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The Quest for an Effective Synagogue Partition Plan

Bisi’yata D’Shmaya by Shalom Spira

INTRODUCTION

One particularly nebulously mysterious halakhah that governs the architecture of asynagogue is the requirement for a partition during prayers. The insistence upon a partition isfirst explicitly codified in R. Moshe Sofer’s Shu”t Chatam Sofer, Choshen Mishpat no. 1901. R.Sofer derives the requirement from the gemara’s account in Sukkah 51b-52a of the gallery thatwas constructed in the external courtyard of the Temple in order to celebrate the Rejoicing of theWater Drawing. However, R. Sofer does not articulate the precise nature of this obligation(neither in the Temple nor in the synagogue), nor does he specify the necessary dimensions ofthe partition. Subsequent authorities have clashed over the clarification of these elements, and itis accordingly the purpose of the following essay to elucidate an effective synagogue partitionplan.

A. THE NATURE OF THE OBLIGATION

R. Moshe Feinstein in his Shu”t Iggerot Mosheh, Orach Chaim I, no. 39 demonstrates onthe basis of Sukkah 51b-52a that a proper partition in a sanctuary during prayers is necessitatedby virtue of the mitzvah di’oraita of “you shall revere My Sanctuary” (Leviticus 19:30). Afterall, he argues, the Sages modified the architecture of the Temple in order to establish a separategallery for the ladies, and yet Tosafot to Zevachim 33a (s.v. vili’avad) rule that one may nottamper with the Temple blueprints unless one is doing so to fulfill a mitzvah di’oraita. Evidently,then, the renovations of the Temple architecture must have been orchestrated under the rubric ofa mitzvah di’oraita, and the mitzvah di’oraita that governs sanctuary decorum is clearlyLeviticus 19:30. R. Feinstein corroborates this conclusion by citing the Jerusalem Talmud,

1 Actually, several fleeting allusions to the concept of a synagogue partition already appear before the ChatamSofer’s time. Firstly, as will be discussed infra, footnote no. 17, there is a Midrash in the Yalkut Shim’oni toDeuteronomy 23:15 that refers to the concept of a partition during communal prayer. Secondly, in his Shu”t Maharilno. 53, R. Jacob Moelin tangentially mentions “the synagogue of the ladies” in a certain city as being stationed inthe wine cellar of the attendant of the synagogue, without further elaboration or analysis. Thirdly, R. Moshe Isserles,in his Darkei Mosheh to Tur, Yoreh De’ah no. 265 (se’if kattan no. 11), quotes the Maharil as having cited theMaharam of Rothenburg to the effect that a lady transporting a baby boy to synagogue [on the occasion of thebaby’s circumcision celebration] should stop outside the synagogue and hand the baby to a gentleman who willcontinue to carry the baby inside, due to considerations of modesty. This provision is subsequently codified by R.Isserles in his gloss to Shulchan Arukh Yoreh De’ah 265:11. Fourthly, the Taz, in his commentary on ShulchanArukh Yoreh De’ah no. 371, se’if kattan no. 3, describes a certain question of ritual purity that involved thearchitecture of the ladies’ gallery of a synagogue.

Additionally, writing at virtually the same time as the Chatam Sofer, R. Eleazar Fleckles in his Shu”tTeshuvah Me’ahavah II, no. 229 (subsection no. 10) comments, based on the Zohar and the “Sages of truth”(chakhmei emet), that it is improper for gentlemen and ladies to occupy the same venue during synagogue prayers.However, R. Fleckles is somewhat ambiguous as to whether his words are enunciating a normative obligation orsalutary guidance.

Thus, it is precisely the Chatam Sofer who is the first authority to clearly identify the concept of asynagogue partition as an absolute obligation that is derived from Sukkah 51b-52a.

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Sukkah 5:2, which terms the construction of the gallery “a matter of Torah [law]”. R. Feinsteinclaims, by way of extrapolation, that Leviticus 19:30 is also the source for the obligation of apartition in the contemporary synagogue.

R. Feinstein’s thesis that a synagogue partition constitutes a mitzvah di’oraita wasactually earlier articulated by R. Yehudah Greenwald in his Shu”t Zikhron Yehudah I, no. 62 andby R. Abraham Isaac Hakohen Kook in his Shu”t Orach Mishpat no. 35. R. Feinstein’s thesis issubsequently reiterated by R. Joel Teitelbaum in his Shu”t Divrei Yo’el, Orach Chaim no. 10.

In an impressive discovery, R. Feinstein’s position is strengthened by R. EfraimGreenblatt in the latter’s Shu”t Reevivot Efrayim V, no. 601. R. Greenblatt cites R. YosefEngel’s Gilyonei Hashas commentary to Kiddushin 52b, who in turn employs the TalmudYerushalmi, Ma’aser Sheni 5:3, to demonstrate that the obligation for a partition in the Temple isactually biblical in nature. There, the Talmud Yerushalmi asks that – according to the opinionthat the first tithe (ma’aser rishon) may be given to a kohen as well as a levi – how does oneunderstand the verse “you shall eat it in any place, you and your houses” (Numbers 18:31), whenafter all a kohen cannot enter a cemetery. [If the verse was speaking only to a levi, it would beunderstandable, since a levi may indeed permissibly enter a cemetery.] The Yerushalmi answersthat the phrase “any place” means “any place in the Temple courtyard”. The Yerushalmiimmediately protests that this exegesis cannot be, for the verse continues “you and your houses”,implying that gentlemen and ladies will eat the ma’aser rishon together in the same venue, andyet gentlemen and ladies cannot possibly congregate together in the Temple courtyard. Theimplication of this Yerushalmi is that a partition between ladies and gentlemen in the Temple is amatter of Torah law.

R. Feinstein’s position, however, is sharply challenged by R. Yom Tov Halevi Schwarzin his Ma’aneh La’iggerot, no. 18. R. Schwarz asserts that a partition in a sanctuary duringprayers is a rabbinic mitzvah (and not a mitzvah di’oraita), derived from the prophet Zechariah.R. Schwarz believes that Tosafot in Zevachim 33a only intended to disallow tampering with theTemple architecture for a mitzvah dirabbanan that is devoid of prophetic basis. But a rabbinicdirective which is prophetically predicated does indeed generate authorization to tamper with theTemple architecture. In his more recent Shu”t Adnei Nechoshet I, no. 93, R. Schwarz iscounterattacked by a certain interlocutor who asks that even if one concedes that the mitzvah of apartition originates from the prophets rather than from the Torah, it should remain the case that itbe treated as a mitzvah di’oraita, since divrei kabbalah are treated as mitzvot di’oraita. R.Schwarz effectively responds with a two-pronged rejoinder: (a) It is in fact controversial whetherdivrei kabbalah are treated as mitzvot di’oraita2. (b) Even according to those poskim that divreikabbalah are treated as divrei torah, that is only so for a mitzvah which the prophets explicitlycommand, as distinct from the mitzvah of a partition in the Temple which is only derived by wayof indirect inference3. The partition is merely derived from an indirect reference of the prophet

2 Even so, R. Yechiel Danziger in his Zemanei HaPurim (B’nei Berak 5765), ch. 2, calculates that the majority ofposkim holds that divrei kabbalah are indeed treated as divrei torah, and that such is the halakhah.

3 However, one must then inquire how to reconcile R. Schwarz’ proposition with Tosafot to Zevachim 33a, s.v.vili’avad. For if indeed it is the case (as R. Schwarz declares) that a partition in the Sanctuary only constituted arabbinic mitzvah (as distinct from a mitzvah midivrei kabbalah), then according to Tosafot it should not have meritedthe overriding of the original Temple blueprints. The fact that the Sages constructed a balcony ipso facto means thatit must have represented more than a mitzvah dirabbanan. Evidently, what R. Schwarz must mean is that there aretwo classes of divrei kabbalah – those that are directly instructed by the prophets, which according to some poskimare to be treated like divrei torah, and those that are only indirectly inferred from the prophets, which according to

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Zechariah. Thus, R. Schwarz stands by his original position that a synagogue partition isdefinitely a mitzvah dirabbanan and not a mitzvah di’oraita.

R. Schwarz further challenges R. Feinstein’s willingness to apply Leviticus 19:30 to asynagogue, when the sanctity of a synagogue is obviously not of the same ranking as the sanctityof the Temple. [Without explicitly identifying R. Feinstein, this remonstration is also articulatedby R. Benjamin Silber in his Shu”t Az Nidbiru XII, no. 48.] R. Feinstein himself takescognizance of this problem, answering that although a synagogue may not be of identical statureto the Temple, nevertheless during the prayers themselves the congregation must treatthemselves with the equivalent reverence as though they are present in the Temple. [R. Feinsteinsupports his claim by quoting the Ran4 who explains that the Sages endowed a synagogue withsanctity on account of the prayers that are recited therein.] R. Schwartz objects that this equationappears to be entirely unsubstantiated5.

all poskim are only to be treated as a mitzvah dirabbanan – but that both kinds of divrei kabbalah are sufficientlyauthoritative to override the original Temple blueprints.

R. Schwarz’ analysis regarding the possible existence of two distinct classes of divrei kabbalah is welltaken. Nevertheless, R. Schwartz’ resulting thesis that the Temple balcony is a rabbinic mitzvah appearsincompatible with the Yerushalmi in Sukkah 5:2, where the construction of the Temple balcony is described as aDevar Torah - “a matter of Torah [law]”. R. Schwarz himself takes cognizance of this point and responds thatsometimes the term Devar Torah does not literally mean a mitzvah di’oraita. As evidence for this approach, R.Schwarz cites the gemara in Eruvin 4b which states that there is a “Devar Torah” that if a foreign substance coversthe majority of a person’s corporeal surface area, and the person objects to the presence of the foreign substance, theperson is unable to immerse in a mikveh. Yet, in context, the gemara teaches that this law is not derived from writtenscripture, but rather from a halakhah limosheh misinai. Thus, argues R. Schwarz, “Devar Torah” does notnecessarily mean a commandment of the Written Torah, and so it does not support R. Feinstein’s claim that theTemple balcony is biblically required as a function of Leviticus 19:30. Indeed, observes R. Schwarz, the halakhah isthat any doubt regarding a halakhah limosheh misinai (e.g. a doubt regarding orlah fruit in the Diaspora) isadjudicated to the side of leniency, demonstrating that a halakhah limosheh misinai is markedly different that a lawderived from the Written Torah. Similarly, the gemara in Berakhot 19b states that there is a “Devar Torah” that atent with the volumetric space of a handbreath by a handbreadth by a handbreath and which hosts a corpse is capableof shielding the outside world from the corpse contamination. Yet, here as well, the gemara is actually referring to ahalakhah limosheh misinai.

However, with all due reverence to R. Schwarz, it would seem to this writer that R. Schwarz’ references toEruvin 4b and Berakhot 19b actually strengthen R. Feinstein’s case. A halakhah limosheh misinai is assuredly amatter of Torah law, i.e. the direct commandment of the Almighty. A halakhah limosheh misinai does not appear inthe Written Torah, but it is still integral to the Torah, being featured by the Oral Torah. [It is true that any doubtregarding a halakhah limosheh misinai is to be adjudicated to the side of leniency, but that principle itself is part andparcel of the Oral Torah.]

As such, there is cogent reason to interpret “Devar Torah” in the Yerushalmi Sukkah 5:2 as a matter ofTorah law, as distinct from rabbinic legislation. And since, in the case of Sanctuary decorum, it is clear that there isa verse in the Written Torah which governs the worshipper’s behaviour, viz. Leviticus 19:30, there is no need tointerpret Devar Torah in the Yerushalmi Sukkah 5:2 as a reference to a halakhah limosheh misinai. Rather, it can beunderstood in a straightforward manner: there is a mitzvah di’oraita, based on Leviticus 19:30, for ladies andgentlemen to be separated by means of a balcony when they are assembled in the Temple. And even though theprophecy of Zechariah only contains an indirect reference to the need for a partition, the prophet is offering a giluimilta – an illuminating reflection – on what Leviticus 19:30 actually means in terms of practical application. Andthis vindication of R. Feinstein’s position seems all the more strengthened by the Yerushalmi in Ma’aser Sheni 5:3cited by the Reevivot Efrayim, as discussed earlier in the text.

4 Ran Al HaRif, Megillah 8a (in the pagination of the Rif), s.v. uman disharei.

5 It seems to this writer that a defense to R. Feinstein’s equation may be adduced from Tosafot to Shevu’ot 7b (s.v.ba’avodah zarah hu omer lima’an tamei et mikdashi), who translate the term Mikdashi in Leviticus 20:3 as “theSanctity of My Name”. Thus, one could argue that when the members of the congregation are occupied with the

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R. Feinstein’s position is also challenged by R. Yehudah Herzl Henkin in the latter’sShu”t Benei Vanim I, no. 3, where R. Henkin infers from Rashi to Sukkah 51b (s.v. keraashkechu) that a Temple partition is to be reckoned as a mitzvah dirabbanan, since Rashi callsthe requirement “a fence”. And all the more so, in the synagogue a partition is certainly no morethan a mitzvah dirabbanan6.

R. Henkin further torpedoes the conclusion of R. Feinstein by citing the commentary ofthe Maharsha in his Chiddushei Aggadot to Sukkah 51b, where the Maharsha explains that, injustifying the construction of the gallery, the gemara means to say that there is no prohibitionagainst tampering with the Temple blueprints when the purpose of the renovation is to avoid aprohibition unrelated to the sacrificial service. One may directly infer from the Maharsha, saysR. Henkin, that the partition was a dirabbanan requirement whose purpose was to avoid aprohibition unrelated to the sacrificial service7.

sanctity of the Name of G-d, by reciting kaddish, kedushah or barkhu, they are present in a virtual Temple and arebiblically bound by the commandment “you shall revere My Sanctuary” canonized by Leviticus 19:30.

As for R. Feinstein’s citation of the Ran, it seems to this writer that R. Feinstein’s actual proof stems fromthe Ran’s conspicuous avoidance to offer the obvious explanation that the Sages simply endowed the synagoguewith sanctity on account of the biblical sanctity of the Temple, seeing as a synagogue is considered a “MinorSanctuary” by Ezekiel 11:16 (as per Megillah 29a). The fact that the Ran insisted instead on attributing the rabbinicdecree to ordain a synagogue with sanctity to the special prayers that are recited therein (i.e. kaddish, kedushah andbarkhu) reveals that the sanctity of those prayers is actually biblical in nature. [The axiomatic assumption of R.Feinstein is that the Sages would only decree rabbinic sanctity in a synagogue on account of a pre-existing biblicalsanctity.]

See also R. Ben-Zion Meir Chai Uziel in his Shu”t Piskei Uziel no. 49, who interprets the Ran differently(and more stringently) than R. Feinstein. R. Uziel asserts that the Ran actually means that Leviticus 19:30 applieswith biblical force in the contemporary synagogue. Thus, for R. Uziel it is obvious that the obligation of a partitionin the contemporary synagogue is just as great as the obligation of a partition in the Temple.

