Simchat Torah is coming and that means that social media feeds are about to fill up with articles (this piece by R. Gil Student provides an example that seems to keep coming back) arguing about whether or not women should be allowed to hold and dance with Torah scrolls. Without getting into an actual discussion of the topic, I would like to attempt to correct a serious misreading that seems to keep being repeated: the comment of R. Moshe Isserles (Rema) on Shulchan Aruch, Orach Chayim 88 is often cited as a support for forbidding women from holding and dancing with the Torah. What follows is the original Hebrew comment as well as my English translation. Below, I would like to go through Rema’s comment line by line and point out some important things that I think have been overlooked and ignored.
יש שכתבו שאין לאשה נדה בימי ראייתה ליכנס לבית הכנסת או להתפלל או להזכיר השם או ליגע בספר, וי"א שמותרת בכל, וכן עיקר, אבל המנהג במדינות אלו כסברא ראשונה. ובימי לבון נהגו היתר. ואפילו במקום שנהגו להחמיר, בימים נוראים וכה"ג, שרבים מתאספים לילך לבית הכנסת, מותרין לילך לבהכ"נ כשאר נשים, כי הוא להן עצבון גדול שהכל מתאספים והן יעמדו חוץ.
Some have written that a woman currently menstruating shouldn't enter a synagogue or daven or mention God's name or touch a Torah. However, some say it is permitted and this is the actual law, though the local custom is like the first opinion. But for a woman in niddah, but no longer menstruating, the custom is to permit. Even in places where the custom is to be strict [like the first opinion], on the High Holidays and the like, when many people gather to the synagogue, it is permitted for them to go to shul like the rest of the women, for it is a great sadness for them that everyone is gathering and they must remain outside.
Some have written that a woman currently menstruating shouldn't enter a synagogue or daven or mention God's name or touch a Torah.
The opinion Rema quoted forbids a lot more things to a menstruating woman than just touching a Torah scroll. According to this opinion, a menstruating woman should also not enter a synagogue at all, nor pray (regardless of location), nor mention God’s name (regardless of context). The harshness of not allowing a person to say God’s name or pray to God, depriving them of essential aspects of an individual’s spiritual life, is something I think most people today would be aghast at. Moreover, synagogues are, in many places, an essential aspect of the social and religious life of a Jewish community. When people quote Rema to the effect that women cannot hold the Torah they are really referring indirectly to this opinion, by way of Rema (as we shall see, Rema does not necessarily agree with this opinion). However, they are picking just one prohibition out the four mentioned in this opinion. While it is certainly within a person’s right to agree with part of an opinion while disagreeing with another part, it is strange to attempt to point to that opinion as the source of, and authority behind, your own opinion.
However, some say it is permitted and this is the actual law, though the local custom is like the first opinion.
Rema says that all four of the various acts held to be prohibited by the first opinion are in fact permitted, touching the Torah scroll included. On one level, that seems like it should be the end of the story; he said it’s permitted, so he can’t be quoted as a source saying it’s forbidden. However, there is an additional factor beyond the technical law, namely, communal practice. If the practice in a specific community is, or was, to forbid something (even if that thing is technically permitted), then that is an important factor that needs to be addressed. This is what Rema does in his continuation.
But for a woman in niddah, but no longer menstruating, the custom is to permit.
Rema first says that the custom actually “permits” for women who, while still in a state of niddah, are not currently experiencing menstrual bleeding. While the custom is just as strict as the cited opinion when it comes to a woman currently menstruating — in all four prohibitions it would seem — the custom has a leniency (it is unclear from Rema’s comment whether or not the cited opinion has this leniency) where it is permissive for women in niddah who are not currently menstruating — seemingly for all four actions mentioned, including holding a Torah scroll. Thus, even according to the communal practice that Rema cites, only a woman who is currently experiencing menstrual bleeding is forbidden from holding a Torah scroll.
It is worth at this point taking a moment to point out some basic, technical, facts of biology, halakhah, and society. In terms of biology, women can be divided into three categories: women too young to menstruate, women too old to menstruate, and women who menstruate. In terms of halakhah, the category “women who menstruate” can be divided into three sub-categories: women who are in niddah and are currently menstruating, women who are in niddah but not currently menstruating, and women who are neither in niddah nor currently menstruating. Thus, the communal practice cited by Rema refers only to a subset of a subset of all women. This is important because of a simple fact about Jewish society today: niddah and menstruation are considered private affairs, generally known only to a given woman, if she is married then generally to her husband, and perhaps also to other individuals the woman might decide to inform, such as a confidant or a halakhic authority/counselor. This is important because while it may occasionally be obvious, though certainly not always, which biological category a given woman falls into, it is generally not known to most individuals what halakhic category a given woman falls into. This means that, for purposes of applying this communal practice, there are two practical possibilities: either we have to trust women regarding what their halakhic status is, or we have to apply the prohibition across the board — if not to all women than to all women who fall into the biological category of “women who menstruate.” Rema deals with this question in a later section of his comment.
