Thursday, October 29, 2009

Cheering for the Wrong Side!

Not much time to write. Though I really meant to comment on Rabbi Harry Maryles's post about Tyranny of the Majority - Imposing Chumros on the Public. Harry's post begins with these words:


Finally some common sense. The Transportation Ministry in Israel has determined that the Mehadrim buses are illegal.

Evidently, Harry saw a very poorly written JPost article and misread it to think that the Ministry of Transportation is fighting against Mehadrin buses. And he lauds this finding as "common sense".

Unfortunately, Harry doesn't always know what he is reading. I have said this before in relation to other Emes Ve-Emunah (sic) posts such as this one (see this comment and the 3 that follow) and this one (see this post). On the current post, I posted a comment which did not seem to make an impression on anybody. My comment was saying this:

The Ministry of Transportation is not fighting against Mehadrin buses! Just the opposite. The Ministry formed a committee to submit a report to the court to fend off the anti-Mehadrin-bus petitions of Naomi Ragen and the Israel Religious Action Center of the Progressive Movement.

The Ministry and Egged are fighting for the Mehadrin buses as is indicated by the much clearer INN news item that states:


The requirement by the "mehadrin" lines for men and women to sit separately is not legal, the committee reported to the court at its hearing. The Ministry noted that by law, any rider on the line can sit wherever he or she chooses. Nonetheless, the report also pointed out that it is permissable for men and women passengers to sit separately if they prefer.


What this means is that the ministry is not determining that the requirement is not legal. It is not their job or authority to determine what is legal or not. That is for the courts. They are merely saying that the Mehadrin buses have no legal authority to actually compel anybody to sit separately and, technically by law, women can still sit wherever they want, so the Mehadrin buses are not really infringing on anybody's legal rights and, consequently, there is no reason to interfere with them.

The next paragraph is clearer:


Representatives for Egged and for the Ministry reminded the Court that there were numerous alternative bus lines offered for riders who wished to ride integrated vehicles. The Ministry said that there currently are 90 mehadrin lines serving the hareidi-religious population throughout the country, and none of the permits for any of the lines obligates riders to segregate themselves.

They are "reminding" the courts that riders who prefer integrated lines have plenty of alternatives. Again, the point is that there is no reason to interfere with the Mehadrin lines.

The ministry AND Egged both want these Mehadrin lines. That is why they are answering the petition.

Now, as I wrote in my comment on Emes Ve-Emunah (not!), I believe that this action by the Ministry of Transportation does indeed reflect a rare display of common sense, just not the common sense that Rabbi Maryles has in mind.

Two other false points that were brought up by Rabbi Maryles are worthy of comment. One is his statement that:


Poskim like Rav Moshe Feinstein have weighed in on this issue long ago. There is no Halachic requirement to have segregation of the sexes on a public bus.

This is an unmitigated falsehood. Rav Moshe Feinstein never discussed the issue of segregation of sexes for the Israeli Jewish public. His responsa about public transportation merely addressed the American non-Jewish public where segregating sexes is out of the question. In fact, the only thing that can be said in his name in relation to what Jews who have choice must do in public is in Igros Moshe Orach Chaim A: 39 where, in the course of discussing the requirement of mechitzos in shuls, he bases the requirement on the gemara in Sukka 51b/52a and, based on that, concluded that Jews are required to segregate the sexes "in any place of gathering". I discussed this in an earlier post.

This brings me to the second false point in his post. Rabbi Maryles writes:


The idea of segregating the sexes is on a public bus is merely a Chumra insisted upon by Chasdic sects like those that live in Meah Shearim.

I have written about this countless times. Mekillim like to label Halachos that they do not follow as Chumros. Though there may be legitimate reasons to rely on lenient opinions on many matters, this does not justify calling one who does not rely on lenient opinions as a machmir. If it is in Shulchan Aruch, it is not a chumra.

In terms of segregating the sexes, it is more than clear from Shulchan Aruch Even HaEzer 21:1 as well as the simple pshat of Kedoshim Tihiyu according to Rashi and Devarim 23:10,15 and Rav Moshe's teshuva in IgM OC-A:39 and the gemara in Sukka 52a that it references that religious Jews must maintain separation of the sexes wherever it is possible to do so. This is not a chumra any more than Hilchos Yichud. It is Halacha.

To reprint from the post that I linked to 2 paragraphs ago:

It is a sad day in Israel when being medakdek b'mitzvos and not following kulos are called Chumras! And since the issue at hand is a the opportunity to be medakdek b'mitzvos, what is he talking about that grandchildren will be even more machmir? Shulchan Aruch hasn't gotten a bit more "machmir" in 450 years!!
So now I want to voice my main complaint and that is the title of Harry's piece:


Tyranny of the Majority - Imposing Chumros on the Public

Both parts of this title made me scratch my hairless head. For the second part, since when has Kedoshim Tihiyu become a chumra?

And for the first part, how can a majority be tyrannical? If that's what the majority (and the Ministry of Tranportation and Egged) wants, where's the tyranny?

4 comments:

Mikewind Dale said...

You cite the Shulhan Arukh's laws of the separate of men and women.

