Today is March 20, 2018 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
This teshuva is part of a series. To read Rabbi Linzer’s original teshuva on this subject, click here. To read Rabbi Katz’s original teshuva in Hebrew, click here. To read Rabbi Katz’s original teshuva in English, click here. To read Rabbi Linzer’s response to Rabbi Katz’s teshuva, click here.
The taxonomy of halakhic discourse divides such discussions into two categories: halakhah and meta-halakhah. Halakhic conversations explore the nitty-gritty of the permitted and the prohibited: is the given issue permitted or not permitted; does a close reading of the relevant halakhic texts dictate a lenient or stringent approach; etc.? Then there are meta-halakhic explorations. These address larger philosophical questions of adherence to communal norms, commitment to theological tenets and fidelity to traditional jurisprudential postulates.
I recently wrote a teshuvah in which I argued that women may lead the tzibbur in Selihot and the recitation of the 13 Divine Attributes of Mercy, and that their serving as the tzibbur’s representative does not diminish the recitation’s liturgical value and theurgical significance. Our Rosh Yeshiva, R. Dov Linzer, wrote a response critiquing my conclusion. He challenges some of the specifics of my interpretation of various halakhic texts and also disagrees with certain philosophical, meta-halakhic assumptions that inform my psak. In this essay, I will attempt to address both aspects of his critique. Before I start, here is a brief outline of the arguments that led to my conclusion that the theurgical power of the 13 Attributes of Mercy is not diminished by the recital of a woman serving as communal representative.
Brief Summary of the Original Claim
The source for the idea that the recitation of the 13 Attributes of Mercy has theurgic powers is the gemara in Rosh HaShanah (17b). The gemara recounts the following conversation between Moses and God.
‘And the Lord passed by before him and proclaimed.’ R. Yohanan said: Were it not written in the text, it would be impossible for us to say such a thing; this verse teaches us that the Holy One, blessed be He, wrapped His tallit around Himself like a communal leader and showed Moses the order of prayer. He said to him: any time Israel sins, let them perform this service before Me and I will forgive them.
Simply read, this gemara tells us that God wrapped Godself in a tallit, just like a person who leads the prayers who also wraps himself in a tallit, and recited the 13 Attributes. God then told Moses that if the Jews followed this liturgical routine (seder) their sins would be forgiven. This text is the exclusive Rabbinic source for this unique prayer service; it tells us what is said, how it is said and what its theological consequences are.
A close analysis of the halakhic and theological contours of this narrative leads me to believe that it applies to women as much as it applies to men, and that a woman’s recitation would have the same theurgical power as that of a man. My argument is based on a fivefold claim about the meaning and theological mechanism of this ritual:
Based on these five claims, women should be allowed to lead Selihot even though they cannot act as shelihot tzibbur for prayers that require a minyan. The efficacy of the recitation of the 13 Attributes, according to the caveat introduced by Tur is not contingent on the presence of a halakhically valid tzibbur; a tzibbur that does not constitute a minyan may recite them as part of their liturgy דרך קריאה as long as they do not use a liturgical tune. A group that is saying Selichot with a female shelichat tzibbur could therefore recite the 13 Attributes דרך קריאה, the way one reads verses when reading for themselves and it would still be as effective theurgically as if the recitation were led by a man.
My halakhic conclusion also entails a theological postulate. Hazal tell us (Brakhot 8b) that the prayers of the tzibbur are far more effective than the prayers of an individual, and that people should pray bi’tzibbur when they are in need of Divine benevolence. I believe that the theurgical power of the collective comes from being a physical collective – a group of people – performing a mitzvah together regardless of whether their collective constitutes a minyan. Therefore, in our case, the power of the Selihot is not diminished by having a woman lead. True, the woman’s leading doesn’t bestow the status of a halakhic tzibbur to the collective prayer, but that is irrelevant. The group attains the power of collective prayer nevertheless. The only time one needs to pursue tefillah bi’tzibbur is when saying prayers that require a halakhic tzibbur (minyan); since reciting the 13 Attributes does not essentially require a halakhic tzibbur, as Tur pointed out, there is no reason to give preference to a minyan. It is unnecessary halakhically and theologically irrelevant.
