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      Op-Ed: Gender Segregation on Buses is Not Jewish Law

      Published: Friday, December 30, 2011 12:30 AM
      Rabbi Melamed gives the religious Zionist rabbinic view on the issue of the day.


      Q: According to Jewish law, must there be separate public transportation and streets for men and women, or is it a 'hiddur mitzvah' (enhancement or meticulous observance beyond the formal demands of the law)?

      A: Clearly, there is no obligation, and not one eminent Rabbi who dealt with halakhic questions rising from traveling on buses, claimed that it was an obligation (see 'Igrot Moshe', Yoreh Deah 2:14; Darchei Tahara 5:50). Therefore, the entire question is whether or not it is considered a 'hiddur mitzvah'.

      The Difference between Requirement and 'Hiddur'

      The difference between a mitzvah which one is required to fulfill and a 'hiddur mitzvah', is that a required mitzvah must be fulfilled even under difficult circumstances, and even when, seemingly, the results of its fulfillment will be problematic.

      The famous example of this is what our Sages said concerning King Hizkiyahu, who refrained from fulfilling the mitzvah of 'puru u'rvu' (being fruitful and multiplying) because he saw in 'ruach ha'kodesh' (Divine inspiration) that he would beget evil children. The prophet Isaiah came to inform him that as a result of this sin, Hizkiyahu would die in this world, and not live in the World to Come.

      Hizkiyahu repented, and was awarded an additional fifteen years of life, in which he had a son, Menashe, who indeed was the most evil of all Israel's kings (Tractate Berachot 10a). Seemingly, Hizkiyahu's first thought was correct; however, from the seed of the evil King Menashe, the ancestry of King David was continued, including many eminent leaders of Israel, until our righteous Mashiach, may he come speedily in our days. We must fulfill the mitzvot and not engage in cost-benefit calculations.

      On the other hand, when it comes to a 'hiddur mitzvah', the reward incurred by its observance must be weighed against the loss likely to be suffered by its performance. At first glance, the 'hiddur' might seem beneficial, but in the future, damaging things can stem from it. This is what is known as the 'weighing of saintliness'.

      The 'Weighing of Saintliness'

      In his book "Misilat Yisharim" (chapter 20), Rabbi Moshe Chaim Luzzato (also known as the Ramchal) wrote that "weighing saintliness", that is deciding when that trait is inappropriate or suitable, is "an extremely fundamental process".

      The episode of Gedaliah ben Achikam (Jeremiah 40:13), the leader appointed by the Babylonian conquerors to govern Judea after the Temple's destruction, provides a clear illustration of this fact. Because of his abundant saintliness, which would not permit him to judge his enemy Yishmael adversely, or which would not permit him to receive slander, he said to Yochanan ben Kareach, "You are speaking falsely of Yishmael."

      In the end, Yishmael murdered Gedaliah, and all the people with him, and Israel's last hope of rebuilding Judea was extinguished. The Talmud (Tractate Nidah 61a) attributes the death of those men who were killed to the sin of Gedaliah's abundant saintliness.

      It was also such incorrectly "weighed" saintliness in the incident of Bar Kamtza that was responsible for the destruction of the Temple. The Talmud (Tractate Gittin 56a) relates the story of Rabbi Zechariah ben Avkulos, who, even in a situation of national danger. 'pikuach nefesh', refused to sacrifice an imperfect animal for the Caesar, and thus caused the war which lead to the destruction of the Second Temple. It was to this that Rabbi Yochanan was referring when he said, "The humility of Rabbi Zechariah destroyed our Temple, consumed our Sanctuary and exiled us among the nations."

      Rabbi Luzzato adds that if a certain custom of saintliness provokes laughter or ridicule, it should not be performed.

      Segregating Buses and Streets is not Saintliness

      Seemingly, from an aspect of modesty, segregating buses and streets is advantageous; however, its damage exceeds its benfits, for a number of reasons:

      First, all issues of 'hiddur mitzvah' should be personal acts, for in halakhah there are clear definitions of what is required, what is optional,. When customs of 'hiddur' are turned into obligatory public decrees, such policies destroy the foundations of Torah and halakhah.

      Secondly, when some people are negatively affected by the 'hiddur', the damage caused is immeasurably greater than any benefits. However, if a certain group of people want to organize private buses operated according to customs they have chosen to keep, this does not negatively affect anyone who is not a member of the group, for no one is forced to travel with them.

      Thirdly, this type of policy harms proper family behavior.. According to these rules, a man cannot sit next to his wife, a father cannot sit next to his daughter, and a mother cannot sit next to her son. At public events, it is the custom of religious Jews to have separate seating for men and women; however, traveling on a bus is not considered a public act, but rather an individual act that each person does for himself.

      Fourthly, when dealing with the laws of modesty, special care must be taken, for sometimes additional laws are liable to arouse more forbidden thoughts. If this is the case, one could claim that all the customs of modesty which the Sages decreed are liable to cause forbidden thoughts. However, there is a significant difference between the regulations of the Sages and what is invented by various personalities from hareidi circlest. In their regulations, the Sages were able to create a modest society with respectable distance between men and women, except for spouses, but they did not attempt to prevent informal encounters, whereas the new stringencies try to prevent them. Since it is impossible to prevent this, any informal encounter or glimpse of a woman will only give rise to unwanted urges.

      How Should Soldiers React

      Q: How should a soldier react at an official event in which women sing, and his officers threaten that if he leaves, he will be punished with imprisonment and discharged?

