or ruin as a result of women’s participation—they are allowed to fulfill the mitzvot. Still others believe that any positive time-bound mitzvot which women take upon themselves become an obligation to them, that they are allowed to make the appropriate blessings without the blessings being considered in vain, and that they receive the appropriate reward for their fulfillment (Encyclopedia Talmudit, Isha 250:2, note 333). According to BT Bava Kamma 87a, a person who is obligated to fulfill a mitzvah and does so receives a greater reward than the one who fulfills it without being commanded. Others allow women to fulfill the positive time-bound mitzvot but prohibit making the blessing, because they are not actually commanded to do so by rabbinic interpretation (Rambam, Zizit 3:9; Sukkah 6:13, Shulhan Arukh, O.H. 689:6). Isserles makes a distinction between rabbinic mitzvot over which women are not allowed to make a blessing and other mitzvot, which demonstrates conclusively that the rabbinic sages were intent upon denying or reducing women’s participation in ritual life. Even something as basic as making a blessing for havdalah is considered problematic by some (Isserles, O.H. 689:8), who claim that only men can make it for her, while others permit her to make the blessing for herself (Encyclopedia Talmudit, Isha 250:2, note 343).
The same laws apply to men and women in reference to damages and capital crimes, based on inclusive midrashim (Mekhilta, Mishpatim Parashah 6). There is no difference in punishment if a person murders a man or a woman (BT Kiddushin 35a) or if a person kidnaps a man or a woman (BT Sanhedrin 85b). A woman, like a man, is subject to the four types of executions mentioned in Mishnah Sanhedrin 7:1 (Rambam, Sanhedrin 14:5). However, she is stoned while clothed while the man is stoned naked and she is not hung on a tree after the stoning (Mishnah Sanhedrin 6:4; BT Sanhedrin 45a; Rambam, Sanhedrin 15:1, 6). There are some exceptions: a female thief cannot be sold by the court for her debt like a male thief (Rambam, Genevah 3:12; Avadim 1:2); a woman may not sell herself into slavery while a man may (Mekhilta, Mishpatim 21:7); a father may sell his minor daughter into slavery to a Jew but may not sell his son into slavery (ibid.) but she may not be sold more than once; a male Hebrew slave has his ear punctured if he opts to remain with his master but a woman does not (Tosefta Sotah 2:9); a woman may not purchase a Hebrew slave lest they be alone together (ibid.); but she may acquire a Canaanite slave, according to the sages (Rambam, Avadim 1:2). A woman is not subject to the law of a rebellious son (Mishnah Sanhedrin 8:1).
A wife does not inherit her husband but a husband inherits his wife. A daughter does not inherit unless there are no sons. It is expected that a certain amount of the father’s property be designated for his daughter’s dowry and may be claimed from the brother’s inheritance. A woman may receive gifts and inheritances, some of which her husband benefits from usufruct.
A particularly painful issue of difference between males and females is that of reliability in testimony. Women are not considered reliable witnesses when two kosher witnesses are needed, for example on monetary issues, capital crimes and sexual crimes; but concerning issues of prohibitions where one witness is believed, a woman is also believed (Sifrei Devarim, Shoftim 19:17; Rambam, Edut 9:1–2; Tosafot, Gittin 2b). To some extent this is based on her reliability in counting her days of niddah impurity. On certain issues a woman is believed if she is not specifically testifying on the topic but rather telling about an incident (Rambam, Gezelah 6:15). In reference to determining whether a girl has sprouted pubic hairs, women are believed only when the resulting legal decision is disadvantageous to the girl, i.e. she has not sprouted two pubic hairs so she may not perform halizah (see Deuteronomy 25:9–10), accept independent betrothal, or sell inherited real estate or slaves; or she has sprouted two pubic hairs so she may not perform me’un (marriage refusal declaration) (Sefer Bagrut le-Rav Shemuel ben Hofni Gaon, ve-Sefer ha-Shanim le-Rav Yehuda ha-Kohen, Rosh ha-Seder, Ch. 4 line 11 ff and introduction, Meacham [leBeit Yoreh], 38–42). A woman’s testimony is considered reliable when she is testifying about something that would be discovered in another manner, even without a witness (gillui milta be-alma, Rambam, Yibbum 4:31).
The testimony of women is accepted if they testified that the husband of a woman has died so that she can remarry (Mishnah Yevamot 16:16); that a suspected adulteress actually had sexual relations and therefore should not drink the bitter waters (Mishnah Sotah 6:2); that she witnessed a murder so that the heifer’s neck is not broken (Mishnah Sotah 9:7); and that a captive woman had not been raped in order that the captive would still be eligible to marry a priest (Mishnah Ketubbot 2:9).
