Height of a Mehitzah

Minimally, one could say that it has been a universal Jewish practice from ancient times until the modern age that men and women do not sit together during worship. Even the late Rabbi Avraham Yitzhak Kook, the Ashkenazic Chief Rabbi of the Land of Israel, had to admit that “even if this is a matter of customary practice (minhag)… it is a weighty matter because ancestral customs have the status of Torah” (written in 1923 in response to growing neglect of maintaining a mehitzah even by some “Orthodox” Jews, and quoted in The Sanctity of the Synagogue, ed. B. Litvin [New York, 1959], pp. 48-49 [Hebrew section]). And, although we do not directly derive law from legend (aggadah), we can still learn from nonlegal sources just how Jews behaved with rabbinic approval (sse Yerushalmi, Pe’ah 2:4).

There are many examples that show how it was universal custom for men and women not to worship together. Several examples are found in the Torah. Genesis 25:21 states that “Isaac prayed on behalf of his wife because she was barren.” The midrash interprets the word that seems to mean “on behalf of” (le-nokhah) to mean “opposite her,” from this inferring that Isaac stood in one corner and Rebekah stood in another as they both prayed (Bereshit Rabbah 63:5 and quoted in Rashi on Genesis, ibid. For this use of le-nokhah, see I Kings 20:29). Furthermore, in the Book of Exodus, after crossing the Red Sea, Miriam “took a timbrel in her hand; and all the women of the land went out after her with timbrels and with dances” (Exodus 15:20-21). This demonstrates that, in the first act of Jewish communal prayer, women and men did not sing their song of thanksgiving in mixed company. Additional support for the separation of women and men during the Torah period is found in the Rabbinic Midrash Pirkei D’Rabbi Eliezer (chapter 41), which, based on Exodus 19:15, maintains that women and men were separated at Mount Sinai when they received the Torah (this source is considered by Rabbi Menachem Kasher, the author of the epic biblical encyclopedia Torah Sheleimah, vol. 15, p. 94, n. 183, to be one of the most important confirmations of the historical separation of the sexes). This is one of the many examples where the practice of the patriarchs and matriarchs and our ancestors is seen as support for later Jewish practice (see, e.g., Berakhot 26b; Maimonides, Mishneh Torah, Hilkhot Tefillah 1:5 and Kesef Mishneh thereon). We see this explicitly mentioned in Yalkut Shimoni (1:934), an authoritative rabbinic collection of law and lore, which states, “A man should not stand among women and pray because he will mind the women; he should rather sanctify his site five cubits on each side.” Indeed, it is an important principle that ancestral custom is legal precedent; and it is an important principle that the practice of pious Jewish women is legal precedent (see Menahot 20b, Tos. s.v. nifsal; Niddah 66a and parallels; Yerushalmi, Pesahim 4:1). And regarding this custom especially, it is well known that pious Jewish women separated themselves from men so that both could concentrate on their respective prayers without distraction and in a state of modesty (tzniyut). So it always had been among the Jewish people. And if this is what has been universal Jewish custom, then it is best to argue for the validity of such custom and not attempt to give it a more specific legal status, something that in the end will be a disservice (see Maimonides, Mishneh Torah, Hilkhot Mamrim 2:9). There are many responsa on this topic, including the ones mentioned below; see, for example, Rabbi Moshe Sofer (Responsa Hatam Sofer, Orah Hayyim #28 and Hoshen Mishpat #190) and Rabbi Moshe Shick (Responsa Maharam Shick, Orah Hayyim #77) as well as Rabbi Isaac Herzog, Rabbi Aharon Kotler, and Rabbi Joseph Soloveitchik (quoted in The Sanctity of the Synagogue).

We actually know exactly when and where the practice of “mixed seating” began. In the 1850s, Isaac Mayer Wise (the father of Reform Judaism in America) borrowed a Baptist church for his Reform services in Albany, New York. He found the mixed-seating pews of the church so to his liking that he decided to retain this feature for his temple. Along with the mixed seating, he introduced other innovations that clearly departed from Jewish law and custom (see Jewish Encyclopedia, 16:563; many of these deviations directly violate the Torah commandment “Do not follow their [non-Jews’] ways” [Leviticus 18:3, 20:23]). Other Reform congregations followed this change (and after them, Conservative congregations). It is important to note, furthermore, that in the pre-Holocaust “Liberal” congregations in Europe, there were separate women’s sections in the vast majority of the synagogues.