In any event, quite apart from the Ran’s opinion, the question of whether the sanctity of a contemporarysynagogue is biblical or rabbinic in nature is a well-trodden dispute among the Rishonim. See EncyclopediaTalmudit, III, p. 194, for a digest of views on this subject. [The point of R. Feinstein, however, is to claim that eventhose Rishonim who hold that the sanctity of a synagogue is only rabbinic in nature should agree that duringkaddish, kedushah or barkhu the sanctity becomes biblical in nature.]

6 It seems to this writer that R. Feinstein’s position could be defended by explaining that Rashi means that theessence of the mitzvah di’oraita is to establish a fence. Indeed, R. Yitzchak Ya’akov Weiss in his Shu”t MinchatYitzchak II, no. 20, interprets Rashi to Leviticus 19:2 in precisely such a manner. Thus, the word “fence” in Rashi’scommentary does not mean a mere safeguard. Rather, the word “fence” means the partition itself, and the partitionitself is the cheftza of the mitzvah di’oraita in question.

Alternatively, even if one translates “fence” as a mere safeguard, one might still defend R. Feinstein bypositing that the Sanctuary partition is indeed a mitzvah di’oraita but that the purpose of this mitzvah di’oraita is tosafeguard against the violation of other biblical prohibitions. The justification for such a novel suggestion emergesfrom R. Yitzchak Yosef’s introduction to his Yalkut Yosef, Hilkhot Basar Bichalav, where he describes several casesof biblical interdictions which constitute decrees to safeguard against the violation of other biblical commandments.[E.g., the prohibition against possessing chametz on Passover is a biblical safeguard against eating chametz onPassover.] Thus, the fact that Rashi employs the term “a fence” does not necessarily preclude the possibility that itmay be a mitzvah di’oraita.

7 R. Feinstein himself acknowledges the formidable difficulty posed by the inference that may be drawn from theMaharsha, but defends himself by dismissing that inference in light of the gemara in Chullin 83b which invokes theprohibition against tampering with the Temple architecture in the context of covering avian blood, even though thatis a context which is entirely separate from the sacrificial service. However, R. Henkin refutes R. Feinstein’sattempted self-defence by observing that the covering of avian blood is necessarily a natural consequence ofsacrificing birds, and is one that cannot be compared to the question of constructing a ladies’ gallery in the Temple.[After all, it is inevitable that blood will emerge from sacrificial birds during melikah. By contradistinction, the

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Ultimately, then, two fundamental arguments are being launched against R. Feinstein’sthesis that a synagogue partition constitutes a mitzvah di’oraita. Perhaps the construction of theTemple gallery did not constitute a mitzvah di’oraita. And perhaps the requirement to maintaindecorum in the contemporary synagogue does not constitute a mitzvah di’oraita. Either of thesecogent propositions would suffice to neutralize R. Feinstein’s thesis.

sacrificial service does not necessarily result in ladies choosing to congregate in the Temple’s external courtyard.And even the obligation of ladies congregating in the Temple’s external courtyard for Hak’hel once in seven years isunrelated to the sacrificial service.]

Nevertheless, despite the cogency of R. Henkin’s attack on R. Feinstein, it seems to this writer that R.Feinstein’s thesis remains sustainable based on Tosafot to Zevachim 33a (s.v. vili’avad) who state that renovationscould not be effectuated in the Temple for the sake of facilitating a rabbinic decree against a metzora entering a fewpaces into the inner courtyard [-a decree which would be designed to prevent the metzora from venturing in furtherthan he is actually permitted (gezeirah shema yarbeh bipisi’ot)]. Yet, a rabbinic decree against a metzora entering afew paces into the inner courtyard is just as unrelated to the sacrificial service as the decision to construct a galleryfor the ladies at the Rejoicing of the Water Drawing. In either case the proposed renovation does nothing to facilitatethe sacrificial service, but is rather designed to prevent an external transgression (-contamination of the Temple inone case, lack of decorum for the Temple in the other). This clearly contradicts the inference drawn from theMaharsha, and upholds the thesis that the construction of a gallery in the Temple constituted compliance with amitzvah di’oraita (in contradistinction to the proposed renovations for the sake of gezeirah shema yarbeh bipisi’ot).

Admittedly, one could counter by positing a subtle distinction between the cases of the metzora and theladies’ gallery, even though both of those instances involved the avoidance of an external prohibition. Thedistinction would lie in the fact that the proposed renovation in the context of the metzora would allow the metzorato stand outside the courtyard wall and insert his hands through an aperture in the wall in order to perform semikhahon the head of his asham sacrifice which is standing inside. Thus, although the purpose of the proposed renovationwas to avoid an external transgression unrelated to the sacrificial service, the actual logistics of the proposedrenovation would have indeed involved a change in the sacrificial service. Still, it seems questionable whether sucha renovation can be termed as being “for the sake of the sacrificial service”, and so there remains a safek in favour ofthe plausibility of R. Feinstein’s thesis.

[Phrased alternatively, in the case of the metzora, the contemplated renovation is designed to solve aproblem one degree removed from the sacrifical service, whereas in the case of the Rejoicing of the Water Drawing,the actualized renovation is designed to solve a problem two degrees removed from the sacrificial service. How so?In the case of the metzora, the sacrificial service dictates that semikhah be performed. A consequence of thesemikhah is that the owner might venture further into the courtyard than he is actually permitted. Thus, the putativerenovation would solve a problem that is one degree removed from the service. In the case of the Rejoicing of theWater Drawing, the daily water libation service in the Temple on the holiday of Sukkot necessitates a celebration,pursuant to the injunction “you shall draw water with joy” (Isaiah 12:3) as expounded by the gemara in Sukkah 48b.The celebration, in turn, may lead to lack of decorum in the Sanctuary. Thus, the renovation would solve a problemthat is two degrees removed from the service. Accordingly, it seems questionable why there should be a differencewhether the problem being solved is one degree or two degrees removed from the service, and so there remains asafek in favour of R. Feinstein’s thesis.]

At the same time, it must be noted that the Chazon Ish (Kodashim 8:4) rejects Tosafot’s entire approach tothe issue of gezeirah shema yarbeh bipisi’ot, and posits instead that the Sages of the Talmud simply possessed anoral tradition that tampering with the architecture of the Temple for the sake of semikhah is contraindicated. Ineffect, the Chazon Ish voids the entire sugya in Zevachim from any meaning imputed to it by R. Feinstein, whichleads to the inevitable conclusion that R. Feinstein is refuted by the Maharsha. Nevertheless, the Chazon Ish ishimself contradicted by R. Ezekiel Landau in his Doresh Litzion no. 11 (subsection derekh nachash alei tzur,paragraph that begins with the words vi’omer ani lifee hamaskana). R. Landau appears to have fully anticipated theChazon Ish’s challenge to Tosafot [obviously well over a century before the Chazon Ish was even born] and to haveresolved it quite smoothly, thus upholding the words of Tosafot, and sustaining the plausibility of R. Feinstein’sthesis. Thus, it remains the case that there exists a safek that perhaps the construction of the ladies’ gallery in theTemple constituted a mitzvah di’oraita, as R. Feinstein indeed rules.

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It would appear to this writer that each of these questions remains an insoluble safek, andso R. Feinstein’s thesis emerges as being a safek possibility8.

B. ABSOLUTENESS OF DEMOGRAPHIC SEPARATION

To say that there is a mitzvah for the Temple [and, by extension, the synagogue] topossess a partition does not necessarily mean that the demographic separation orchestrated by thepartition must be one hundred percent absolute. The precise extent of the absoluteness is actuallya matter of some controversy.

8 As for the cogent objections raised by R. Feinstein’s opponents that have been outlined in the text, see suprafootnotes nos. 2, 3, 5, 6 and 7 for equally cogent solutions.

In a telephone conversation with this writer on January 31, 2008, R. J. David Bleich cogently remonstratedthat this conclusion would lead to the reductio ad absurdum that all of Jewry during the days of the first Temple waspossibly guilty of violating a biblical commandment. [After all, the balcony described by the gemara in Sukkah 51bwas only constructed during the second Temple era. And so, throughout the first Temple era, whenever Jews wouldcongregate in the external courtyard (e.g. for Hak’hel or for the Rejoicing of the Water Drawing), they were possiblytransgressing Leviticus 19:30.] Although one might technically respond by invoking the gemara in Chullin 7a to theeffect that divine providence can arrange for a scholar of a later generation to discover a chiddush that completelyescaped the attention of earlier generations (“makom hinichu li avotai lihitgader bo”), R. Bleich correctly insists thatit is formidably difficult to apply this dictum when it results in the incrimination of previous generations. Perhapsone may resolve this difficulty on the basis of the Sefer Yere’im no. 324 and the Minchat Chinukh (mitzvah no. 294,top of p. 266 in the Makhon Yerushalayim edition), who both declare that the mitzvah of Leviticus 19:30 has beenassigned to the Sages for definition. Thus, one may postulate that the Sages of the second Temple realized that it isnecessary to define Leviticus 19:30 as mandating the existence of a balcony in the Sanctuary, whereupon itthenceforth became binding Torah law (without retroactively condemning the Jews of the first Temple era).

{In support of this approach, it may be noted that there are at least four other precedents in halakhah wherea view has been expressed by the Rishonim that the Torah empowers the Sages to define the parameters of thedi’oraita law.

Firstly, regarding the prohibition against labor on Chol Hamo’ed, many authorities (catalogued by theMishnah Berurah in his Bi’ur Halakhah to Orach Chaim no. 530) submit that it is di’oraita in origin and that theTorah empowers the Sages to define its parameters. The Bi’ur Halakhah concludes that, according to these poskim,any doubt that arises regarding the laws of Chol Hamo’ed must be adjudicated to the side of stringency, seeing assafek di’oraita lichumra.

Secondly, regarding the non-culinary afflictions of Yom Kippur, the Mishnah Berurah to Orach Chaim no.611 (se’if kattan no. 3) cites several authorities who contend that these restrictions are di’oraita in origin. TheMishnah Berurah concludes that, according to these poskim, any doubt that arises regarding the laws of the non-culinary afflictions must be adjudicated to the side of stringency, seeing as safek di’oraita lichumra, In his Sha’arHatziyun (se’if kattan no. 1), the Mishnah Berurah cites the Ran as having asserted that the Torah empowers theSages to define the parameters of these non-culinary afflictions.

Thirdly, regarding the permission of a lady to remarry when her insolubly missing husband is reported tobe dead on the basis of a solitary witness, three Rishonim explain that the Torah empowers the Sages to define theparameters of credible testimony: Re’ah quoted by the Ritva to Yevamot 88a (s.v. mitokh), the Ritva himself (ibid.),and the Nimukei Yosef (ibid.). According to the Chazon Ish (Even Ha’ezer 22:3), there is even a fourth Rishon whoespouses this position: Tosafot to Yevamot 88a (s.v. mitokh). [However, the Chazon Ish is disputed by R. SamuelHalevi Wosner in the latter’s Shu”t Shevet Halevi IV, no. 163.]

Fourthly, the Beit Yosef, toward the end of Yoreh De’ah no. 178, expresses the possibility that Leviticus18:3 is a Torah law whose definitional parameters have been assigned to the Sages for purposes of definition.

[Additionally, although it is a thesis not found among the Rishonim, it may be noted that the Chazon Ish(Orach Chaim 39:1) demonstrates that the definitions of the shi’urim (e.g. the mathematical measurement of akizayit) are all Torah laws whose definitional parameters have been handed over to the Sages to decide. Indeed, as asupport to the Chazon Ish, this writer would point to the gemara in Yoma 80a which indicates that a Sanhedrin canalter the definition of a kizayit.]}

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R. Feinstein, in his Shu”t Iggerot Mosheh, Orach Chaim I, nos. 39 (final paragraph) and41 (paragraph that begins with the word utimeihani) demonstrates that it is actually permissiblefor one lady to be present in the gentlemen’s section during services. [And, evidently, the reverseis also true: it is permissible, according to R. Feinstein, for one gentleman to be present in thelady’s section during services.] R. Feinstein proves this from the story of Eli the high priest andChanah who were assembled together in the Mishkan sanctuary without any partition betweenthem, as is recorded in I Samuel 1:9-18. Furthermore, Tosafot to Kiddushin 52b, s.v. vikhi ishahba’azarah minayin, say that when a lady needs to bring an offering in the Temple, e.g. she is anezirah, she may enter the Temple courtyard to do so. But, reasons R. Feinstein, there are surelyplenty of gentlemen (i.e. the kohanim) already present in the courtyard when the nezirah entersthe courtyard. Thus, we see that one lady may be present among many gentlemen in theSanctuary [and likewise one gentlemen may be present among many ladies in the Sanctuary.]

R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, no. 4, strengthens this permission,authorizing the presence of one or two ladies in the gentlemen’s section. In addition to thesources marshaled by R. Feinstein, R. Henkin quotes the gemara in Megillah 23a (codified byShulchan Arukh Orach Chaim 282:3) that, in theory, a lady may be called to the Torah whenthere are seven aliyot on the Sabbath. Obviously, reasons R. Henkin, giving an aliyah to a ladynecessitates her entering the gentlemen’s section, and yet there is no problem with such alogistical arrangement. R. Henkin feels that it is equally evident that – in theory – even twoconsecutive aliyot may be given to ladies, meaning that – in effect – there will be two ladiessimultaneously present in the gentlemen’s section.

Although R. Feinstein does not specifically address the situation of two ladies, it seems tothis writer that he would indeed agree with R. Henkin that even the presence of two ladies ispermitted, in light of R. Feinstein’s pronouncement (op. cit., at the end of the latter paragraph) tothe effect that “the main prohibition is where many [harbeh] gentlemen and ladies havegathered”. The term harbeh implies the presence of at least three individuals, as is evident fromthe term reshut harabim employed in the context of the laws of damages and ritual purity, aswell as the term al da’at rabim in the context of vows. [See, for example, Gittin 46a.] Thus.according to both R. Feinstein and R. Henkin, there is only a need for a partition when there arethree gentlemen and three ladies gathered together in the Sanctuary. But three gentlemen withone or two ladies, or three ladies with one or two gentlemen, is permissible without any partition.

However, there is a more stringent approach. As R. Henkin himself notes, R. EleazarFleckles, in his Shu”t Teshuvah Me’ahavah II, no. 229 (subsection no, 10), refuses to permitadmission of even so much as one lady inside the gentlemen’s section. [And, surely, R. Fleckleswould prohibit admission of so much as one gentleman in the ladies’ section.] Likewise, as citedin section A above, R. Efraim Greenblatt, in his Shu”t Reevivot Efrayim V, no. 601, quotes theGilyonei Hashas to Kiddushin 52b to the effect that – based on the Yerushalmi Ma’aser Sheni5:3 – it is prohibited for even so much as one lady to be present among gentlemen in theSanctuary. [And, likewise, it would appear that it would be prohibited according to this sourcefor even one gentleman to be present among ladies in the Sanctuary.] Arguably, one couldimpute such a position [as the Gilyonei Hashas in fact does] to Rashi in Kiddushin 52b, s.v. vikhiishah ba’azarah minayin.