That is the main halakhic claim I made, but I supplemented my argument with a larger two-pronged methodological postulate:
For our purposes, when a posek is asked whether women are excluded from leading Selihot, they look at the precedent established by similar questions regarding women’s inclusion: What happened when rabbis were asked about other cases where women were assumed to be excluded al pi halakhah (according to halakhah)? As it turns out, the assumption has been proven wrong time and again and women actually are or may be included though we might have initially thought they were excluded. May women study Talmud? The assumption was that they could not, but it turns out that they can. May women lead the kahal in the recitation of kiddush on Shabbat morning? The assumption was that they cannot, but halakhah, it turns out, thinks they can. May women read megillah for other women? We thought that they cannot, but it turns out we were wrong; they can. Given this repeated precedent of restored inclusion, one may begin similarly inclined in other cases of assumed exclusion. Therefore, when a posek is asked whether women may lead Selihot, the legitimate starting point would be to assume that it is allowed since that was the conclusion in similar scenarios. This starting point lays the foundation for the subsequent deliberation. Those precedents are not dispositive but they set the bar for the level of proof necessary in order to make a contradictory claim, namely, that women are halakhically excluded.
These are my main claims. R. Linzer has honored me with an extensive critique. His critiques appear next (in italics) along with my responses. I begin by addressing the meta-halakhic question and then turn to the halakhic issues.
R. Linzer’s Critique and My Response – Part 1: Meta-halakhah
In his opening section, Rabbi Katz states that given the many decision points of psak in terms of how to weigh and interpret various sources, a posek must determine his point of departure. Does he assume that something is permitted unless it can be proven otherwise, or the reverse? He goes on to state that if we find regular psak in a certain area to always be that something is permitted, then we need to start with that as our default position. Thus, he states, since in the recent generations when issues have arisen regarding women’s participation, we have regularly paskened that the matter at hand is permissible, when it comes to any issue relating to women’s participation, we should assume that something is permissible unless proven otherwise, and that the threshold for proof is a “very high one” …
Rabbi Katz makes it clear that this does not mean that everything is permitted, but rather that anyone coming to forbid, must prove his position with “incontrovertible proofs” …
Rabbi Katz does not give any supporting evidence to this methodological approach, and I find myself disagreeing with it both in general and in particular. To start with the particular application: to demonstrate that we have consistently ruled permissively regarding women’s issues, Rabbi Katz presents three examples – women learning Torah, a woman reading megillah for women, and a woman saying kaddish. While these are all good examples of cases where there exists a relative consensus amongst the poskim to rule inclusively (at least within the Modern Orthodox community), there are many more issues which remain highly debated and contentious-women reading megillah for men, women receiving aliyot, women’s groups with birkat ha’torah, and more. There is no established precedent regarding how women’s issues in general have been ruled upon. [Emphasis mine]
R. Linzer mentions women saying kaddish as one of the precedential examples of halakha’s shift toward inclusivity. That particular example was not in my list. I mentioned women studying Talmud, reading the megillah on Purim for other women, and making kiddush on Shabbat morning on behalf of the community – not the example of women reciting kaddish in memory of a deceased loved one. R. Linzer is right though: reciting kaddish is another example where our assumption that women are excluded has been proven wrong. Once that example is added to the list, there really aren’t “many more issues which remain highly debated.” We have established that women are equal to men in terms of learning Torah and being active participants in many of the halakhic ritual spaces. The only two arenas in which women are excluded are leading davening and, according to many, reading Torah on behalf of the kahal. By looking at these collectively, one may rightfully say that the classic assumption that halakhah is consistently exclusivist toward women has been proven wrong. (Women’s exclusion from the judicial arena – regarding their testimony and capacity as judges in capital cases is a separate category and should not have much bearing on the conversation about their participation in religious and ritual arenas.)