In what manner men and women historically sat apart from each other during worship, however, is not exactly clear. In many places, the women’s section was a balcony where women sat above the men who were located on the main floor. Thus, we read in the Jerusalem Talmud (Sukkah 5:1) about the destruction of the synagogue in Alexandria, Egypt. This basilica-like structure was destroyed by the Roman Emperor Trajan. His army slew the men, but he offered to keep the women alive if they yielded to his legions. The women responded, “What you did to them down below, you will have to do to us on this upper level.” The women were martyred as well. From this tragic account, we learn that while the men were down below, the women prayed in a gallery above. At times, the women’s section (ezrat nashim) was called “the women’s synagogue,” in Yiddish, die weibische schul (see Responsa Terumat Ha-Deshen, 1, #353). For example, in the Shulhan Arukh (Hoshen Mishpat 35:14), Rabbi Moshe Isserles, in discussing who may be relied on as a witness in a court of law, writes, “It is an enactment of the early authorities that in a location where men are not wont to be, such as the women’s synagogue (beit kenesset shel nashim)…women are relied on [as witnesses]” (see also Shulhan Arukh Yoreh De’ah 265:11, where the woman helping with a circumcision brings the baby until [ad] the synagogue; it appears that she brought the baby through the women’s synagogue until the door of the men’s area). Here, it seems, men and women were in adjacent rooms during prayer. Thus, although we can be sure that men and women sat separately, we cannot be sure just how they did it. What is sure, however, is the fact that men and women did sit in separate sections of the synagogue and that these sections were clearly demarcated by local custom.

A short responsum by Rabbi Yosef Eliyahu Henkin should also be noted (Teshuvot Ibra, chap. 1, #10a in Kitvei Ha-Geri’a Henkin, vol. 2, p. 13). He writes that in a synagogue where men and women on occasion pray together without the separation of a mehitzah, it seems that if one is sure that a mehitzah can be installed, one should not be prevented from praying there. Rabbi Henkin reminds us that while we recognize the clear halakhic requirements of mehitzah, we must also recognize the importance of placing that requirement in a context of halakhic priorities, including the need to encourage both individuals and synagogues toward greater observance of mitzvot and the study of Torah.

In regard to the question of raising the mehitzah in this particular case, it is essential to define the height requirements for a mehitzah. In the Talmud, the word mehitzah has two meanings. In property law it denotes a boundary between one person’s property and that of another. The height of this boundary is a matter of local custom (see Baba Batra 1:1), to be distinguished from the type of universal custom with which we are now dealing. In the Sabbath law it denotes a vertical separation of ten handbreadths (tefahim—maximally about 50 inches; see Eruvin 1:11, 4a; Maimonides, Mishneh Torah, Shabbat 16:8, 17:7. For various opinions about the precise equivalent of a “handbreadth,” see Encyclopedia Talmudit, 20:659).

Since the word mehitzah is used by analogy, to what do we compare it: to mehitzah as used in property law or to mehitzah as used in Sabbath law? At this point we can now deal with the question of the mehitzah in this particular synagogue.

Here we have an explicit source, by the thirteenth-century German authority, Rabbi Mordecai ben Hillel, who wrote (Shabbat 3, 311), “A mehitzah erected for the sake of modesty (tzniyut) may be erected on the Sabbath, as is the case with what is erected between men and women at the time of the Sabbath sermon” (without violating the prohibition of “building” on the Sabbath). He cites a Talmudic source where the sage Shmuel of Nehardea erected such a mehitzah (of ten handbreaths) on the Sabbath for the sake of modesty, in that case for the sake of his privacy (Eruvin 94a; see Kiddushin 81a). Since all the modern rabbinic authorities who rightly prohibited mixed seating did so because of modesty, and since the height of the mehitzah in question is as high as the mehitzah required by Rabbi Mordecai (if not higher, since the women’s section in this synagogue is raised slightly, thus making the mehitzah, in effect, taller), then the mehitzah is certainly “kosher,” i.e., proper (it has been noted by many that Rabbi Joseph Soloveitchik ruled that a mehitzah of ten handbreaths is halakhically acceptable).