      A: Since the vast majority of 'poskim' (Jewish law arbiters) agree that it is forbidden for a man to hear a woman sing at a live concert or event, and this is not considered a custom of saintliness, but rather an absolute law, it is proper for him to leave the event – no matter what punishment he is given. As Rabbi Moshe Chaim Luzzato (Ramchal) wrote in his book "Misilat Yisharim" (chap. 20): "A man must observe all of the mitzvoth with all of their fine points without fear or shame, no matter in whose presence he finds himself, as it is stated (Psalms 119:46), "And I will speak of Your testimonies before kings and I will not be ashamed" and (Avoth 5.23), "Be strong as a leopard..... In fine, what is essential in respect to mitzvoth must be performed in the face of all mockery." (This complex issue requires further investigation, which, God willing, I will attempt to do in two weeks).

      Permit in Time of Distress

      In individual circumstances, where a man found himself at an event or memorial ceremony, and suddenly a woman got up to sing, in the past it was customary to instruct that in order not to cause humiliation, if he wanted to, a man could rely on the rabbinical opinions who hold that as long as he does not have intention to gain pleasure from the singing, does not look at the singer, and thinks about other things – it is not prohibited. This is how certain rabbi's behaved, not leaving Memorial Day ceremonies when a female singer performed, for since the majority of people were not familiar with this halakhah, if the rabbi's would have left in the middle of the ceremony, the bereaved families would have been insulted.

      Times Have Changed

      However, since it appears that after the recent media assault the halakhah forbidding a man to hear a woman sing at a live performance has now become public knowledge, leaving a ceremony in which a female sings is not considered insulting, because now, everyone realizes that it is a matter of halakhah, and it is appropriate for any decent person to respect another's lifestyle – all the more so, a Jew should respect others who follow the Jewish tradition. And, if nevertheless, somebody participating in the event chooses to be offended – even a bereaved family member – he is to blame for his own anger. He is not offended by us, but by the heritage of his forefathers.

      Other Exemptions

      Professional soldiers, however, whose commanding officers act tyrannically and do not agree to discharge them from hearing women singers, and fear that if they refuse orders they will loose their jobs, are permitted to rely on the lenient opinions, as long as they don't intend to gain pleasure from her singing and don't look at her. Also, officers who must to be present with their soldiers at a military display and have no one to replace them are permitted to rely on the lenient opinions, under the specified conditions.

      The Responsibility of Rabbi's and Politicians

      Unfortunately, after the religious cadets who refused to hear women singing were discharged from the Officers Course, the I.D.F. Rabbinate was silent, and to this day, remains speechless. And since it has thus removed responsibility from itself, the Chief Rabbinate should have gotten involved by convening the Rabbinical Council in order to determine an unequivocal position, stating that the soldiers acted properly, and they should continue acting this way at all times, and demand the removal of the Colonel and the Brigade Commander who discharged them.

      True, today's Rabbinical Council is not an independent halakhic body as it used to be, nevertheless, its duty remains to pronounce the position of halakhah to the general public. As long as they refrain from doing so, the prohibition of hearing women sing is perceived by the secular society as an excessive stringency, whose only purpose is to annoy them and insult women.

      The truth is that the majority of secular society respects religious people, and if they were to hear a clear position from the Chief Rabbinate, they would understand that it is not proper to force soldiers to hear women singers. Nevertheless, even if the Chief Rabbinate believed that it was possible to settle the issue quietly and pleasantly, as was publicized in their name, since the issue made headlines, and the Chief of Staff repeatedly states that all soldiers are obligated to participate in ceremonies in which there are female singers – this being a holy secular principle – it is the Chief Rabbinate's duty to officially publicize the position of halakha.

      In any case, reality will no longer allow rabbi's to be lenient, because at every public event they participate in with a woman singer, all of the cameras will be focused on them, "thus shall there be contempt and wrath in plenty", for if they wish to be lenient, they will have to erase what is written in the Shulchan Aruch (the authoritative Code of Jewish law) (Even HaEzer 21:1).

      Regarding the Chief Rabbinate

      Something strange was printed in the supplement of the hareidi newspaper 'Ba'Kehilla' on the 27th of Kislev, on page 31. This is what was written: "It is no secret that today, more than any other time in the history of the Rabbinate, the present Chief Rabbi's represent the opinion of the 'Shulchan Aruch', and impose with whatever means they possess the rule of halakhah. The Rishon l'Tzion, the Gaon Rabbi Shlomo Amar, shlita, whose 'cushion and robe' are found among the greatest religious authorities, would never modify, under government pressure, a section from the 'Beit Shmuel' or 'Pitchei Teshuva'.

      The Chief Ashkenazi Rabbi, the Gaon Rabbi Yona Metzger, shlita, who was raised in the house, and was the senior student of my teacher, the Gaon, Rabbi Chaim Goldvicht, ztz"l, casts all of his prestige and influence on every halakhic accuracy."

      It should be pointed out that in the history of the Rabbinate there served great Torah sages, first and foremost by our teacher Rabbi Avraham Yitzchak HaKohen Kook, ztz"l.

      Shouldn't the paper on which this was written be spared the shame of having to bear such nonsense?!

      In any case, these statements truly obligate the Chief Rabbis to act, for if not, such extravagant praises will turn into a great reproach. May the Chief Rabbi's merit standing by the side of the halakhah-observant soldiers, and precisely by doing so, increase unity amongst Israel.