Rabbi Avraham Shamma writes on something similar to this in the following words, here:

{{Quote begins}}
We learn in the Mishna, Kiddushin 4:13: “A bachelor may not teach small children and a woman may not teach small children” The g’mara explains there (Babylonian Talmud Kiddushin 82a): “A bachelor – because of the mothers of the children (i.e., the mothers who bring their children to school and would meet the teacher [who is a bachelor]); a woman – because of the fathers of the children (i.e., the fathers who bring their children would meet the [female] teacher). Maimonides rules thus in two places (Hilkhot Isurei Bi’a 22:13 and see also Hilkhot Talmud Torah 2:4): “Whoever has no wife may not teach small children because of the boys’ mothers who come to school for their sons and he [the teacher] would be enticed by the women. Likewise, a woman may not teach little ones because of their [the children’s] fathers who come for their sons …”. The Shulhan Arukh also ruled this matter [in the same way] twice: Yo-re De’a 245:20-21 and Even HaEzer 22:20. I will ask, then, out loud: Is there anyone who conducts [himself] as such? Is there even anyone who wishes to conduct [himself] as such?

...

to be cont.

Mikewind Dale said...

Continuation of quotation:

...

Our teacher [R. Yosef Karo] ruled in the Shulhan Arukh: “A [male] person has to distance himself from women, very, very much. [Therefore,] it is forbidden to flirt … and it is forbidden to be frivolous with her, to be lightheaded in her presence, or to look at her beauty. Even to smell the perfume that is on her is forbidden. It is forbidden to look … lest he might have sinful thoughts about her. If one [i.e., a man] meets a woman in the market, he is forbidden to walk behind her, but rather runs and diverts her to the sides [of the path] or [to be] in back of him … and one who looks even at the small finger of a woman with the intent to derive pleasure, it is as if he looked at her privates … and it is forbidden to hear the lewdness of voice [of a woman] or to see her hair …” (Shulhan Arukh Even HaEzer 21:1)

I wonder out loud: Do all of those who arise to forbid hearing the voices of women uphold everything that is written in this halahka? Do they distance themselves from women very, very much? The answer is “absolutely not!”; certainly not [according to] the intent of our teacher [R. Yosef Karo]. It should be expressed in clear language: in our day, society is mixed (men and woman). And even in the most stringent haredi groups, there is a mixed society at various levels. Work places are mixed, even in the haredi sector, and married men and married women meet there on a daily basis for the course of hours. The grocery stores in this sector are completely mixed, at banks married men and married women work and meet; likewise, in the markets, the streets, and every locale. We find, then, that this halakha has been dismissed and ignored, until it is no longer regarded strictly. Go out and see what people do in the market!

It seems to me that this applies to other details in the continuation of this ruling in the Shulhan Arukh, and my intent is regarding the matter of hearing the voice of a woman – this [ruling], too, is not the same in our day as it was long ago. Could one conceive of permitting men, on one hand, to teach and educate young women between the ages of sixteen and twenty, and on the other hand forbidding them [the men] to hear the voice of a woman? Where is the judicial integrity? After all, this is a case of a fortiori: if both the [situations of] education and teaching young women, whether single or married, and [situations] of gender-mixed work environments have been permitted (as I will show further on), in spite of [the fact that] to our great sorrow, shameful incidents occur all too frequently, how much more so should there be no stringency in the case of hearing a woman’s voice, due to which shameful incidents are not commonly found - I have never heard that a person has transgressed because of this [hearing a woman’s voice].

...

to be cont.

Mikewind Dale said...

continuation of quotation

...

And so, one must really wonder, from an anthropological, sociological, and psychological perspective – what is the reasoning of those punctilious people to be lenient in the matter of teaching young women and to be stringent in the matter of hearing [a woman’s] voice? From a logical point of view, this [inconsistency] is intolerable, especially because those same people who rule stringently are not generally known for deficiencies in [halakhic] judgment. It seems to me, and this should be said as a generalization, that what is being considered is not really a matter of [women’s] modesty. Rather, halakha is being used as a religious marker. That is to say, in a situation where it is quite impossible to be stringent, such as distancing oneself from women very, very much, people aren’t careful. But it is very easy to be stringent in forbidding hearing a woman’s voice, while – in the best case - the added value of an internal sense of religiosity is great. In a less positive light, it is a minute effort for a huge return of being able to externally demonstrate one’s religiosity. This phenomenon, that generally is quite widespread, is worthy of penetrating criticism, and the words of the prophets are brimming with such [criticism].
{{End quote}}



As an aside, I will note that the Judeo-Spanish Sephardim universally allowed women to sing solo in the presence of men, because, as Rambam rules, kol isha is assur l'hanot like etzba ketana. If there is no hana'a - as the Sephardim held - then there is no issur. The Syrian and Egyptian Jews held likewise, and Rabbi Yehiel Weinberg confirmed that this reading of Rambam is correct.

Mikewind Dale said...

You say, "And for the first part, how can a majority be tyrannical? If that's what the majority (and the Ministry of Tranportation and Egged) wants, where's the tyranny?"

I am puzzled. This is explicit in the Federalist Papers, namely that the majority may band together and tyrannize a small majority. For example, what if the majority of the world decides to discriminate against Jews? This is tyranny of the majority.

This is the basis of the electoral college system of election in America, to prevent tyranny of majority.

This is also a halakhic principle. In The Jews of Rhodes, Rabbi Marc Angel notes that in Rhodes, any communal taqana needed only to be passed by the parnasim, with the approval of the rabbi. BUT, if the taqana only affected one sector of Jewish society, then that sector of society also had to approve.

For example: if there was a taqana to raise a new tax for everyone, yofi. But if there was a taqana to tax only the rich, then the rich had to agree too.

The same fear is evinced: tyranny of the majority.

When the Haredim decide to segregate buses, and they physically beat the women who refuse to comply, THAT is tyranny of the majority, not to mention a violation of shemirat negiah.