Even in places where the custom is to be strict [like the first opinion], on the High Holidays and the like, when many people gather to the synagogue, it is permitted for them to go to shul
Rema says here that in places where the practice is to be strict (implying, of course, that there are places where the custom is to be lenient), they still are lenient in circumstances where more people than usual, perhaps the majority of the community, participate in the forbidden activity (Rema specifically refers to entering a synagogue, but there’s no reason to think he would limit this statement to that activity only; prayer and saying God’s name are more private and therefore perhaps different, but holding a Torah scroll is a more public action).
like the rest of the women,
In such a situation, Rema says, the communal practice to relax the non-technical prohibition and to allow currently menstruating women to enter a synagogue “like the rest of the women.” From this it is clear that Rema, as well as the communal practice he cites, comes clearly down on the “trust women” side of the two practical possibilities that I mentioned earlier. The four prohibitions, or even just the one regarding touching a Torah scroll, are to be applied (according to communal practice) only to women who attest that they are currently menstruating. Barring such an attestation, this prohibition is something that a currently menstruating woman can apply to herself. Then, in a situation when everyone is performing the prohibited activity, or perhaps only when they are publicly performing it, the prohibition is relaxed and the activity is permitted.
for it is a great sadness for them that everyone is gathering and they must remain outside.
Rema says that the reason for the relaxing of the customary prohibition is that in situations where many people, perhaps the majority of the community, are performing the prohibited activity, it becomes a cause of emotional distress and feelings of exclusion. Exclusion from a physical gathering of the community is painful, says Rema, and therefore is to be avoided even at the cost of communal practice. This is fascinating in that the conclusion regarding the relaxing of the communal practice is a function of entirely subjective emotions. Like the halakhic status of a given woman regarding niddah, emotions are something another person cannot know for themselves. It’s something you have to trust someone about when they express it. If a woman, or a group of women, express that exclusion is painful, then we have no way of confirming or disconfirming that; we have to trust them, otherwise the very idea of conversation becomes incoherent. Rema seems to be once again coming down on the side of trust by affirming a leniency based on a subjective emotion1. Based on this it seems that it would be safe to say that, according to Rema, a woman currently menstruating would be allowed to touch a Torah scroll (and therefore also hold it and dance with it) and would not have to prohibit the activity to herself, if it was a time when everyone was doing it (like Simchat Torah) and she would feel excluded if she prohibited the activity to herself. (Notably, Rema specifically mentioned pain caused by exclusion from a physical gathering. I have expanded this to pain caused from exclusion from a specific activity performed publicly, but I think this expansion is minimal, and I believe that the subjective emotions that Rema described remain the same as those I have mentioned.)
As I hope that I have shown over the course of my analysis, any mention of Rema as a halakhic source prohibiting women from holding or dancing with Torah scrolls must at best an indirect reference to an opinion that Rema cites and rejects on a technical level before moving on to a discussion of communal practice. It could also, perhaps, be a reference to the communal practice that Rema supports somewhat more, but is full of leniencies. The strongest prohibition that could be derived from Rema’s words is one that a currently menstruating woman must apply to herself, or applied by an authority to whom the woman attested that she was currently menstruating. This is a far cry from the sweeping prohibition of all women from holding a Torah scroll to be enforced by a community rabbi or perhaps even the community itself, which Rema is cited as support for in contemporary discussions on the topic. This Rema is not the only argument relied upon by those who forbid women dancing with Torah scrolls, and therefore the larger discussion about permitting or forbidding will certainly continue, but hopefully I have contributed to people understanding what Rema really meant in his comment to Shulchan Aruch, Orach Chayim 88.
1. I would lake to take an aside here from my analysis of Rema to express a personal opinion. Trust is the fundamental axiom that enables us to talk to other people and interact with them in a non-adversarial manner. If you can’t trust the person speaking to you to mean what they say then there is really no point in listening to them. It is of course possible that a person could prove themselves untrustworthy, but the default has to be trust. This is particularly true when it comes to issues about which we can only know via conversation. Intentions and emotions, as discussed by Rema, are something we can only know if the person experiencing them expresses them to us. Without being told, we really have no way of knowing what others are feeling or thinking. I emphasize this because much of contemporary Orthodox discourse around women’s participation in religious ritual and communal religious affairs orbits around the question of the intention of women who wish to be more participatory. Without challenging the idea that their intention is a significant factor (which is debated), the question that immediately arises is how we might know their intention in order to judge it’s halakhic significance. The immediate answer has to be that we have to ask them (I am including in this the possibility of reading things that they have written). It’s the only way we can know what they are thinking. Any suggestion that women’s intentions matter in the discussion about whether or not they may perform a specific ritual that does not say we should discover women’s intentions by asking them is, I would say, morally questionable at best.↩