The problem, however, is how this stringent camp would deal with the aforementionedlenient proofs from Chanah, the nezirah and ladies receiving an aliyah. It would appear to thiswriter as follows. Even according to the stringent camp, there is only a prohibition for a lady toenter the gentlemen’s area when there are at least three gentlemen. But if there is only one or twogentlemen, then one or two ladies may also be present. This explains the story of Chanah, where

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only one lady and one gentleman were present. Likewise, when a nezirah needs to bring heroffering, all the kohanim (except for two) who have to be evacuated from the courtyard. And forladies to receive an aliyah, the Torah scroll would have to be transported to the ladies’ side.

In summary, then, there are two approaches to the absoluteness of the demographicseparation that must orchestrated by a synagogue partition. According to Tosafot, the IggerotMosheh and the Benei Vanim, there is a need for a sanctuary partition when there are both threeladies and three gentlemen. Thus, one or two ladies may be present on the gentlemen’s sideduring synagogue services, and one or two gentlemen may be present on the ladies’ side duringsynagogue services. According to the Talmud Yerushalmi, the Teshuvah Me’ahavah, theReevivot Efrayim, and – in the opinion of the Gilyonei Hashas – Rashi, there is need for asanctuary partition when there are either three gentlemen or three ladies. Thus, there cannot beeven so much as one lady on the gentlemen’s side during synagogue services, and there cannotbe even so much as one gentleman on the ladies’ side during synagogue services.

C. SPECIFICATIONS OF THE PARTITION

The exact specifications of a synagogue partition are subject to a three-way dispute:

(a) R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, nos. 1-2, rules based onthe Rambam in Hilkhot Tuma’t Tzara’at 10:12 that the mechitzah for asynagogue is the same mechitzah which is designated by a halakhah limoshehmisinai to suffice for the laws of Shabbat, Sukkah, and Kil’ayim, i.e., a tenhandbreadth high partition. Thus, he requires a geographic barrier9.

(b) R. Moshe Feinstein in his Shu”t Iggerot Mosheh, Orach Chaim I, no. 39 andagain in Orach Chaim III, no. 23 requires an eighteen-handbreadth highpartition. Twice in the first responsum, and twice again in the secondresponsum, does R. Feinstein indicate that the partition must be one acrosswhich it is impossible to move one’s hand. Thus, R. Feinstein requires akinaesthetic barrier10.

9 R. Henkin further reports that this was the opinion of his grandfather R. Joseph Elijah Henkin, as well as that of R.Joseph Ber Soloveitchik (at least in circumstances of duress). [In the appendix to that volume, an exchange of lettersbetween R. Yehudah Herzl Henkin and R. Menasheh Klein appears, debating this very point.] Similarly, R. AsherLopatin of Chicago reports that this was the position of R. Aharon Soloveitchik (Anshe Sholom B’nei Israel News,Issue VIII, Vol. II, Summer 5759 [available at http://www.asbi.org/news/newssum99.pdf].) In a parallel manner, butmore limited in its scope, R. Hershel Shachter, on pp. 46-47 of his Mipininei HaRav, reports that this was position ofR. Joseph Ber Soloveitchik, with the caveat added that it is to be applied only in circumstances of duress.

It is noteworthy that the gemara in Pesachim 6a requires only a ten handbreadth partition between oneselfand a gentile’s chametz that is in one’s house on Passover, not a kinaesthetic barrier or a visual barrier. Perhaps thisis a support to the geographic barrier camp. Another support might potentially be adduced from Sukkah 7a-b, whereRava introduces the chiddush that although a sukkah normally requires three walls to be kosher, on the Sabbath ofSukkot one may rely upon pasei beira’ot covered by s’kakh or on a mavoi mefulash that is adorned by a lechi and iscovered with s’khakh (notwithstanding the absence of three proper walls in either of those cases). The rationale isone of migo. Namely, since the walls are good enough to serve as mechitzot for the Sabbath, they are also goodenough to serve as walls for a sukkah. Perhaps one could argue that, mutatis mutandis, a ten-handbreadth partitionsuffices in a synagogue for prayer, since (migo) a ten-handbreadth high mechitzah is sufficient for the laws ofdomains on the Sabbath, the architecture of a sukkah and the planting of kil’ayim.

10 This position is also espoused by R. Leib Baron in his Birkat Yehudah no. 5, R. Yechiel Ya’akov Weinberg in hisShu”t Seridei Esh II, no.14 and R. Shaul Yisraeli in his Shu”t Bimar’eh Habazak (exact reference N.A.). [However,

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In a subsequent and cryptic responsum (Orach Chaim IV, no. 29), R.Feinstein permits small windows with apertures of three inches or less.Although R. Feinstein never explains why this is so, the reason appears to bethat an aperture of three inches or less is insufficiently large to admit one’shand. After all, in Orach Chaim I, no. 136, R. Feinstein defines a cubit asbeing 21.25 inches, which would make a handbreadth equal 3.54 inches11.Thus, it is impossible (according to R. Feinstein’s reckoning) for a hand totraverse an aperture of three inches or less. In any event, it is interesting tonote that even this leniency (viz. an aperture of three inches or less) isdiscouraged by R. Feinstein if the congregation is composed of “those whofear Hashem Yitbarakh, and those who are Benei Torah”.

Thus, it emerges that R. Feinstein disallows the employment of lavudfor purposes of an eighteen handbreadth high barrier. Indeed, it is only logicalfor R. Feinstein to disallow the application of lavud, since, if lavud could beapplied, then gud asik mechitzatah should also be applied12, in which case a

R. Baron adds halakhah vi’ein morin ken. Namely, considerations of policy for the sake of advancing thecongregation’s spiritual welfare dictate that one not simply be satisfied with a an eighteen-handbreadth high barrier.Rather, one should implement position (iii) outlined further in the text, as a matter of practical policy.]

It seems to this writer that a novel proof may be adduced in favor of the kinaesthetic barrier theory from theMishnah Berurah and the Arukh Hashulchan in their respective treatments of Shulchan Arukh Orach Chaim 55:14.The Shulchan Arukh rules that a solitary individual who is separated by a partition from nine other gentlemen maycombine with them to form a quorum, provided that there is a window through which the solitary individual’s facecan be seen by the others. The Mishnah Berurah (se’if kattan no. 52) deduces from this that in the case that asolitary gentleman is located in the ladies’ section of the sanctuary, and is separated from the other nine individuals[who are located in the gentlemen’s section] by the synagogue partition, yet his face is visible to the other gentlemenfrom a window in the partition, he can combine with them to form a quorum. The Mishnah Berurah continues,however, that it is preferable for the gentleman “to descend” from the ladies’ section if he can easily do so, andthereby join his nine colleagues in the gentlemen’s section of the synagogue. By contradistinction, the ArukhHashulchan (se’if kattan no. 20) emphatically dismisses the possibility of combining a gentleman located in theladies’ section. The Arukh Hashulchan claims that the Shulchan Arukh only countenances synthesizing the outlyingJew with the inside nine when the outlying Jew is literally outdoors, i.e. in the street or in the courtyard immediatelyadjacent to the synagogue, and is peering through the window. But when the outlying Jew is in a separate building,which is effectively the case when he is situated in the ladies’ section, his peering through the window in the ladies’section is inadequate to combine him with the other nine gentlemen.

Seemingly, these remarks of the Mishnah Berurah and the Arukh Hashulchan reveal that they bothunderstood the nature of a synagogue partition to be one in which the faces, and only the faces, of people on theother side are visible. This apparently serves to vindicate the position of R. Moshe Feinstein. [See, however, thefinal paragraph of infra, footnote no. 14, for a potential deflection of this proof.]

11 For a list of twenty-six other mathematical calculations as to the size of a handbreadth compiled by R. J. DavidBleich, see pp. 97-99 of Tradition 38:4. Incidentally, it seems to this student that the largest two measurementsamong the list presented by R. Bleich (viz. that of Shu”t Chatam Sofer, Orach Chaim no. 181 and the Tosfot YomTov to Tractate Pe’ah 6:6) may be neglected for purposes of practical halakhah. After all, R. Feinstein himself (loc.cit.) suggests that the zoll measurement in the time of the Chatam Sofer may have been smaller than its equivalent incontemporary German measurements. And the Tosfot Yom Tov in question seems to have been focusing upon massrather than volume, and was operating with a liquid possessing a density greater than that of water. In an oralcommunication with this student, R. Bleich acknowledged the possible plausibility of this student’s thesis, such thatthe largest credible handbreadth for purposes of practical halakhah (when it results in a stringency) would becomethat of R. Shmuel Salant cited by the Chazon Ish (Orach Chaim 39:5), viz. 10.0 cm [= 3.937 inches].

12 Lavud dictates that gaps less than three handbreadths in size are virtually filled. Gud asik mechitzatah dictates thatany ten-handbreadth high wall virtually extends upward indefinitely, ad coelum. Each of these two principlesrepresents a halakhah limosheh misinai, as per the gemara in Eruvin 4b.

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ten-handbreadth barrier would suffice in the first place! The very nature of R.Feinstein’s demand for an eighteen-handbreadth high partition ipso factomeans that lavud cannot be invoked. Obviously, then, the eighteenhandbreadths of height must be so solid that motion across by a hand isimpossible. The most R. Feinstein would ever allow is an aperture of threeinches or less, and even that is to be discouraged if the congregation is onewhich is spiritually elevated.

[It should also be noted that since R. Feinstein prohibits gaps thatexceed three inches, the barrier must not only be a solid eighteen handbreadthshigh, but it must evidently also solidly span the entire sanctuary from wall towall, without a horizontal break of three inches or more.]

Nevertheless, R. Feinstein introduces a leniency into the kinaestheticbarrier camp’s equation in Orach Chaim III, no. 23, where he observes thatnowadays a five foot barrier suffices to prevent moving one’s hand across thepartition, given the contemporary stature of human beings. Therefore, hedirects that one should not protest a synagogue which relies on a five foot highmechitzah, even though five feet equals slightly less than his preference foreighteen handbreadths. In his next responsum (Orach Chaim III, no. 24), R.Feinstein even suggests the further leniency that perhaps fifty-eight inchessuffices to accomplish the kinaesthetic barrier as well13. But under nocircumstances will R. Feinstein tolerate a partition less than fifty-eight inchesin height.

(c) In his Shu”t Divrei Yo’el, Orach Chaim no. 10, R. Joel Teitelbaum takes issuewith R. Feinstein, and submits that the partition must be a visual barrier.Thus, it must be opaque and higher than any human being present14. However,

13 Surprisingly, in his subsequently published volume of Orach Chaim IV, R. Feinstein features three responsaregarding a synagogue partition (nos. 30-32) which mention sixty inches as the baseline requirement, without anyreference to his previously published suggestion that fifty-eight inches might suffice. The matter would appear torequire further analysis, but in any event, the practical application of this question is clearly open to empiricalresolution, since in all of his responsa R. Feinstein definitively rules that the minimum height of the synagoguepartition is that which exceeds the shoulder height of the ladies in synagogue. Thus, on any given day in synagogue,one could simply compare the height of the partition to the height of the tallest lady’s shoulders, to assess whether ornot the synagogue partition is valid according to R. Feinstein. [Since it is obviously inconvenient to suddenlydiscover in the midst of services that the synagogue partition is disqualified on account of the presence of tall ladies,it would seem prudent to this writer for a synagogue that follows the kinaesthetic barrier camp to avoid relianceupon a fifty-eight inch high partition, and rather opt for a sixty inch (or even better yet, an eighteen handbreadthhigh) partition, so that the synagogue will be capable of accommodating unusually tall ladies.]

It should also be noted that, as described in section B above, there is a dispute among the poskim whetherthe demographic separation that is orchestrated by the synagogue partition must be absolute. According to Tosafot,the Iggerot Mosheh and the Benei Vanim, it is permissible for one or two ladies to be present in the gentlemen’ssection during services. Accordingly, the presence of one [or two] unusually tall ladies would not disqualify thesynagogue partition.

14 This position is also espoused by R. Elijah Meir Bloch (whose responsum is published by R. Chanania Yom TovLipa Deitsch on pp. 53-59 of the latter’s Taharat Yom Tov VI), R. Raphael Blum in his Tal Hashamayim(introduction, p. 28), R. Menasheh Klein in his Shu”t Mishneh Halakhot VII, no. 12, R. Aharon Kotler in his Shu”tMishnat Rabbi Aharon, Orach Chaim no. 13 (penultimate paragraph), R. Simchah Rabinowitz in his Piskei Teshuvotto Mishnah Berurah II, Orach Chaim no. 151 (subsection no. 4), R. Moshe Schick in his Shu”t Maharam Shik,Orach Chaim no. 77, R. Menachem Mendel Schneersohn in his Sha’arei Halakhah Uminhag, Orach Chaim I, no.

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R. Teitelbaum concedes that it is permitted (and indeed appropriate) for theladies to be capable of seeing the gentlemen, just like in the Temple, and so aone-way-glass partition is in order15.

Most impressively, a newly discovered manuscript, published as Shu”tRabbi Akiva Eger Hachadash IV, Orach Chaim no. 13 (subsection no. 5),attributes this position to R. Akiva Eger. That responsum is truly remarkableboth because it was written only four years after the Chatam Sofer's originalresponsum canonizing the mitzvah obligation of a syangogue partition(Choshen Mishpat no. 190) and because R. Akiva Eger is none other than thefather-in-law of the Chatam Sofer. Assuming that this newly discoveredmanuscript is accurate, R. Akiva Eger's words support the visual barriercamp16.

It seems to this writer that an adjudication of this dispute is virtually impossible, for eachcamp presents an equally credible piece of evidence in its favor. Each of the three camps is to becommended for having illuminated a legitimate approach to the Chatam Sofer’s originalresponsum.

92, R. Yom Tov Halevi Schwarz in his Ma’aneh La’iggerot nos. 18-20 and 63, R. Benjamin Silber in his Shu”t AzNidbiru XII, no. 48, R. Chaim Sofer in his Shu”t Machaneh Chaim III, no. 10, R. Moshe Stern in his Shu”t Be’erMosheh IV, no. 147 (subsection no. 29) and R. Eliezer Yehudah Waldenberg in his Shu”t Tzitz Eliezer VII, no. 8and again in his Shu”t Tzitz Eliezer XX, no. 7. Letters attributed to the Chazon Ish and to R. Yitzchak Ya’akovWeiss appear in the Or Yisra’el journal (Tevet 5759, p. 119) and the Likutei Teshuvot Minchat Yitzchak (no. 14),respectively, which champion this position as well.

A variation of this position is offered by R. Malkiel Tzevi Halevi Tannenbaum in his Shu”t Divrei MalkielV, no. 18. R. Tannenbaum believes that reverence in the Sanctuary is achieved when either the ladies’ section islocated on a balcony (even though it is visible), or – if located on the same level plane as the gentlemen’s section –when it is obscured by a visual barrier. Thus, in effect, R. Tannenbaum’s approach serves as a compromise betweenthe kinaesthetic barrier and visual barrier camps.