Finally, we must now examine the proofs that are brought by some prominent rabbinic authorities of recent times that can function as a support for those who object to the height of this mehitzah. They are all based on the passages in Mishnah, Tosefta, Babylonian Talmud, and Jerusalem Talmud that speak of the “great improvement” (tikkun gadol) that was carried out each year in the Temple in Jerusalem in order to prevent levity between men and women on the holiday known as Simhat Beit Ha-Sho’evah (Mishnah Sukkah 5:2, Mishnah Midot 2:5, Tosefta Sukkah 4:1; Sukkah 51b-52a; Yerushalmi Sukkah 5:2). On this holiday, which occurred on the second day of Sukkot, water was poured on the altar (mizbe’ah) and there was much joyous celebration (it was like a combination of Simhat Torah, Purim, and a Hasidic wedding—and more; see Sukkah 53a). In order to prevent improper fraternization between men and women, it was decided that on this holiday women should sit or stand in a balcony above the place where the men were standing. Maimonides states two different explanations of how this solved the problem. In his commentary on the Mishnah (Sukkah 5:2), he writes that the balcony was built in such a way that the men did not gaze at the women. However, in the Mishneh Torah (Hilkhot Lulav 8:12 and Hilkhot Beit Ha-Behirah 5:9), he writes that it was built to prevent intermingling between the men and women. Halakhic authorities, based on these two understandings, wrestle with whether the function of the mehitzah is to block the view of the opposite sex or merely to separate them. Rabbi Yoel Teitelbaum, the Satmar Rebbe (Responsa Divrei Yoel, Orah Hayyim #10), argues that the first view of Maimonides is correct and the mehitzah must block the view. However, Rabbi Moshe Feinstein (Responsa Iggerot Moshe, ibid.) writes that the basic law follows Maimonides’ second opinion. However, he writes that since the separation between the men and women in the Temple clearly was a stronger barrier than a separation of a mere ten handbreadths, he rules that the mehitzah in a synagogue must be higher than the usual meaning of this term taken from Sabbath law. His conclusion is that it should be shoulder height when the women are standing.

The basis for this analogy between the synagogue and the Temple in Jerusalem is based on the Talmud’s interpreting the term “miniature sanctuary” (mikdash me’at; Ezekiel 11:16) to refer to “the synagogues and houses of Torah learning in Babylonia” (Megillah 29a, see ibid. 28b). Of course, what these two institutions have in common most generally is that they are both places dedicated to the worship of God. Nevertheless, one should not infer from this general commonality specific points of law to apply to the synagogue. For the Talmud points out that there are many physical characteristics of the Temple that may not be replicated in the synagogue (Avodah Zarah 43a; see Maimonides, Mishneh Torah, Hilkhot Beit Ha-Behirah 7:1, 7). The essential difference between the synagogue and the Temple is that the synagogue is a place where our attendance is to be as often as possible, whereas the Temple was a place where our attendance was to be infrequent. Maimonides points out that this is the reason for the laws of purity: to keep most people out of the Temple for most of the time, thus making any visit to the Temple a rare and special occasion (Guide for the Perplexed, 3:47 re Hagigah 7a on Proverbs 25:17. See Kelim 1:8; Maimonides, Mishneh Torah, Hilkhot Bi’at Ha-Mikdash 7:5 re Yevamot and parallels; Hilkhot Beit Ha-Behirah 7:17. See also Berakhot 32b re Psalms 84:5). Thus in the synagogue anyone in a state of impurity may attend the services, and even gentiles, who were not permitted in the Temple, are welcome in the synagogue (see Berakhot 22b; Rabbi Moshe Isserles on Shulhan Arukh Orah Hayyim 88; Baba Metzia 24a).