A midwife is believed by rabbinic decree when she testifies concerning the status of babies she helped deliver (priest, Levite, Israel, bastard, etc.) who were born in the same house, as long as no direct question arises about their status (Rambam, Issurei Bi’ah 15:32; Shulhan Arukh E.H. 4:32). She is also believed when she testifies immediately after the birth of twins to determine which is firstborn (Rambam, Nahalot 2:14; Shulhan Arukh H.M. 277:12). Essentially, a woman is believed in whatever areas men normally have no contact or privileged knowledge, such as seating arrangements in the women’s section of the synagogue, which clothes a widow wore in her husband’s lifetime and the like (Encyclopedia Talmudit, Isha 253:2, note 440). If the testimony of women contradicts testimony of a kosher witness, the reliability is determined on each issue separately (Rambam, Sotah 1:18; Rozeah 9:16; Shulhan Arukh E.H. 17:37, etc.).
On issues of prohibition (issur), women are believed if they claim to have “fixed” the issue if it falls into their hands to do so, for example, separating hallah and ma’aser (tithe) and removing the prohibited fats and tendons of meat (nikkur), and on issues of slaughtering (Shulhan Arukh Y.D. 127:3) although some limit that to her slaughtering for someone else rather than for herself or on the status of meat for someone else (Isserles, Y.D. 127:3) and others claim the exact opposite for various reasons, including fear of her husband, frivolousness and softheartedness (Encyclopedia Talmudit, Isha to 52: 2 notes 414–422). If the tikkun (repairing) of something is difficult or time-consuming, women are not believed because they are considered to be lazy even though the matter may have to do with normal women’s work such as food preparation (Tosafot, Pesahim 4b). On rabbinic concerns of tikkun women are believed, for example, checking for hamez (leavened bread) before Passover after the bittul (cancellation) ceremony, while others do not accept women’s testimony even on rabbinic ordinances (Encyclopedia Talmudit, Isha to 52: 2 note 432). These—for some, offensive—generalizations create severe legal disabilities for women and were part of the worldview and exclusionary educational agenda of the rabbinic sages rather than representative of any objective divine truth.
This classification of women as being unreliable witnesses is part of the negative cycle in which women are not obligated to learn (and according to some are forbidden to learn) and therefore do not develop their minds and analytic thinking processes. It is fed by a negative view of women’s intelligence because they are considered to have frivolous minds (mi-penei sheda’atan kalah) in a very similar manner to Hellenistic ideas of education and intellectual development versus the untrained minds of the barbarians, who include women, slaves and children.
A woman may not be appointed queen over Israel or to any other official position, on the basis of a gendered reading of Deuteronomy 17:15, “You shall appoint a king over yourself”—a king, but not a queen (Sifrei Devarim 157). Such appointments would include judgeship, for which women have been declared unfit because they are not valid witnesses (Mishnah Niddah 6:4) and by the gendered reading of Numbers 11:26, in which shenei anashim is understood as two men and referring to a Sanhedrin. In order to discredit the judgeship of the biblical Deborah, some claim that the Israelites of her day approached her for judgment due to the Divine Presence, Shekhinah, or as they might turn to a relative for legal advice, or that she did not actually judge but only taught laws (Encyclopedia Talmudit, Isha 253:2, notes 454–457); while others claimed that the biblical text equated her to the judges for all the laws in the Torah including the laws of judges, but that she is invalid as a witness (ibid. notes 458–9). According to BT Gittin 52a, a woman could not be appointed by the court as a guardian, but in fact many widows served as guardians of their children’s property while the children waited to inherit their father’s property.
In certain laws a woman takes precedence over a man: if she requests food or clothing from a poor fund; an orphan girl is married off before the orphan boy and a woman receives ma’aser ani (tithe for the poor person) before a man (Rambam, Matanot Aniyyim 8:15; 6:13; Shulhan Arukh Y.D. 251:8). The reasoning is often connected to the greater embarrassment accruing for the poverty-stricken female but may have to do with a deep understanding that poverty-stricken women are exceptionally vulnerable and that society must do its utmost to support them. Men take precedence over women when their lives are at stake and must be rescued, or for the return of a lost article since their lives are considered more sanctified because of the obligation in all mitzvot (Mishnah Horayot 3:7 and Rambam’s commentary to it). A captive woman who has not yet been raped takes precedence over the captive man in reference to being ransomed. If, however, both of them have already been raped, the man has precedence because that is not considered his normal sexuality (Mishnah Horayot 3:7, Rambam, Matanot Aniyyim 8:15; Shulhan Arukh Y.D. 252: 8). This reasoning includes the very repugnant idea that rape of a woman is less injurious and traumatizing for her than that of a man because the act of intercourse in another context would be considered natural whereas penetration of a man is considered unnatural in all cases—another Greek idea. It is very possible that rabbinic sages defined rape as forcible intercourse only with a virgin, but in other contexts, such as marriage or levirate marriage, forcible intercourse may not be considered rape by them even if they considered it reprehensible.