If R. Tannenbaum’s approach is accepted, then the putative support to the kinaesthetic barrier theory that isgleaned from the words of the Mishnah Berurah [as per supra footnote no. 10] is thereby deflected, since theMishnah Berurah was clearly only speaking of a balcony situation. Although support in favor of the kinaestheticbarrier camp was also marshalled from the Arukh Hashulchan [supra footnote no. 10], one could perhaps argue thatthe Arukh Hashulchan also only envisaged a balacony situation – although this latter point is not entirely clear.

15 In addition to the sources marshalled by R. Teitelbaum to this end, it seems to this writer that a further proof existsfrom the Taz to Shulchan Arukh Orach Chaim no. 82 (se’if kattan no. 2) who approvingly cites the Maharshal to theeffect that a lady who possesses the status of a niddah is advised to avoid looking at the open Torah scroll when it israised during services. Evidently, the Maharshal took it for granted that a lady attending synagogue is theoreticallycapable of beholding the Torah scroll with optical clarity. Since, presumably, the Torah scroll is read in thegentlemen’s section, the Maharshal must have envisaged the possibility of a lady seeing the gentlemen. Admittedly,however, this proof might not be acceptable to all poskim, thanks to the dispute cited in section B above regardingthe absoluteness of the demographic separation that must be orchestrated by the synagogue partition. According toTosafot, the Iggerot Mosheh and the Benei Vanim, it is permissible for one or two ladies to be present in thegentlemen’s section during services. Perhaps, then, the Maharshal’s advisory was specifically directed to those one[or two] ladies. In any event, R. Teitelbaum’s own sources are certainly convincing in making the case that evenaccording to the visual barrier camp, it is permitted for the ladies to be capable of beholding the gentlemen’s section.R. Teitelbaum adds that a synagogue should, in fact, make this capacity available to the ladies.

16 However, in a telephone conversation with this writer on January 31, 2008, R. J. David Bleich cogently noted thatR. Akiva Eger’s remarks, in context, could be plausibly construed as enunciating a policy that was encouraged forthe Jewish residents of Posen rather than an actual halakhic prescription.

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The visual barrier camp correctly points to the practice among Jews since timeimmemorial to build a visual barrier in the synagogue. This sociological norm, it is cogentlyargued, constitutes a sacrosanct mesorah, and must have been the partition to which the ChatamSofer referred. Apparently reinforcing this thesis are four Rishonim who specifically identify avisual barrier as being the goal in the construction of the gallery in the Temple’s externalcourtyard: the Rambam in his Peirush Hamishnayot to Sukkah 51a, the Piskei Rid in hiscommentary on the gemara in Sukkah 51b, the Me’iri in his commentary upon the gemara inSukkah 51b, and the Mordekhai to Tractate Sanhedrin, no. 684. R. Yom Tov Lipman Heller, inhis Tosfot Yom Tov commentary to Sukkah 51a, also adopts this approach.

The other two camps, however, correctly observe that the Rambam (Hilkhot Lulav 8:12)conspicuously neglects to mention obstruction of vision as a necessary specification for thepartition constructed in the courtyard, insisting only that the purpose of that partition was toprevent a mixture. As for how avoidance of a mixture is to be defined, the kinaesthetic barriercamp understands the narrative recorded in Sukkah 51b to be declaring that a standardgeographic barrier is inadequate, since the Temple courtyard was always separated from thesurrounding Temple Mount by a formidable wall (which assuredly was more than sufficient toconstitute a geographic barrier), and yet the Sages realized that this was inadequate as a dividerfor purposes of achieving reverence in the Sanctuary, and that only a balcony would suffice. Thedefining feature of a balcony is that it serves as a kinaesthetic barrier. By contradistinction, thegeographic barrier camp conjectures that the Rambam must have envisaged the very sameeschewal of mixing that he defines in the context of ostracizing an individual afflicted withtzara’at, i.e., a ten-handbreadth barrier, since in both cases the Rambam employs the Hebrewterm irbuv.

Evidently, then, the Rambam may be equally understood as supporting the conclusion ofthe geographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp17.

17 A similar ambiguity exists in the Midrash compendium known as the Yalkut Shim’oni, in its exposition ofDeuteronomy 23:15. The Yalkut Shim’oni directly addresses the requirement for a partition during prayers,elucidating the said verse as follows: “[A gentleman] should not stand among ladies and pray, due to cognition ofthe ladies. Rather, he should sanctify his camp five cubits in every direction, and if it [viz. the presence of ladies]was inside the camp, he should sanctify it entirely, as it is says ‘The Eternal, your G-d, is walking in the midst ofyour camp.’ From this we learn that he should stand next to a tree, next to a stone or next to a wall, and pray, as itsays ‘And Hezekiah turned his face to the wall etc.’”

R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim II, no. 12, cites the Zayin Ra’anan commentary of R.Abraham Abele Gombiner [-the same author as the Magen Avraham commentary on Shulchan Arukh] upon theYalkut Shim’oni to the effect that a separation of “five cubits in every direction” actually means that the lady may bepresent within the fifth cubit. In other words, there must be four cubits of space between the gentlemen and ladies.[N.B. The Zayit Ra’anan’s exposition of “five cubits in every direction” appears methodologically confirmed byTosafot to Berakhot 31b, s.v. imkhah. I am grateful to Kalman Honig for bringing this parallel to my attention,quoting R. Baruch Simon quoting R. Hershel Schachter.]

Moreover, elucidates R. Henkin, when the Yalkut Shim’oni proceeds to prescribe that “if it [viz. thepresence of the ladies] was inside the camp, he should sanctify it entirely”, this means that when the gentlemen andladies are present indoors, a buffer of four cubits between them does not help anymore, and a real partition must beconstructed between them.

Thus, the Yalkut Shimo’ni informs us that a partition is not required when praying outdoors. Instead, a gapof four cubits in every direction between the gentlemen and the ladies suffices. But indoors (e.g. inside asynagogue), a partition is absolutely obligatory. R. Henkin argues that, if a four cubit horizontal space sufficesoutdoors, then what is of concern is a geographic barrier, and so indoors a ten handbreadth vertical partition shouldsuffice.

However, R. Elijah Meir Bloch, in a responsum addressed to R. Chanania Yom Tov Lipa Deitsch andpublished in the latter’s Taharat Yom Tov VI (p. 57), draws precisely the opposite conclusion from the same Yalkut

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Another source from the Rishonim of relevance to this question is the Mordekhai toTractate Shabbat, no. 311, who posits an exception to the rabbinic interdiction againstconstructing a partition on the Sabbath that serves as a mechitzah hamateret. The Mordekhairules that one may permissibly interpose a partition between ladies and gentlemen during alecture on the Sabbath, seeing as the temporary partition exists solely for purposes of privacy,rather than the creation of legally geographic separate domains. The Mordekhai’s decision iscodified as normative by R. David Halevi Segal in his Taz commentary to Orach Chaim 315:1,as well as by the Mishnah Berurah (loc. cit., se’if kattan no. 5) and the Arukh Hashulchan (loc.cit., se’if kattan no. 4).

The geographic camp cogently notes that the Mordekhai only discusses a partition duringa Sabbath lecture but conspicuously fails to address the more ubiquitous problem of the need fora partition during Sabbath prayers. This omission, it is argued, reflects the realization that apartition during prayers indeed classifies as a mechitzah hamateret, and could never bepermissibly constructed on the Sabbath. This, in turn, points to the conclusion that the partitionfor prayers is none other than a ten-handbreadth partition.

The other camps, however, [-represented in this regard by a comment attributed to R.Yechezkel Ambramsky by R. Eliezer Waldenberg in the latter’s Shu”t Tzitz Eliezer VII, no. 8-]draw precisely the opposite conclusion from the Mordekhai’s words. The Mordekhai iscommunicating that even a lecture, which does not require a quorum, should be graced byformidable partition which exceeds ten handbreadths in height, and which guarantees privacy.And how much more so do synagogue prayers, which require a quorum for recitation of mattersof sanctity [-and which accordingly trigger Leviticus 19:30], necessitate a formidable partitionfor the sake of guaranteeing privacy (-either a kinaesthetic barrier or a visual barrier, dependingon the school of thought). And whether it is a lecture or a prayer service, the partition may bepermissibly assembled on the Sabbath18.

Noteworthy in this regard is the analysis of R. Yitzchak Yosef, in his Yalkut Yosef, DineiKeri’at Sefer Torah Uveit Hakenesset, pp. 223-224, 340-341, who apparently vacillates betweenthese three options, without coming to any definitive conclusion, either. Evidently, eachapproach has merits that augur in its favor, and it is difficult to resolve this dispute. The onlydefinitive pronouncement offered by the Yalkut Yosef is to quote an oral decision from his father,R. Ovadiah Yosef, to the effect that it is preferable to follow the visual barrier camp.

Indeed, in a subsequently published responsum (Shu”t Yabi’a Omer X, Orach Chaim no.15) dealing with the expansion of a ladies’ section in a sanctuary, R. Ovadiah Yosef twice refers

Shim’oni. He points out that the Yalkut Shim’oni refers to “cognition of the ladies”. In other words, the function of asynagogue partition is to guarantee that each worshipper will be imbued with an elevated pure spirit of focus uponthe prayers. He argues that this obviously necessitates a visual barrier.

[And although no authority from the kinaesthetic barrier camp has actually addressed the Yalkut Shim’oni,presumably a similar explanation of the Yalkut Shim’oni could be offered on behalf of the kinaesthetic barrier camp.Namely, each worshipper will be enveloped with a pure spirit of focus upon the prayers when a partition whichprevents motion is established.]

Evidently, then, the Yalkut Shim’oni may be understood as equally supporting the conclusion of thegeographic barrier camp, the kinaesthetic barrier camp or the visual barrier camp.

18 In light of the Mordekhai from Tractate Sanhedrin (no. 684) referenced earlier in the text, it would appear to thiswriter that the Mordekhai in Tractate Shabbat should indeed be interpreted as a support to the visual barrier camp, soas not to generate a contradiction between the Mordekhai in Tractate Sanhedrin and the Mordekhai in TractateShabbat.

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to a synagogue partition as having been constructed “properly and according to the law”, yet hedeclines to define what this means in mathematical terms.

Somewhat similarly, R. Samuel Halevi Wosner, in his Shu”t Shevet Halevi I, no. 29, andR. Moshe Sternbuch, in his Shu”t Teshuvot Vihanhagot I, no. 162, express uncertainty as to theprecise requirements for a synagogue partition.

Thus, it would apparently emerge that the dimensions of a synagogue partition constitutea matter of unresolved sfekot. Perhaps the partition needs to be a geographic barrier, perhaps akinaesthetic barrier, and perhaps a visual barrier.

D. PRACTICAL MANAGEMENT OF UNRESOLVED SFEKOT

Based on the insoluble sfekot that have been depicted in sections A, B and C above, itwould appear appropriate to invoke the principle codified by the Rema in Shulchan ArukhChoshen Mishpat 25:2 to the effect that an unresolved dispute (where no one side possessesgreater evidence than the other side) on a biblical prohibition is adjudicated to the side ofstringency, whereas an unresolved dispute on a rabbinic prohibition is adjudicated to the side ofleniency. The Rema’s principle is based on a teaching presented by Rabbi Joshua ben Korchah inAvodah Zarah 7a and its subsequent codification in the Rambam, Hilkhot Mamrim 1:5. TheRema’s principle is later cited as normative by the Shakh at the end of Yoreh De’ah no. 242, aswell as in R. Jacob Reisher’s Torat Hashelamim commentary to Yoreh De’ah no. 110, where hecanonizes the governing principles of the sfek sfeka process.

However, the Ritva to Avodah Zarah 7a (s.v. hayu sheneihem) notes that the poskimthemselves who participate in the original debate are personally granted a special permission toact in accordance with their respective opinions. Accordingly, only outsiders to the dispute needto concern themselves with the sfekot generated by the dispute, whereas the poskim who areactual actors in the dispute are granted full sovereignty by the Oral Torah to act as their ownexpert analysis dictate. The Minchat Chinukh (mitzvah no. 78) concurs fully with the Ritva,declaring it as axiomatic and obvious that each decisor behave in accordance with his ownconscience, even if it results in a leniency in the context of a controversy over a biblicalprohibition. Each posek involved in the dispute is divinely authorized to rely exclusively on hisown position.

The Chazon Ish (Yoreh De’ah 150:1-5) extends the concept of rabbinic sovereignty a stepfurther. He argues that not only the posek himself, but all the disciples of that posek as well, areauthorized to follow his decision, even if that decision cannot be emulated by Jewry at large.

The Chazon Ish offers two proofs to his novel thesis. Firstly, the gemara in Eruvin 6bcites a beraita which empowers any person to choose between two clashing poskim (such as theschools of Shammai and Hillel), so long as one consistently adheres to the teachings of thatposek. Yet, notes the Chazon Ish, this curiously contradicts Avodah Zarah 7a. Evidently, onemust answer that Eruvin 6b refers to a situation where an individual is the disciple of both of theclashing authorities, whereas Avodah Zarah 7a refers to a situation where an individual is not adisciple of either of the clashing authorities.

Secondly, the gemara in Shabbat 130a describes a dispute between Rabbi Eliezer andRabbi Akiva as to whether the preparatory steps to circumcision override the Sabbath.Eventually, the Sages ruled that the halakhah follows Rabbi Akiva that the preparatory steps areforbidden. But until then, the citizens of Rabbi Eliezer’s town would routinely desecrate theSabbath in accordance with Rabbi Eliezer’s permissive view. Indeed, the gemara reports howthose same citizens were actually rewarded with divine blessing for their commitment to the

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mitzvah of circumcision. Obviously, argues the Chazon Ish, the citizens were aware that RabbiAkiva opposed Rabbi Eliezer, and yet they nonetheless opted to act leniently in the context of adispute over a biblical prohibition (i.e. the desecration of Sabbath), in apparent violation ofAvodah Zarah 7a. They must have been entitled to do so since they were all disciples of RabbiEliezer.

However, the Chazon Ish’s extension of rabbinic sovereignty is contradicted by R.Rephael Joseph Chazan in his Chikrei Lev, Yoreh De’ah no. 87 (s.v. gam). R. Chazan notes theapparent incompatibility between Eruvin 6b and Avodah Zarah 7a. He resolves the problem bysubmitting that Eruvin 6b applies only in a very particular set of circumstances – where onecamp possesses greater numbers and the other camp possesses greater genius19. Otherwise,everyone, including any disciple of the poskim participating in the dispute, is obligated to followthe rule outlined by R. Joshua ben Korchah in Avodah Zarah 7a.

As for how the Chikrei Lev might address the Chazon Ish’s proof from Shabbat 130a, itseems to this writer that one could cogently submit that the townspeople were simply unawarethat Rabbi Akiva opposed Rabbi Eliezer on this matter, or at least they were unaware that RabbiAkiva possessed sufficiently credible evidence against Rabbi Eliezer to generate a safekdi’oraita.