With all due respect, one must question whether or not what pertained to the celebration of Simhat Beit Ha-Sho’evah in the Temple, with all its riotous levity, was not confined to that occasion alone. Hence the higher separation instituted between men and women at that time might very well have been for that time only. But the stricter opinion cites the Talmud’s argument, based on a verse from Zechariah 13:12, presented in this very context, that if men and women are to be separate at a funeral, when there is no suspicion of impropriety, how much more so should there be separation at a time when there is a suspicion of at least probable impropriety. Nevertheless, one can also interpret this a fortiori argument as follows: If there is separation between men and women at a funeral, then how much more separation should there be at a time of levity such as Simhat Beit Ha-Sho’evah? In other words, whatever means were employed to separate men and women at a funeral (ranging from separate seating without mehitzah to a low mehitzah to a high mehitzah), those required during a festive celebration would be that much more substantial. There are a significant number of commentators, first and foremost the greatest of all commentators, Rashi, who say just that (see Rashi on Sukkah 51b; Meiri, Beit Ha-Behirah, ed. Liss, p. 176; Middot 2:5 and Maimonides’ comment thereon, Rabbi David Fraenkel, Korban Ha-Edah on Yerushalmi, Sukkah 5:4; Maimonides, Mishneh Torah, Hilkhot Lulav 8:12). It is reasonable to suggest, therefore, that the type of separation required in a synagogue (whose atmosphere typically falls somewhere between the two extremes discussed above) need not have been identical to that necessitated by the unmitigated merriment of the Simhat Beit Ha-Sho’evah.

Furthermore, in carefully reading the opinions of the strict rabbinic authorities in this matter, it is rather surprising that they did not even mention two very pertinent Talmudic sources. From the Talmud we learn that the High Priest entered the women’s section of the Temple in Jerusalem on Yom Kippur to read the Torah aloud there. Also, we learn that in the days of the Second Temple, the King entered that same women’s section to read the Torah aloud for the public gathering known as Hak’hel, held every seven years. And it is clear that on both these occasions the reading was before a congregation of men and women (see Sotah 7:7-8; Sotah 40b, 41b; Yoma 69b; Maimonides, Mishneh Torah, Hilkhot Hagigah 3:1-2; Hilkhot Avodat Ha-Kippurim 3:10). We are not suggesting, God forbid, that there was not some type of separation in place on these solemn occasions. However, it would be rather forced to assume that it was the same separation instituted for Simhat Beit Ha-Sho’evah. The matter needs much more investigation.

Rabbi Yehi’el Ya’akov Weinberg, Responsa Seredei Aish, Orah Hayyim #14, discusses the above-mentioned differing opinions of Maimonides on the need for separation: to block the view of the opposite sex or merely to separate them. He points out that in the lands of Ashkenaz (Germany, Bohemia, Western Galicia) they followed the stricter view, while in Poland and Lithuania, the more lenient view was followed. He rules that each situation should be judged on its own circumstances. If it is possible to be strict and raise the mehitzah, it is a hidur mitzvah (literally, “a glorification of the mitzvah,” i.e., preferable). However, one should not cause controversy and destroy a community of “fearers of God” for this hidur mitzvah, since both opinions are acceptable according to the Halakhah. Although piety is always to be admired, those who wish to be stricter than our lawful custom in this matter must not cast any aspersions on it (see Shabbat 97a). After all, the current height of the mehitzah, fifty inches, has already been approved by at least four rabbis who have served as halakhic authorities in and for the congregation (see Shulhan Arukh, Yoreh De’ah 242:9-10 and Shakh thereon). Moreover, there are three other Orthodox synagogues in the community, each with a mehitzah with a height acceptable to those who wish to be stricter than the lawful custom of the synagogue. They are certainly free to pray in any of them. This does not constitute “separation from “the community” inasmuch as in our day there is no “community” as there was in former times; we have only separate, independent congregations (see Avot 2:4; Megillah 28b). However, if these well-meaning people do remain in the congregation, then they should be reminded in the most gentle way of the words of our sages, “In order to avoid controversy (mahloket), do not change [established and lawful custom]” (Pesahim 4:1. See comment of Bartinura thereon. This is the law even if the controversy is purely motivated [mahloket le-shem shamayim]; how much more so if, God forbid, it is not. See Avot 5:17; also Gittin 55b-56a; Tosefta Menahot 13:22 and Yerushalmi, Yoma 1:1). And furthermore, to create factions in a congregation in such a case is a sinful practice, one that leads to many other sins (see Yevamot 14a).

There are times when our sages reminded us that being too strict can lead to results that are the opposite of what was originally intended (see, e.g., Pesahim 91b and Rashi, s.v. medakdekim thereon). In the case of the fragile congregation, the raising of the mehitzah could very well lead a significant number of the members to leave the Orthodox synagogue and affiliate with more liberal congregations that are nearby. Therefore, let the custom that has been, and which is clearly halakhically acceptable, continue to be.