If a man and woman come to the court to make a claim against a particular person, the woman’s case is judged first because of embarrassment (Ramban, Sanhedrin 21:6; Shulhan Arukh H.M. 15:2). This law may be detrimental to women in other cases because it emphasizes the legitimacy of a woman’s embarrassment in the public setting of the court rather than emphasizing and encouraging her right to turn to a court for redress of injuries incurred. We see the downside of this law when a widowed or divorced woman who is nursing is not allowed to remarry until the nursing period is over because she will be ashamed to claim sustenance for her child if the nursing fails as the result of subsequent pregnancy. BT Yevamot 42b phrases this, “a woman is embarrassed to come to the rabbinic court and/so she kills her child.” If a man and woman are taken out for burial, the woman takes precedence because of her potential for disgrace should she discharge uterine blood which would stain the burial shrouds (Tractate Semahot Chapter 11; Shulhan Arukh Y.D. 354). Given the fact that a dead woman cannot feel disgrace, this law actually reflects the great disgust the rabbis felt toward women’s bodies and their emissions and the superiority they felt at possessing a male body. The female leper is not obligated to leave her hair unkempt and tear her clothing as is the male leper, probably for the sake of female modesty. Neither is she obligated to cover her face up to her lip (Torat Kohanim, Tazria, Parasha 5, Perek 12:1). A male leper is forbidden to have sexual relations but the female leper is allowed to do so, possibly so as not to infringe upon the sexual rights of her husband (Rambam, Tumat Zara’at 11:1). Males with irregular genital discharges (zavim) have their rights limited just as the male leper’s rights are limited in comparison with a normal male. The zav does not become impure due to seeing a discharge as a result of ones, such as lifting or carrying, but does become impure if he has three sightings of discharge in one day, while the zavah becomes impure due to ones but needs three consecutive days in which she sees blood in order to become confirmed as a zavah (BT Keritot 8b).
A woman does not have the right to commit her minor son to a nazirite vow or to marry off her minor and maiden daughter (ketannah, na’arah) or to sell her daughter as a Hebrew maidservant or to own what her daughter finds and her daughter’s handiwork—all of which are rights of the father (Mishnah Ketubbot 4:4). A daughter is not obligated to shave herself in order to complete her deceased father’s nazirite vow as is a son (Rambam, Nazirut 8:15).
Even though Leviticus 27:31 refers to ish in reference to redeeming ma’aser sheni, a woman is allowed to redeem it but does not need to add one fifth of its value as must the man (Rambam, Ma’aser Sheni 5: 2). According to Leviticus chapter 27, the value of a woman is less than the value of a man if her value is being dedicated to the Temple.
The three mitzvot given explicitly to women—hallah, niddah and hadlaka [=mitzvot HaNaH]—are given a negative connotation because Eve brought death into the world, thereby extinguishing the light (ner) of Adam, who was the dough (hallah) of the world, and by spilling his blood, which left her the obligation in niddah. This attitude denigrates women’s participation in ritual life and limits it to the home. The custom of women avoiding work on the New Moon is considered a reward for refusal to participate in the idol worship of the golden calf (Pirkei de-Rabbi Eliezer 48).
A girl comes to wisdom faster than a boy and hence reaches the age of education, the age of vows and majority at a younger age (twelve years and a day) than a boy (thirteen years and a day) (Mishnah Niddah 5:6; 6:11). The rabbinic desire to keep women inside the home environment is expressed in some laws, especially ones that prevent her from having to go to the market or to the court or having contact with merchants (Encyclopedia Talmudit, Isha 255:2–256:1). In the rabbinic culture which deeply devalued women and limited their access to financial independence, women were forced to compromise in choice of a marriage partner, if indeed they had any choice at all. The infamous statement, “It is better to sit with any person than to sit alone,” has been applied exclusively to women to mean that they would rather marry anyone than remain alone. It is possible that in antiquity an unattached, and therefore unprotected, woman was both vulnerable to attack and exploitation and also in all likelihood deeply impoverished. This statement may therefore reflect some aspect of social reality but, of course, not necessarily a woman’s desire. Moreover, it has been consistently interpreted to women’s great legal disadvantage in terms of access to divorce.
The issue of obligation or lack thereof in mitzvot has a major impact not only on legal practice but also on society’s perception of women in terms of halakhah, including women’s self-perception. The Talmudic reasoning to exempt women is logically very weak and serves as a means for women to enable men to be the true participants in religious life as defined by the sages, certainly in the public realm. The basic exemption from Talmud Torah (non-time-bound) and tefillin, leading to exemption in time-bound mitzvot, created a system which left women disadvantaged legally in issues such as testimony, resulting in distancing them from court access. They became second-class Jews.
The sages’ construction of a woman and her values was very negative, probably relating more to their vision of the ideal which was, of course, male oriented, and applying its opposite to females. Such attributes as stinginess, frivolity, coarseness, lewdness, filth and the like are readily applied to women and other undesirables in order to separate them from the elite rabbinic class and other male householder values. No doubt women’s legal status reflects these social values but how such realities are played out is a topic for social historians.
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