Without identifying either the Chazon Ish or the Chikrei Lev, R. Moshe Feinstein visitsthe topic of rabbinic sovereignty in his Dibberot Mosheh to Tractate Shabbat, no. 10. For thebulk of the recorded lecture, R. Feinstein presents (what is essentially) the Chazon Ish’s thesis,employing precisely the same two sources as did his predecessor. R. Feinstein philosophicallyrationalizes this chiddush by observing that there are already two well established exceptions tothe principle that safek di’oraita lichumra: a doubt regarding orlah fruit in the Diaspora, and adoubt regarding ritual defilement in the public domain. Both classes of doubts are adjudicated tothe side of leniency, even though both represent matters of Torah law. Thus, he continues, it isentirely reasonable that the Oral Torah should present yet a third exception, viz., that the studentsof a posek who is lenient in the context of an unresolved dispute over a biblical question maythemselves emulate the lenient ruling of their master. However, in the final section of the lecture,R. Feinstein reverses himself by conceding that it is possible that the sources he has marshaled infavor of this chiddush might not be compelling. Apparently, then, R. Feinstein’s conclusionwould seem to be that the matter of adjudicating between the Chikrei Lev and the Chazon Ishremains a safek20.

19 Although not mentioned by the Chikrei Lev, it is interesting in this regard to emphasize that neither the Rif, northe Rambam, nor the Rosh ever cite the beraita in Eruvin 6b as being normative, whereas they all codify R. Joshuaben Korchah’s position in Avodah Zarah 7a. Indeed, the gemara in Avodah Zarah 7a explicitly states that thehalakhah follows R. Joshua ben Korchah against his opponents on this matter. Thus, there is good reason to assignprimacy to the ruling of R. Joshua ben Korchah, as does the Chikrei Lev. [Indeed, perhaps one could even submitthat R. Joshua ben Korchah disputes the beraita in Eruvin 6b.]

20 R. Feinstein revisits the topic of rabbinic sovereignty in his Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 100(subsection no. 4). As far as this writer can discern, an absolute resolution to the question at hand does not arisefrom this latter source, because R. Feinstein does not find it necessary to clearly address which side of the disputebetween the Chazon Ish and the Chikrei Lev he accepts halakhah lima’aseh. Indeed, R. Feinstein refers hisinterlocutor to examine the previously published treatise in the Dibberot Mosheh, Tractate Shabbat, no. 10.

Indeed, the conclusion that R. Feinstein remains uncertain about this matter – and may possibly be stringent– is confirmed by his original introduction to the very first volume of Iggerot Mosheh. There, R. Feinstein explainsthat the citizens of Rabbi Eliezer’s town described by Shabbat 130a were rewarded because they were not aware ofthe fact that any sage contradicted Rabbi Eliezer. R. Feinstein’s remarks could be plausibly read to imply that, had

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Among subsequent writers, the Chazon Ish’s thesis is embraced by R. Jacob IsraelKanievski (the Steipler Ga’on)21 in his Kehillot Ya’akov to Tractate Berakhot, no. 1 and by R.Aaron Judah Halevi Grossman in his Shu”t Vidarashta Vichakarta IV, Yoreh De’ah no. 24, butis disputed by R. Ben-Zion Abba Shaul in his Shu”t Or Litzion I, Orach Chaim no. 7 (subsectionno. 2). R. Shaul asserts that Eruvin 6b is only directed to a halakhic authority who isindependently qualified to adjudicate between the clashing positions of previous poskim.Otherwise, a Jew must be stringent regarding any unresolved dispute in the context of a biblicalprohibition, as stated by R. Joshua ben Korchah, even when his personal posek is of the lenientpersuasion.

The Chazon Ish’s thesis is also apparently disputed by R. Avigdor Halevi Neventzal on p.237 of the latter’s Sichot Lisefer Bemidbar, where he adopts a position similar to that of theChikrei Lev and Or Litzion.

It further seems to this writer that the Chazon Ish’s thesis is implicitly disputed by R.Shlomo Zalman Auerbach in his Shu”t Minchat Shelomo I, no. 44 (subsection no. 2). R.Auerbach posits that when two poskim issue contradictory rulings regarding a rabbinicprohibition, and they present their polemical evidence to one another, then even when thestringent decisor is convinced that his opponent is absolutely in error, he must officially concede(when subsequently asked by an interlocutor for a practical halakhic decision) that the halakhahfollows the lenient opinion22. Evidently, R. Auerbach is declaring that R. Joshua ben Korchah’sprinciple reigns supreme. And so it would emerge from R. Auerbach’s words that, mutatismutandis, a Jew must be stringent regarding any unresolved dispute in the context of a biblicalprohibition, even when his personal posek is of the lenient persuasion.

Thus, the precise parameters of rabbinic sovereignty are fraught with controversy, and itwould therefore appear that, as a matter of practice, only the poskim themselves who participatein the debate enjoy the sovereignty to act leniently on an unresolved dispute regarding a biblicalinterdiction. All others, including the direct disciples of the poskim, must behave stringently23.

the townspeople been actually aware that Rabbi Akiva opposed Rabbi Eliezer, they would have been indeedobligated to be stringent regarding a safek di’oraita, even though they were all disciples of Rabbi Eliezer.

21 I am grateful to R. Henoch Singer for bringing this valuable source to my attention.As a support to the Chazon Ish, the Steipler Ga’on marshals the Sifrei to Deuteronomy 17:9 which declares

that “you have only a judge who lives in your days”. R. Kanievski interprets the Sifrei to mean that a student shouldalways follow his halakhic decisor, even when the decisor is lenient in the context of an unresolved biblical disputeamongst the poskim. However, it seems to this writer that the Sifrei, in context, only precludes worrying about theunannounced opinions of poskim of previous eras, but says nothing about the adjudication of unresolved rabbinicdisputes of the contemporary era, and so is entirely compatible with the contrary approach of the Chikrei Lev.

22 Although not directly affecting the dimension of rabbinic sovereignty presently under discussion, it is worthwhileto mention that one aspect of R. Auerbach’s ruling is cogently challenged by R. J. David Bleich on pp. xiv-xv of hisContemporary Halakhic Problems V. R. Bleich marshals evidence which indicates that a posek is never forced toissue a lenient ruling with which his own conscience disagrees. Thus, for R. Bleich, the stringent decisor in anunresolved dispute amongst the poskim regarding a rabbinic prohibition need not (and, in fact, should not) answerpermissively. Rather, the decisor should excuse himself from adjudicating any practical cases.

23 The reason behind this stringent conclusion is that safek di’oraita lichumra. Thus, the dispute between the ChazonIsh et al. vs. the Chikrei Lev et al. (which R. Feinstein himself was apparently unable to resolve) must be adjudicatedto the side of stringency. And even though the dispute between the Chazon Ish et al. and the Chikrei Lev et al.actually focuses upon a safek issur di’oraita rather than upon a vadai issur di’oraita, it nevertheless remains the casethat the unresolved dispute must be adjudicated to the side of stringency, due to the directive of the Shakh to Yoreh

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Moreover, in the particular context of the debate over the synagogue partition, there isespecially strong reason to consider the matter as a safek – such that the principle safek di’oraitalichumra becomes germane – since, as described in section B above, the Yalkut Yosef, Yabi’aOmer, Teshuvot Vihanhagot and Shevet Halevi all express uncertainty as to the practicalhalakhah.

Nevertheless, although a single doubt regarding a biblical prohibition must be adjudicatedto the side of stringency, a compounded doubt (sfek sfeka) can be effective in generating aleniency. Accordingly, one might attempt to justify a synagogue’s reliance upon a ten-handbreadth partition with the following sfek sfeka likula:

(i) Safek likula #1: Maybe the halakhah follows the geographic barrier camp(described in section B above), such that a ten-handbreadth partition suffices.

(ii) Safek likula #2: Even if it is not certain whether the halakhah follows thegeographic barrier camp, maybe the halakhah follows the position (outlined insection A above) that a partition in a synagogue constitutes a mitzvah dirabbanan,such that one could invoke safek dirabbanan likula in order to rely on thegeographic barrier camp.

However, in practice, this sfek sfek likula proves unsuccessful, due to the directive of theR. Shabtai Cohen in his Shakh commentary to Yoreh De’ah no. 110 (klalei sfek sfeka no. 19) thatone cannot invoke safek dirabbanan likula on a second question involving what originally stemsfrom a first safek biblical problem.

A different sfek sfeka likula that might be employed in order to justify a synagogue’sreliance upon a ten-handbreadth high partition would be as follows:

(iii) Safek likula #1: Maybe the halakhah follows the argument (outlined in section Aabove) that the construction of a Temple partition constituted a mitzvahdirabbanan, in which case the requirement for a synagogue partition would alsobe dirabbanan, which in turn would authorize invocation of safek dirabbananlikula to rely on the geographic barrier camp.

(iv) Safek likula #2: Maybe the halakhah follows the argument (outlined in section Aabove) that the sanctity of a synagogue is only rabbinic in nature, in which casethe requirement for a synagogue partition would also be dirabbanan, which inturn would authorize invocation of safek dirabbanan likula to rely on thegeographic barrier camp.

Nevertheless, it seems to this writer that, in practice, such a sfek sfeka likula also provesproblematic, due to the eleventh principle of the Shakh’s klalei sfek sfeka, which dictates thatwhen both doubts arise from the same source (mishem echad), they are only reckoned as a singlesafek likula. It would appear that considerations (iii) and (iv) arise on the basis of predicates thatare sufficiently similar to be regarded as mishem echad.

By contradistinction, if a synagogue employs a kinaesthetic barrier as its partition, then itdoes indeed enjoy a genuine sfek sfek likula on which to rely, as follows:

De’ah no. 110 (klalei sfek sfeka no. 19) that one cannot invoke safek dirabbanan likula on a second questioninvolving what originally stems from a first safek biblical problem.

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(v) Safek likula #1: Maybe the halakhah follows the geographic barrier camp, suchthat a ten-handbreadth partition suffices.

(vi) Safek likula #2: Even if the halakhah does not follow the geographic barriercamp, maybe the halakhah follows the kinaesthetic barrier camp.

Admittedly, however, the synthesis of a novel sfek sfeka likula nowadays is itselfcontroversial. The Shakh's final provision among his thirty-six rules governing the application ofa sfek sfeka likula (Yoreh De'ah no. 110) dictates that no novel sfek sfeka likula be constructednowadays. R. Jacob of Lisa, in his Chavot Da’at (ad. loc.), affirms this position. Nevertheless,several authorities cited by R. Feivel Cohen in the latter’s Badei Hashulchan (Yoreh De’ah no.110, se’if kattan no. 277) disagree and do permit the synthesis of a novel sfek sfeka nowadays. R.Cohen himself champions the latter school of thought, as does R. Ovadiah Yosef in his Shu”tYabi'a Omer VI, Yoreh De’ah no. 24. A resolution of this dispute, which bears wide rangingimplications throughout Torah law, is beyond the competence of this writer.

Interestingly, one point that is potentially conclusive to authorizing the particular sfeksfeka at hand is that the Badei Hashulchan (ibid., se’if kattan no. 278) cites the Chavot Da’at(ibid.) to the effect that even the Shakh – who refuses to synthesize any novel sfek sfeka – willallow the synthesis of a sfek sfeka where there is a question whether there is any potentialprohibition in the fact pattern altogether. For instance, if there a doubt whether an animal of preyeven entered a flock of sheep, and a further doubt whether the animal of prey clawed one of thesheep, the Shakh will countenance a sfek sfeka to permit assuming that each of the sheep arekosher, since it is not even clear that any potential prohibition has devolved upon any of thesheep. Likewise, the argument might be rendered that since, as described in section A above,there is some question whether the obligation of a synagogue partition actually constitutes amitzvah di’oraita, then although the evidence that it might be a mitzvah di’oraita is sufficientlypowerful that the subsequent dispute among the poskim regarding the dimensions of the partition(section C) must be adjudicated to the side of stringency as per the Shakh’s nineteenth provisiongoverning the application of a sfek sfeka likula, nevertheless the initial question that wasgenerated whether in fact a synagogue partition constitutes a mitzvah di’oraita would besufficient to trigger the Chavot Da’at’s leniency to synthesize a novel sfek sfeka likula. Still, thiswriter is unable to arrive at a definitive conclusion on this matter.

Accordingly, what can be said is that it appears reasonable to assume that a congregationwhich is either willing to rely on those authorities who countenance the construction of a novelsfek sfeka likulai in general, and perhaps even a congregation which is stringent like the Shakhnot to allow the novel synthesis of a sfek sfeka likula but which also relies on the Chavot Da’at’sinterpretation of the Shakh, would be able to rely on a kinaesthetic barrier in the synagogue.Otherwise, a congregation must employ a visual barrier.

Regarding the unresolved dispute in section B above [vis-à-vis the required absolutenessof the demographic separation that is orchestrated by the partition], the principle that safekdi’oratia lichumra dictates that, in the absence of any partition whatsoever, one cannot alloweven so much as one lady to stand among the gentlemen, or even so much as one gentleman tostand among the ladies. However, where there is a ten-handbreadth high partition [which, thissection has already concluded is normally inadequate, due to a safek issur di’oraita], one maycountenance the presence of one or two ladies being present while there is a quorum ofgentlemen, or conversely one or two gentlemen being present while there is a congregation ofladies, thanks to the following sfek sfeka:

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(vii) Safek likula #1: Perhaps the halakhah follows the lenient school of thoughtoutlined above in section B (viz. Tosafot, the Iggerot Mosheh and the BeneiVanim) that it is permissible for one or two ladies to be present among gentlemenand for one or two gentlemen to be present among ladies in the Sanctuary.

(viii) Safek likula #2: Perhaps the halakhah follows the geographic barrier camp, suchthat a ten-handbreadth partition suffices.

Of course, this latest sfek sfeka will only be acceptable for those congregations that arewilling to rely on the synthesis of a novel sfek sfeka, contrary to the aforementioned Shakh. Andperhaps it will even be acceptable to congregations that are stringent like the Shakh, providedthey are willing to rely on the Chavot Da’at’s interpretation of the Shakh.

E. CLOTH PARTITIONS AS KINAESTHETIC AND VISUAL BARRIERS

As concluded in the above section D, a synagogue cannot rely exclusively on ageographic barrier, due to a safek issur di’oraita, but must rather possess at least a kinaestheticbarrier, in order to benefit from a sfek sfeka likula. Moreover, a congregation that follows theShakh and accordingly refuses to synthesize a novel sfek sfeka likula would be required topossess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribesto the Chavot Da’at’s interpretation of the Shakh].

One point that requires clarification is the status of partitions that are constructed fromcloth or otherwise flexible materials (e.g. canvas). It seems obvious to this writer that these areunfit for use in the context of a kinaesthetic barrier, for one can easily push one’s hand againstthe cloth wall, turning the cloth into a virtual glove through which one can communicate with anindividual on the other side.

At the same time, a completely opaque cloth would indeed be suitable as a visual barrier,because it truly serves the function of rendering the other side invisible. Even so, it further seemsto this writer that an argument might be advanced that the synagogue partition must not oscillate,simply by virtue of the very teleological definition of a visual barrier. Namely, a partition whichsways is not a proper visual barrier, because there is no opaqueness to the edges of the barrierwhen it sways. The only manner of swaying that can be countenanced is a curtain partition that issecurely anchored at all of its border edges on all sides, such that the edges always remain totallyclosed, making them non-traversable by any hand and completely opaque. Under suchcircumstances, the only “swaying” that occurs involves the excess curtain material in the middleof the partition moving back and forth.

[The question of the suitability of cloth partitions as a geographic barrier is subsumedwithin the very next section of this article.]

F. RAMIFICATIONS OF THE GEOGRAPHIC BARRIER CAMP

As concluded in the above section D, a synagogue cannot rely exclusively on thegeographic barrier camp’s position, due to the problem of a safek issur di’oraita. At the sametime, one must also recognize the possibility that the geographic barrier camp is in fact correct,and thus take into account the two stringencies that are unique to the geographic barrier camp.Namely, R. Yehudah Herzl Henkin, in his Shu”t Benei Vanim I, no. 1, cogently notes thatacceptance of his ten-handbreadth partition would lead to the following conclusions. Firstly, the

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partition would have to possess the structural integrity necessary to comply with the dictum “anypartition which cannot withstand a normally anticipated terrestrial wind is not a partition” (as perSukkah 24b). Secondly, the partition would have to be regarded as a mechitzah hamateret, and socould neither be assembled nor disassembled on the Sabbath or festivals, owing to the rabbinicinterdiction against assembling or disassembling a mechitzah hamateret on those days, as perShulchan Arukh Orach Chaim 315:1.

The first caveat affects the suitability of cloth or canvass walls as a synagogue partition,and, to that effect, there are three positions among the poskim as to how much swaying in thewind will disqualify a mechitzah hamateret, as follows:

(i) Even the slightest amount of rustling in the wind will disqualify the partition. Thisposition is espoused by R. Jacob of Karlin in his Kehillat Ya’akov Mikarlin on Sukkah24b (and again in his Shu”t Mishkenot Ya’akov, Orach Chaim no. 123), R. OvadiahYosef in his Shu”t Yechaveh Da’at III, no. 46 (and again in his Shu”t Yabi’a Omer IX,Orach Chaim no. 59, and yet a third time in his Chazon Ovadiah – Sukkot, pp. 1-6), R.Menasheh Klein in his Shu”t Mishneh Halakhot, Mahadura Tinyana no. 512, R. ElijahRagoler in his Shu”t Yad Eliyahu no. 24, and R. Aryeh Pomerantzik in his EmekBerakhah pp. 90-91. [According to the books Halikhot Shelomoh (hilkhot sukkah p. 97)and Shalmei Mo’ed (p. 93), this is also the position of R. Shlomo Zalman Auerbach (asfound in the manuscript of his personal unpublished novellae upon Sukkah 24b).However, it should be noted that those two books were not published by R. Auerbachhimself, and indeed the latter book quotes R. Avigdor Halevi Neventzal as actuallydisagreeing and reporting that R. Auerbach espoused the view of the Chazon Ish(presented as view number iii below).]

(ii) Slight rustling is acceptable, but anything more will disqualify the partition (even ifthe motion is less than three handbreadths). This view is not quantitatively clear in termsof a precise threshold, but is nevertheless espoused by R. Moshe Sternbuch in hisMo’adim Uzemanim I, no. 84 and R. Isaac Liebes in his Shu”t Beit Avi IV, no. 73. Itseems to this student that, although his words are somewhat cryptically phrased, this isalso the position of R. Joseph Chaim Sonnenfeld24 in his Shu”t Salmat Chaim no. 372.

(iii) Any motion less than three handbreadths is inconsequential due to the principle oflavud. This position is espoused by the Chazon Ish (Orach Chaim 77:6) as well as by R.Abraham David Horowitz in his Shu”t Kinyan Torah IV, no. 70. There is strong supportfor this position from the language of R. Moshe of Trani in his Kiryat Sefer commentaryupon Rambam, Hilkhot Sukkah 4:5. [The same stance is adopted by R. Moshe Feinsteinin his Shu”t Iggerot Mosheh, Orach Chaim V, no. 40 for all matters other than a sukkah,where he adopts position (ii) instead25.]

24 Cf., however, R. Ovadiah Yosef in his Chazon Ovadiah (loc. cit.), where R. Sonnenfeld is understood to besupporting position (i).

25 Incidentally, it should be noted that this responsum was not published by R. Feinstein himself. The volume knownas Shu”t Iggerot Mosheh, Orach Chaim V & Yoreh De’ah IV (which contains this and many other originalresponsa) was actually published by R. Feinstein’s grandchildren, who write in their introduction (p. 2): “but in thisvolume [of Iggerot Mosheh] we have become orphans and we do not have a father to show us our way… and eventhough we have relied on the merit of our master, our grandfather [the Iggerot Mosheh], zatzal, not to err in anymatter of Halakhah, still we cannot say that we have not erred in any place, and we will thank from the depths of the

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Now, one may inquire what will be the halakhah when a synagogue employs clothpartitions that would sway in the wind if a gust of wind would theoretically blow through thesanctuary, but when in fact no wind actually ever blows through the sanctuary, thanks to thewalls of the synagogue that serve as artificial wind breakers. R. Yosef Cohen in his HarereiKodesh commentary upon his grandfather R. Tzevi Pesach Frank’s Mikra’ei Kodesh, Sukkot I,no. 2, posits that the dispute between positions (i) and (iii) will result precisely in this very nafkaminah. Namely, if a flimsy mechitzah which sways in the wind is constructed indoors or inside awalled courtyard (where the wind is prevented from blowing), will that flimsy partition whichcannot withstand the wind be kosher? Says the Harerei Kodesh (footnote no. 3), according toposition (i) the answer is negative, whereas according to position (iii) the answer is affirmative.According to position (i) an artificially constructed wind-buffering barricade which surrounds aflimsy mechitzah will not help because the mechitzah must be intrinsically strong in principle.According to position (iii), by contradistinction, an artificially constructed wind-bufferingbarricade which surrounds the mechitzah will indeed make the flimsy mechitzah kosher becausethe mechitzah need only stay (relatively) still in actuality. [The Harerei Kodesh does not addressposition (ii).] However, the Harerei Kodesh is evidently disputed by R. Ovadiah Yosef, whoposits that there is no basis to say that walls surrounding a flimsy mechitzah assist themechitzah26. Moreover, at best, the analysis of the Harerei Kodesh creates only a safek likula[since, even according to him, one must be cognizant of the fact that perhaps the halakhahfollows position (i) rather than (iii)]. Since a mechitzah in a synagogue constitutes a safekmitzvah di’oraita (as per the analysis presented in section A above), seemingly one must bestringent due to considerations of safek di’oraita lichumra.

Thus, in sum total, a synagogue which takes into account the safek likula possibility ofthe correctness of the geographic barrier camp must be careful that its partition not be capable ofswaying in the wind, even though the walls of the sanctuary operate as artificial wind breakers. Ifthe partitions would sway three handbreadths in the event that a wind would hypothetically blowthrough the synagogue, it should be assumed that all poskim would disqualify the mechitzah. [Ifthe partitions would sway appreciably in the wind but less than three handbreadths, it should be

heart the readers who will call our attention to the mistakes that they will find, so that we will be able to fixupcoming editions.” See also the introduction of the previous volume of the Iggerot Mosheh (Even Ha’ezer IV &Choshen Mishpat II), which was indeed published by R. Moshe Feinstein himself. There, R. Feinstein writes: “As isknown to everyone, the full responsibility for the publication of this book is placed upon me from its beginning to itsend, for they [my assistant publishers] send to me all the manuscripts that I should see and correct them before theyenter publication.” Thus, there appears to be an epistemological difference between the former and the lattervolumes.

26 R. Yosef makes this point in a footnote on p. 138 of Yechaveh Da’at III. The focus of the dispute between theHarerei Kodesh and the Yechaveh Da’at centers upon a responsum of R. Jacob Chagiz in the latter’s Shu”t HalakhotKetanot II, no. 50. The Harerei Kodesh understands that the Halakhot Ketanot validates a flimsy mechitzah which isprotected by surrounding wind-buffering courtyard walls. The Harerei Kodesh postulates that this means theHalakhot Ketanot is not concerned with the intrinsic structural integrity of the mechitzah, but rather with the factthat the mechitzah not actually move three handbreadths (like the Chazon Ish). By contradistinction, the YechavehDa’at believes that the Halakhot Ketanot only originally entertained a havah amina that wind-buffering courtyardwalls can protect a mechitzah, but later retracted based on the concept enunciated in Sukkah 2a to the effect that“take away the shade of [the lofty mountains of] Ashteroth Karnayim and there will be the shade of the sukkah”.Thus, according to the Yechaveh Da’at, no authority (-presumably not even the Chazon Ish-) renders a flimsymechitzah as being kosher based on surrounding wind-buffering courtyard walls. See also p. 91 of R. Pomerantzik’sEmek Berakhah, where he adjudicates such a flimsy mechitzah to be disqualified.

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assumed that many poskim would disqualify the mechitzah. And if the partitions would swayslightly in the wind, it should be assumed that some poskim would disqualify the mechitzah.]

Now, it has already been explained in section E above that a cloth or canvas partition isdisqualified as a kinaethetic barrier, but that a cloth or canvas partition is suitable as a visualbarrier, provided that the edges are well anchored. Hence, the dispute among the poskim that hasbeen described in this section (F), viz., how much swaying disqualifies a geographic partition,becomes germane if a congregation chooses to employ a canvas or cloth barrier as a visualbarrier. Such a choice of a synagogue partition would be acceptable based upon a sfek sfekalikula:

(i) Safek likula #1: Perhaps a geographic barrier suffices for a synagogue partition, inwhich case a cloth or canvas partition is acceptable, so long as it is capable of withstanding ananticipated terrestrial wind.

(ii) Safek likula #2: Perhaps a visual barrier suffices for a synagogue partition, in whichcase even a swaying partition is acceptable.

Accordingly, a synagogue which relies on a cloth or canvas wall as a visual barrier(which, as has just been demonstrated, could be countenanced based on a sfek sfeka likula),would have to be careful that the partition not sway in the wind (-certainly not threehandbreadths, and better yet not even less than three handbreadths, and best of all not even theslightest bit). If the partition would sway three handbreadths in the wind, the mechitzah isdisqualified.

Again, as already mentioned in section E above, it seems evident to this writer that toserve as a genuine visual barrier, the cloth or canvass would have to be well anchored at all itsedges.

However, seeing as this arrangement is predicated upon a sfek sfeka likula, a synagoguewhich subscribes to the view of the Shakh referenced earlier that one should not synthesize anovel sfek sfeka likula nowadays would be unable to rely upon it. [Perhaps, though, a leniencycan be allowed even for a congregation that is stringent like the Shakh, provided thecongregation subscribes to the Chavot Da’at’s interpretation of the Shakh.] Rather, thesynagogue would require a visual barrier synthesized from a material that is neither cloth norcanvas.

Regarding the second caveat (viz. the prohibition of assembling or disassembling amechitzah hamateret on the Sabbath and festivals), note should be taken of the remarks of R.Dovid Ribiat in his The 39 Melochos (Feldheim: New York, 1999), and R. Simchah BunimCohen in his The Shabbos Home II (Artscroll: New York, 2003). They both posit27 that becausethe mechitzah for the laws of synagogue is not a ten handbreadth structure but is rather a moreformidable structure [i.e. eighteen handbreadths for the kinaesthetic barrier camp, and taller thanthe tallest person present for the visual barrier camp], the rabbinic prohibition against assemblingor disassembling a temporary structure does not apply. The rabbinic prohibition only applies tostructures which have significance when they are ten handbreadths tall (e.g. a sukkah wall), i.e. amechitzah hamateret.

Evidently, R. Ribiat and R. Cohen only entertained the possibility of a synagogue thatsubscribes to either the kinaesthetic barrier or the visual barrier camps. They declined to considerthe option that a synagogue might subscribe to a geographic barrier camp. Nevertheless, since, as 27 In R. Ribiat’s book, it is footnote no. 178 to the chapter on Boneh. In R. Cohen’s book, it is footnote no. 23 tochapter thirty-one.

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established in section D above, no synagogue today may rely exclusively on the geographicbarrier camp (due to the problem of a safek issur di’oraita) and instead every synagogue mustpossess at least a kinaesthetic barrier, it emerges that every synagogue will be permitted toassemble and disassemble its partition on the Sabbath. This is because assembling ordisassembling a mechitzah hamateret on the Sabbath represents the violation of a rabbinicinterdiction. As such, one may invoke the principle of safek dirabbanan likula, by recognizingthe following single safek to be lenient: Perhaps the halakhah does not follow the geographicbarrier camp, such that the synagogue partition is not a conventional mechitzah hamateret,whereupon it should become permissible to assemble or disassemble the partition on theSabbath.

Nevertheless, even though according to the letter of the law one may rely on safekdirabbanan likula, the Mishnah Berurah to Orach Chaim no. 489 (se’if kattan no. 14) points outthat the Shulchan Arukh calls upon Jews who are conscientious in championing mitzvot(“hamidakdikim”) not to place themselves in a position of doubt wherein safek dirabbanan likulabecomes germane. Thus, a congregation composed of midakdikim would be well advised,wherever possible, to avoid assembling or disassembling the synagogue partition on the Sabbath.

On the other hand, R. Yosef Ben-Arza, in his Yosef Da’at to Tractate Avodah Zarah 7a(p. 32), marshals sources which propose that there is no preference whatsoever to be stringent onan unresolved controversy regarding a rabbinic prohibition, as distinct from a conventionaluncertainty regarding a rabbinic prohibition [where midakdikim are indeed advised to bestringent]. The distinction, it is argued, lies in the fact that the Sages issued their ordinances withthe express understanding that the ordinances are to be rendered completely inoperative in caseof dispute between the poskim. If this approach is accepted, then it evidently emerges that evenmidakdikim could assemble or disassemble the synagogue partition on the Sabbath in goodconscience.

G. GAPS AT THE FOOT OF THE BARRIER

As concluded in the above section D, a synagogue cannot rely exclusively on ageographic barrier, due to a safek issur di’oraita, but must rather possess at least a kinaestheticbarrier, in order to benefit from a sfek sfeka likula. Moreover, a congregation that follows theShakh and accordingly refuses to synthesize a novel sfek sfeka likula would be required topossess a visual barrier as its synagogue partition [unless, perhaps, the congregation subscribesto the Chavot Da’at’s interpretation of the Shakh]. However, one further point which requiresclarification is whether a kinaesthetic or visual barrier can accommodate a gap at the bottom,within three handbreadths of the ground. This frequently arises as a question in synagogues withpartitions stationed on wheeled platforms.

Obviously, a geographic barrier (such as that which is employed as a sukkah wall) maypermissibly possess a gap within three handbreadths of the ground, due to the principle of lavud.However, lavud has already been discovered to be inapplicable in the context of the kinaestheticbarrier position, since R. Feinstein disallows any gap larger than three inches, as explained insection B above. Theoretically, then, one could argue that a three-inch gap at the bottom of akinaesthetic barrier is unacceptable. On the other hand, one might counter-argue that it would besocially awkward for a person to extend his hands or carry on a conversation across the partitionwithin the bottom three handbreadths of the partition. [In order to accomplish those feats, theindividual would have to be sitting or lying on the ground, which is a bizarre predicament in the

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synagogue on all days other than the fast of Tish’ah Bi’av28 as well as the prostrations during theHigh Holidays.] But as a countervailing argument in favor of stringency, it should be pointed outthat although R. Feinstein in Iggerot Mosheh, Orach Chaim I, no. 39, demands a partition thatwill prevent contact of hands of worshippers positioned on either side of the partition, in OrachChaim III, no. 23 he prescribes a partition that will prevent contact of “their hands and theirbodies”. Now, the feet of worshippers in the synagogue are assuredly halakhically considered tobe part of their bodies, and so the capacity to move one’s foot across the partition may also becontraindicated by R. Feinstein’s remarks, in which case even a gap within the threehandbreadths of the ground would be unacceptable. And so – what in fact is the halakhah?

In the absence of any direct evidence, it seems to this writer that the matter is a safekanalogous to the doubt expressed by the Mishnah Berurah in Orach Chaim no. 336, se’if kattanno. 36. The mishnah in Eruvin 99b teaches that even though the Sages prohibited resting on anypart of a tree on the Sabbath [lest one come to detach foliage and thereby desecrate the Sabbaththrough the labor of harvesting], it is permitted to rest on arboreal roots that are within a merethree handbreadths of the ground, since they are considered to be assimilated into the ground.Regarding this matter, the Mishnah Berurah (citing the Pri Megadim) investigates withoutresolution the situation of a small bush bearing fruits or vegetables that is situated within threehandbreadths of the ground: Can one rest on the bush on the plea that it is simply considered partof the ground (just like roots positioned within three handbreadths of the ground), or must oneavoid doing so, lest one come to pick the fruits or vegetables? For the Mishnah Berurah, a doubtpersists, and so the analogous safek must be assumed to be true for a kinaesthetic barrierharboring a gap within three handbreadths of the ground.

Accordingly, there is a sfek sfeka lichumra to disqualify a synagogue partition that isintended to serve as a kinaesthetic barrier but which also possesses a gap greater than threeinches within three handbreadths of the ground, as follows:

(i) Safek lichumra #1: Perhaps the halakhah follows the visual barrier camp, suchthat a kinaesthetic barrier is inadequate.

(ii) Safek lichumra #2: Even if the halakhah follows the kinaesthetic barrier camp,perhaps a kinaesthetic barrier – by definition – cannot accommodate a gap greaterthan three inches even at the bottom.

Thus, a synagogue that relies on a kinaesthetic barrier as its partition must ensure thatthere is no gap larger than three inches, even at the foot of the barrier.

Regarding the case of the visual barrier, it is equally unclear whether a visual barrier canpossess a gap within three handbreadths of the ground. On the one hand, one could argue thatsince it is theoretically possible to see through such a gap, the barrier is disqualified. On the otherhand, one could counter-argue that one can only see with difficulty through such an aperture, andso the barrier still functions as a proper visual barrier.

It seems to this writer that a precedent may be marshaled from Shulchan Arukh OrachChaim 671:6, which rules that Chanukah candles – in order to fulfill the purpose of miraclepublicity (pirsumei nissa)– should be placed three or more handbreadths above the ground. TheMishnah Berurah (se’if kattan no. 26) explains that candles within thee handbreadths of theground are considered part of the ground and will not be seen by spectators. However, the

28 And, of course, the fast of Tish’ah Bi’av is prophetically guaranteed to be transformed into a holiday, as per thegemara in Rosh Hashanah 18b, whereupon it is assuredly the case that Jews will no longer sit on the floor onTish’ah Bi’av.

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Mishnah Berurah adds (based on the Pri Chadash) that post facto the candles are kosher.Evidently, the Mishnah Berurah recognizes that there is a certain degree of visibility even in therange of within three handbreadths of the ground, albeit with difficulty. Thus, one may inquirewhether such difficult visibility is of significance in the context of a synagogue partition.Apparently, the matter remains an unsolved mystery.

Here, however, there is no sfek sfeka lichumra, but rather a sfek sfeka likula to justify avisual barrier that possesses a gap within three handbreadths of the ground, as follows:

(iii) Safek likula #1: Perhaps the halakhah follows the geographic barrier camp, suchthat a gap within three handbreadths of the ground is acceptable.

(iv) Safek likula #2: Even if the halakhah follows the kinaesthetic or visual barriercamps, perhaps a gap at the foot of the kinaesthetic or visual barrier is acceptable.

Thus, a synagogue which utilizes a visual barrier as its partition may indeed allow a gapwithin three handbreadths of the ground. Of course, a congregation that is strict in accordancewith the position of the Shakh and which therefore refuses to synthesize a novel sfek sfeka likulamust ensure that the visual barrier not possess any gap, even within three handbreadths of theground [unless, perhaps, the congregation subscribes to the Chavot Da’at’s interpretation of theShakh.]

Admittedly, however, there is one case of a visual barrier that may not possess a gapwithin three handbreadths of the ground. Namely, if the visual barrier is synthesized from clothor canvass, then it perforce already relies upon a sfek sfeka likula, as per section F above. Hence,a gap within three handbreadths of the ground would generate a sfek sfeka lichumra, as follows:

(v) Safek lichumra #1: Perhaps the halakhah follows the kinaesthetic barrier camp,such that a cloth or canvas partition is disqualified, as per section E above.

(vi) Safek lichumra #2: Perhaps a gap at the foot of a visual barrier is unacceptable, asper the uncertainty described in this section (G).

Thus, a congregation which utilizes a cloth or canvass wall as its synagogue partition –and therefore makes it into a visual barrier in order to benefit from a sfek sfeka likula (as persection F above) – must be careful that the wall extend completely to the ground.

H. LATTICE NETWORKS IN THE PARTITION

As concluded in section D above, a synagogue cannot rely exclusively on a geographicbarrier, due to a safek issur di’oraita, but must rather possess at least a kinaesthetic barrier, inorder to benefit from a sfek sfeka likula. Additionally, as established in section C and furtherelaborated in section E above, the kinaesthetic barrier may permissibly contain gaps of up tothree inches. Accordingly, one might propose that a lattice network could be employed as asynagogue partition, so long as the individual spaces do not exceed three by three inches.[Indeed, it may very well be that this is the arrangement envisaged by Shu”t Iggerot Mosheh,Orach Chaim IV, no. 29.] For that matter, one could even employ a chain fence – which consistsmostly of empty space – since the spaces (on an individual scale) do not exceed three by threeinches.

However, upon careful analysis, this does not prove to be the case, thanks to the conceptof lavud lichumra that is codified by the Mishnah Berurah in Orach Chaim no. 626, se’if kattan

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no. 17. Lavud lichumra, first enunciated by the Bach in his commentary to Tur, Orach Chaim no.626, means that prohibiting architectural quantities can combine if they are within threehandbreadths of one another. For instance, closely positioned thin segments of disqualifiedskhakh (such as growing arboreal foliage, laundry wires or electricity cables) that overhang asukkah may cause the airspace in between them to be regarded as virtually filled withdisqualified skhakh, with all the consequences that this bears in the realm of hilkhot sukkah.

Lavud lichumra, then, should also apply to a lattice network in the context of asynagogue partition. In the context of the synagogue partition, it is precisely the empty spacesthat constitute the prohibiting architectural quantities. Even though each empty space may beinconsequential on its own – thanks to its diminutive size (in being three by three inches or less)– the fact that the empty spaces are within three handbreadths of one another should combinethem into a virtually agglomerated massive space, through the mechanism of lavud lichumra.

Admittedly, R. Simchah Rabinowitz, in his Piskei Teshuvot to Orach Chaim no. 626,subsection no. 8, catalogues many poskim who hold that lavud lichumra only applies to wires (orother disqualifying material) overhanging a sukkah when – even without the intervening spacebetween the wires – there is so much material in the wires that were the wires to be juxtaposed,they would enjoy a width of four handbreadths or more. [The significance of the measure of fourhandbreadths is that this is the minimum quantity of disqualified skhakh necessary to disqualifyan entire sukkah.] Accordingly, translating this caveat to the realm of the synagogue partitionwould result in the conclusion that empty spaces [which are within three handbreadths of oneanother] will only combine to one another if there is so much empty space in total (if the spaceswere to be juxtaposed) so as to measure a quantity of empty space that exceeds three by threeinches. As one may readily discern through empirical observation, this provision effectivelyprecludes the possibility of ever relying on a lattice network as a synagogue partition (mostespecially in the case of a chain fence).

Thus, there is a sfek sfeka lichumra to prohibit a synagogue from relying on a latticenetwork as its kinaesthetic barrier, even though each space in the lattice network individuallymeasures three by three inches or less:

(i) Safek lichumra #1: Perhaps there is lavud lichumra, such that empty spaces whichare within three handbreadths of one another and which in total – if they werejuxtaposed – measure a quantity of empty space that exceeds three by three inchescombine to disqualify the synagogue partition, even though each individual space(on a local scale) only measures three by three inches or less.

(ii) Safek lichumra #2: Perhaps a kinaesthetic barrier does not help altogether, sinceperhaps the halakhah follows the visual barrier camp (-which is a genuine safek,as per sections C and D above).

At the same time, consideration of both sections G and H yields the further conclusionthat a synagogue which relies on a kinaesthetic barrier as its partition could permit a latticepartition within the bottom three handbreadths of the wall – provided that each space within thelattice network measures three by three inches or less – thanks to the following sfek sfeka likula:

(i) Safek likula #1: Perhaps a kinaesthetic barrier does not need to be sealed withinthe bottom three handbreadths of the partition [as per the doubt expressed insection G].

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(ii) Safek likula #2: Perhaps the halakhah does not follow the Bach, such that we donot say lavud lichumra [as per the doubt expressed in this section (H)].

I. CONSEQUENCES ON KIDDUSHIN

One potential source for opposition to the insistence upon the formidable synagoguepartition that is being advocated by this essay may be the consequences that such an insistencewould bear upon unmarried Jews who frequent the synagogue. After all, those unmarried Jewsmay be seeking to eventually fulfill the mitzvah of kiddushin, and were the synagogue partitionless pronounced in nature, it might be easier for them to identify potential prospects. Thisconcern becomes germane in light of the apparent recognition of the legitimacy of Jews findingtheir own marriage prospects (without requirement for referral by a third party) that is reflectedby the mishnah in Ta’anit 26b29.

Nevertheless, notwithstanding the paramount concerns a synagogue ought to manifest forthe welfare of its singles population, a synagogue is simply forbidden to compromise on itsobservance of Leviticus 19:30 even for so noble a purpose as helping the singles, because “thereis no wisdom, no understanding and no counsel against the Eternal”, as per Proverbs 21:30. Andthus the requirement for a formidable synagogue partition remains true.

At the same time, this writer would suggest several highly innovative ways in which theJewish community might attempt to help singles achieve observance of the mitzvah of kiddushin,even as it insists on a formidable synagogue partition during services, as follows:

(i) The misheberakh licholim recited during synagogue services could be replacedwith a misheberakh lishiddukhim. After all, R. Chaim Kanievsky is directlyquoted as having submitted that a misheberakh licholim [which typicallyconsumes a significant amount of synagogue time] can be greatly abbreviated byhaving the names of ill patients previously inscribed in ledger, and then brieflypraying that whoever is mentioned in the ledger [together with all other patients]should be healed30. The substantial amount of time saved by this abbreviationcould be used to recite a prayer for those who need to find marriage partners.After all, praying for a marriage partner is advocated by the gemara in Berakhot8a31. Moreover, as congregants are forced to articulate the names of singles duringthe course of the misheberakh prayer, they might think of suitable matches for thesingles.

(ii) All married ladies could voluntarily accept upon themselves to wear achapeau/handkerchief, and not a wig, when they leave the home. To be sure,many halakhic authorities, including R. Moshe Feinstein in his Shu”t Iggerot

29 Cf., however, R. Chaim Ben Attar, in his Or Hachaim commentary to Leviticus 19:29, who apparently conveysthe impression that a Jew should only arrange marriage through a matchmaker. A reconciliation of his remarks withthe talmudic passage in question requires further analysis.

30 R. Meshulam Feish Hart, on p. 34 of his Kuntress Virapo Yirapay (Bnei Berak 5763).

31 To that effect, R. Yitzchak Yosef, on p. 19 of his Yalkut Yosef, Sova Semachot I, encourages prayer as an effectivemeans to find one’s spouse.

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Mosheh, Even Ha’ezer II, no. 12, rule that a wig is perfectly acceptable for amarried lady, and that a husband is not entitled to insist that his wife wear achapeau/handkerchief instead32. [Indeed, some do not even require a married ladyto wear any head covering altogether33.] Nevertheless, an obvious consequence ofwearing wigs [or not wearing any head covering altogether] is to create confusionin the public eye as to which ladies are married and which ladies are available formarriage. It would certainly be easier for unmarried ladies to find their matches ifthey would not have to compete with the married ladies, who – for all intents andpurposes – appear virtually indistinguishable when they are wearing wigs [and allthe more so when they are not wearing any head covering]. Thus, granted that thehalakhah may perfectly well follow R. Feinstein that a wig is acceptable [or eventhe school of thought that no head covering whatsoever is required], it would stillbe a noble gesture of chessed for the married ladies to show compassion for theirunmarried colleagues by voluntarily wearing a chapeau/handkerchief. This wouldfacilitate the marriage prospects for unmarried ladies34.

(iii) All mesaderei kiddushin could agree to employ the prenuptial agreement outlinedby R. J. David Bleich on pp. 3-20 of his Benetivot Hahalakhah I. The prenuptialagreement is extraordinarily financially generous to the wife, beyond the norms ofstandard ketubah35. Presumably, the knowledge that, during a marriage, they will

32 Cf., however, R. Ovadiah Yosef in his Shu”t Yabi’a Omer V, Even Ha’ezer no. 5, who respectfully disagrees withR. Feinstein, and requires a lady to wear a chapeau/handkerchief. An analysis and resolution of that disputetranscends the scope of this essay.

33 See sources cited by R. Michael Broyde in Journal of Halachah and Contemporary Society, no. 31, pp. 123-126.

34 See Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 32 (subsection no. 4), where R. Feinstein permits a divorcee torefrain from covering her head under certain circumstances, for the sake of facilitating her finding an appropriateprospect for the mitzvah of kiddushin. That responsum implicitly recognizes the advantage a single lady enjoys interms of finding a prospect for the mitzvah of kiddushin when she is visually distinguishable from her marriedcolleagues.

35 This prenuptial agreement essentially obligates the husband, as part of the ketubah, to pay his wife a fantastic sumof extra mezonot every day. It must be emphasized that the extra mezonot have nothing whatsoever to do withdivorce. Divorce is not mentioned and is not desired. {Thus, the problem of disqualification of the prenuptialagreement due to asmakhta (-a contingency penalty clause that is unenforceable according to Torah law) is therebyavoided.} Rather, as R. Bleich explained in a telephone conversation with this writer on February 19, 2008, thepurpose of such extra mezonot is to allow the wife to attend an all-ladies’ yarchei kallah Torah study retreat in anyforeign location she chooses, at any time she chooses, in order to spiritually fortify herself. It is certainly reasonablefor a generous-minded groom to sincerely accept upon himself such an obligation prior to the marriage, in light ofthe insistence of the Chafetz Chaim and other poskim that nowadays Torah study should be made available to therighteous ladies of Israel.

R. Bleich acknowledges that there is an element of considerable novelty in his prenuptial agreementproposal. Certainly, the validity of his proposal depends entirely upon the credibility of the claim that a groom trulyaccepts upon himself before marriage to enable his future wife to depart on a yarchei kallah trip at any time shewishes. [In this writer’s opinion, a trip out of the home for any other purpose does not appear credible as earning thegenuine consent of the groom, in light of the value of kol kevudah bat melekh penimah that is codified by thegemara in Yevamot 77a and Shevu’ot 30a. (See also the Mefaresh to Nazir 12a, s.v. amar leih aminah lakh anaishah dilo naida, who understands the gemara there to be predicated upon kol kevudah bat melekh penimah, aswell.) See also R. Moshe Sofer, in his Chiddushei Chatam Sofer to Shabbat 21b, who posits that a lady whosehusband lights the Chanukah candles should not light her own candles, since the value of kol kevudah bat melekhpenimah opposes the gratuitous sortie of a married lady outside the home, and Chanukah candles are lit at the

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enjoy significant financial leverage over their husbands might allow ladies theease of conscience to accept marriage propositions with greater agility in the firstplace, thus accelerating the kiddushin process36.

But whether or not these innovative suggestions are implemented by the Jewishcommunity, it remains the case that a synagogue is obligated to adhere to the formidablestandards for a partition described in this essay, notwithstanding the inconvenience that isthereby imposed upon singles seeking marriage options. Ultimately, each person’s match isarranged from Heaven (whether it be a zivug rishon or a zivug sheni), as per the gemara inMo’ed Kattan 18b, such that one may rest assured that even the tallest of synagogue partitionswill not hinder the fortuitous materialization of Providence.

CONCLUSION

The subject of a synagogue partition is shrouded in the mystery of insoluble sfekotdescribed by this essay. Since the Torah is not given to ministering angels (as per the gemara inBerakhot 25b), there is no choice but to manage these sfekot as best as one humanly can, giventhe rules of sfekot that have been described by Shulchan Arukh Yoreh De’ah. Hopefully, thisessay has successfully fulfilled the task.

In conclusion, then, assuming the foregoing analysis of sfekot-management is accepted, asynagogue cannot rely on a ten-handbreadth high partition, due to a safek issur di’oraitagenerated by the intractable dispute among the poskim described in this essay. To be sure, anumber of authorities have indeed countenanced reliance upon a ten-handbreadth partition, andwith good reason. Prior to the publication of this essay, any congregation which would have

entrance of the home.] Nevertheless, R. Bleich affirms that he carefully consulted with R. Shlomo ZalmanAuerbach, R. Jacob Kamenetzky and (yibadel lichaim) R. Joseph Shalom Eliashiv who all approved of, and indeedencouraged, the prenuptial agreement. Apparently, then, those authorities agree with the credibility of the yarcheikallah claim. [The essential point here is that kol kevudah bat melekh penimah cannot be invoked to hinder a ladyfrom leaving the home for the noble sake of attending a yarchei kallah.]

36 Admittedly, however, R. Moshe Feinstein specifically discourages the wholesale employment of prenuptialagreements in his Shu”t Iggerot Mosheh, Even Ha’ezer IV, no. 107. [Intriguingly, there are two different publishedmanuscripts of that responsum. The edition to which this footnote refers is that published by the Moriah OffsetCompany of Brooklyn, NY (in contradistinction to the edition published in Israel by Yeshivat Ohel Yosef Printers aswell as the one published in the United States by Noble Book Press Corporation).]

Perhaps one may respond that R. Feinstein’s objection occurs in the context of a different kind ofprenuptial agreement – viz., that if a dispute between the husband and wife will arise in the future, they agree toadjudicate their dispute before a particular halakhically expert Beth Din. Perhaps R. Feinstein only objected to sucha prenuptial agreement because it is not proper to anticipate disharmony arising in the family. By contradistinction,R. Bleich’s pre-nuptial agreement, strictly speaking, has nothing to do with disharmony, but rather with providingthe wife with as many yarchei kallah opportunities as she seeks for promotion of her own spiritual welfare. Even awife who is in a state of harmony with her husband may seek to enjoy the benefits provided by this prenuptialagreement. Accordingly, perhaps R. Feinstein would not object to the wholesale employment of such a pre-nuptialagreement. The matter requires further analysis.

{N.B. The Beth Din of America has also formulated a prenuptial agreement, available athttp://www.bethdin.org. Certainly, the Beth Din of America is to be praised for its heroic efforts and sparkling Torahgenius that it has manifested in the development of this excellent prenuptial contract. At the same time, R. Bleich, onpp. 21-31 of Benetivot Hahalakhah I, demonstrates [with the request of the kind forgiveness of the RabbananHaGe’onim, shlit”a, of the Beth Din of America] that the prenuptial agreement is not halakhically enforceable, dueto an asmakhta.}

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followed that pesak halakhah would have been entirely justified in so behaving, just like thetownspeople of Rabbi Eliezer in Shabbat 130a. Those individuals were wholly righteous andfully deserving of divine blessing. Nevertheless, with the publication of this groundbreakingessay, and the demonstration therein that the question of a synagogue partition constitutes anunresolved dispute regarding a biblical prohibition, the congregations that have previously reliedupon a ten-handbreadth high partition become obligated to modify their practice. Otherwise, it issimply forbidden to recite kaddish, kedushah or barkhu.

Indeed, this essay has demonstrated that a synagogue must possess at least an eighteen-handbreadth high partition (which may even be reduced to a height of sixty or even perhaps fifty-eight inches, assuming that the partition always exceeds the shoulder height of the ladies presentin the synagogue37). But even so, under no circumstances may there be a break that exceeds threeinches [-either inside the partition framework or between the partition and the walls of thesanctuary], and even smaller breaks should be eschewed by a spiritually elevated congregation.Moreover, there cannot even be a gap [which exceeds three by three inches] within threehandbreadths of the ground. Moreover, even if the congregation is willing to tolerate gaps [ofthree inches by three inches or less], there cannot be a lattice network of such gaps. Rather, thegaps – which can at most individually measure three by three inches each – must be positionedthree or more handbreadths apart. [The only exception to this latest stringency occurs withinthe bottom three handbreadths of the ground.] Furthermore, the mechitzah cannot be synthesizedout of cloth or canvass.

It may also be noted that, as per the final two paragraphs of section D above, if there areone or two unusually tall ladies whose shoulder height exceeds the kinaesthetic barrier partition,synagogue prayer is still possible, thanks to a sfek sfeka likula.

Alternatively, if the synagogue partition possesses a gap within three handbreadths of theground, it must be a visual barrier [i.e. taller than the tallest worshipper present], as per sectionG.

As a distinct alternative, if the synagogue partition is synthesized out of cloth or canvass,it must be a visual barrier [i.e. taller than the tallest person present]. Under such conditions, themechitzah must be securely anchored at all its edges along all its sides, such that the onlyswaying that occurs is of the excess material in the middle of the partition [but the edges remaincompletely opaque.] Moreover, the mechitzah will be disqualified if it is capable of swayingthree handbreadths in the wind (and, according to many opinions, even if it would sway less).Moreover, under such conditions, there cannot be any gap at the foot of the barrier, as per theconcluding three paragraphs of section G.

The above guidelines apply to a congregation that is willing to rely upon the synthesis ofa novel sfek sfeka likula. A congregation that refuses to synthesize a novel sfek sfeka likula (inaccordance with the view of the Shakh) would always be obligated to construct a visual barrier,and one that is not synthesized from canvas or cloth, and one which does not even posses a gapwithin three handbreadths of the ground. [At the same time, even if a congregation is stringentlike the Shakh, if the congregation also subscribes to the Chavot Da’at’s interpretation of theShakh, viz., that a novel sfek sfeka likula may be synthesized even according to the Shakh whenthere is a question whether any biblical prohibition at all is relevant to the scenario in question,then the case could be arguably made, as well, that the congregation might perhaps rely on a sfeksfeka likula in the context of the mitzvah of a synagogue partition. The matter requires furtheranalysis, and resides beyond the competence of this writer.] 37 See supra, footnote no. 13.

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When constructing a visual barrier, it is appropriate that it be one through which theladies can see the gentlemen’s section, such as via a one-way-glass38.

These norms apply when the congregation prays inside any building – be it a synagogueor otherwise [as per Shu”t Iggerot Mosheh, Yoreh De’ah II, no. 109]. By contradistinction, whenpraying outdoors, the requirement for a synagogue partition is replaced by that of a four-cubithorizontal buffering space zone39. Presumably, one should envisage a virtual rectangleencompassing all the gentlemen participating in the outdoor prayers, and from the edges of thatrectangle draw the buffering zone in every direction. [A similar geometric methodology isemployed when calculating halakhic city limits as well as an individual’s personal four-cubitentourage, as per the fourth and fifth chapters of Tractate Eruvin.] The definition of outdoorparticipants is the population of individuals who are both capable of hearing the shali’ach tzibburand of seeing one another in an unbroken chain40. {N.B. Although the Temple external courtyarddescribed in Sukkah 51b – which serves as the entire precedent for the synagogue partitionobligation – was unroofed, the Temple Mount complex was surrounded by walls and so wastreated as an indoor area.}

While implementing these conclusions into the synagogue architecture, it is importantthat one internalize the remarks of R. Joseph Saul Nathanson in his Shu”t Sho’el UmeshivKamma II, no. 22, which are cited approvingly by R. Ovadiah Yosef in his Shu”t Yabi’a OmerX, Orach Chaim no. 15. R. Nathanson was asked whether one may aggrandize the area of theladies’ section of the synagogue at the expense of the area of the gentlemen’s section of thesynagogue. The author responds affirmatively, declaring “it is a great mitzvah”, and citing theSages to the effect that “in the merit of the righteous ladies [of the Jewish People] were ourancestors redeemed,” and that it was precisely the ladies’ donations to the Tabernacle which theTorah cherishes. In other words, R. Nathanson is acknowledging that the real spiritualpowerhouse of Jewry is the House of Jacob. It is the ladies who are the champions of prayer, andthey must be given first priority in assigning comfortable synagogue seating41. The significantbifurcation of the sanctuary that is required by virtue of Leviticus 19:30 coexists simultaneouslyand harmoniously with the recognition that the ladies are the principal worshippers who are to behonored in the House of G-d. Moreover, the gemara in Niddah 45b expounds upon Genesis 2:22to establish that ladies are endowed with superior understanding. It comes as little surprise, then,that the major laws of amidah are derived from a righteous lady (viz. the biblical Chanah), as perthe gemara in Berakhot 31a. Hopefully, the gentlemen will learn a lesson from the praiseworthyladies of Israel in how to genuinely fulfill the mitzvah of tefillah.

38 See supra, footnote no. 15.

39 See supra, footnote no. 17. In light of the calculation offered supra, footnote no. 11, four cubits may equal asmuch as 240 cm.

40 See sources to this effect cited by R. Simchah Rabinowitz in his Piskei Teshuvot to Orach Chaim no. 55,subsection no. 22.

41 Admittedly, R. Nathanson’s ruling (which is upheld by R. Yosef) is contested by Mori ViRabbi R. EfrayimGreenblatt in the latter’s Shu”t Reevivot Efrayim VI, no. 67. R. Greenblatt prohibits expanding the ladies’ section atthe expense of the gentlemen’s section. However, this does not seemingly affect the substance of the thesis at hand,because R. Greenblatt opposes R. Nathanson on purely technical grounds, but does not dispute his essential thematicpoint, viz., the superior righteousness of the ladies of Israel. [And see also the newly published manuscript of Shu”tRabbi Akiva Eger Hachadash IV, Orach Chaim no. 13 (subsection no. 5), where R. Akiva Eger authorizestransformation of a gentlemen’s section into a ladies’ section.]

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This may also explain the remarks of R. Jacob Etlinger in his Arukh Laner commentaryupon Rashi to Sukkah 51b (s.v. chalakah haitah). The Arukh Laner inquires why the externalcourtyard of the Temple is known in rabbinic parlance as the ezrat nashim, when in fact ladiesare perfectly authorized to enter the inner courtyard of the Temple just as well, as established byTosafot to Kiddushin 52b (s.v. vikhi ishah ba’azarah minayin). The Arukh Laner answers thatthe outer courtyard is termed the ezrat nashim because of the gallery that was constructed thereinfor the ladies participating in the Rejoicing of the Water Drawing. It seems to this writer that themeaning of the Arukh Laner’s comments is that the sacred service of the righteous ladiesdeserves overriding recognition, and so the courtyard is named as a token of appreciation to theladies, paying homage to their spiritual leadership of Jewry.

To that effect, one may metaphorically compare the matter to a king who surveys hisarmy, as its various divisions (e.g. the marines, navy, air force, etc.) proudly parade before himin separate sections. To the king, each soldier is most precious, and each soldier is requested tostay with her/his kind, thus enhancing the organizational and visual magnificence of the militarydisplay. By analogy, the Jewish People is the holy legion of the King of kings, as per Exodus12:41. Each soldier is precious to the King of kings, and indeed each soldier must realize that forher/his sake the entire universe was created, as per the mishnah in Sanhedrin 37a. And eachsoldier is requested by the King of kings to enhance the perceived Majesty of the King byremaining in the Sanctuary with her/his own division, separated from the other division with aformidable partition. The elite division of the King of kings’ army is the ladies’ division, andshould be saluted accordingly.

It is also appropriate to keep in mind the gemara in Bava Batra 58a, which discusses theidentity of the all-time aesthetics contest winner. All people compared to Sarah our matriarch arelike monkeys compared to a human being, declares the gemara. But Sarah herself compared toEve is, in turn, like a monkey compared to a human being. And Eve herself compared to Adamis, in turn, like a monkey compared to a human being. And, finally, the clinching comparisonpresented by the gemara is that even Adam himself compared to the shekhinah is like a monkeycompared to a human being. [“Adam bifnei shekhinah kikof bifnei adam”.] In other words, eventhe all-time winner of the pulchritude contest of human civilization [-Adam-] is nothingcompared to the dazzling beauty of the divine presence. Experiencing a revelation of theshekhinah is the most overwhelming and wonderful manifestation of beauty that can be endured.And Deuteronomy 23:15 declares that the shekhinah visits the Jewish People when the JewishPeople conducts itself with sanctity. Thus, it fortuitously emerges as a refreshing conclusion thatthe implementation of the proper specifications of a partition in the synagogue will surely lead toa manifestation in its midst of the greatest beauty – the sparkling beauty of the shekhinah.

Tam Vinishlam Shevach Li(K)el Borei Olam