R. Linzer continues:
Second, I don’t understand how a psak in the question of a woman reading the megillah creates precedent or sheds light on the technical issues involved in another psak, such as aliyot for women. Perhaps the point is that we should be skeptical of the assumption that just because we don’t have the practice for women to do something does not mean that it is forbidden, and that we should approach every issue with a clean slate. I could not agree more, but this does not create the demand for the “high bar” and “incontrovertible proof” to which Rabbi Katz is referring.
The underlying assumption about which we differ is whether there is a meta-consideration that serves as a common denominator for all the questions about women’s roles in the religious and ritual arena. I believe that there is a common meta-thread running through all of them; that when we consider the place of women in a particular case, we also ask the overall question whether halakhah is inclusive or exclusive. Each question, undoubtedly, needs to be addressed on its own merits, but there is also a judicial and philosophical commonality in which the judgment in any one case has philosophical and judicial bearing on a different but similarly orientated case. When we ask if women may do x, we are asking two questions simultaneously: May women perform a particular mitzvah; and is the Torah exclusive or inclusive? With accumulating evidence that the Torah is generally inclusive, one’s orientation shifts accordingly. Nowadays, therefore, when a posek needs to determine the answer to a new question that touches on the inclusive/exclusive distinction, they cannot ignore the cumulative precedential data in favor of inclusion. The cumulative data will, of course, not be determinative, but nevertheless will be highly informative.
R. Linzer then writes:
Turning to the more general point, in my experience, poskim do not begin with saying: I am assuming that something is permitted until it can be incontrovertibly proven otherwise. This is a peculiar structural argument, taken from the world of monetary disputes – המוציא מחברו עליו הראייה – that the one who comes to extract money from another person has the burden of proof. Now, when a certain practice has already been well-established, some might treat it as the default and status quo position, and argue that those who would challenge the practice would have to prove that it is incorrect. But even here, some reasonable argument has to be made to defend the current practice, and outside of such cases, poskim do not state that they need not prove or argue their case or that the burden of proof is on the other side.
It is without doubt that poskim will often start with an intuition of what they think the halakhah should be, or with a particular worldview or orientation to the issue at hand…
I would fully understand an argument – one that Rabbi Katz alludes to later on – that the issues around human dignity and membership in the community should compel a posek to find a heter in these matters wherever possible. Considerations such as these can legitimately push a posek in a certain direction, and can even give added weight to an argument and make us more receptive to forced or questionable readings. But they do not absolve the posek of the need to make a cogent argument, nor allow him or her to put the burden of proof on the other side. [Emphasis mine]
… A particular posek can state that he or she is compelled by a religious mandate to maximize inclusion, and that this drives him or her in all areas of psak even when it entails some changes in the current communal practice. But this is not the same as saying that every psak in this matter is right until proven wrong. [Emphasis mine]
This is an exaggeration of what I said. My claim was pedagogic, not judicial. I was describing the methodological orientation of the posek when they sit down to explore the issue at hand – how they would instinctively pasken. Ultimately, they of course will have to do the research and go where the poskim and texts lead them, but their starting point will be influenced by precedents which then, in turn, will inform their evaluation of the texts and sources they come across. Halakhic texts are sometimes explicit and clear-cut; at other times vague and ambiguous. In cases where the meaning of a text is ambiguous, the posek will rightfully allow external factors, one of which is judicial precedent, to inform their interpretation. If the precedent on similar issues has been stringent, they will be inclined to interpret the ambiguous text in line with the stringent precedent. If the precedent has been to judge leniently, they will be inclined to interpret the ambiguous text accordingly. For our purposes, therefore, if a posek who explores a new frontier in women’s inclusion – considering if women are permitted to do something that previously was assumed to be prohibited – comes across a text that allows for multiple interpretations, they will take into account the accumulated precedential conclusions when determining which plausible read should get preference.
All that is with regard to the specifics of R. Linzer’s critique; but, more importantly, in terms of the overarching claim, we differ significantly. I believe that it is inherently a part of the halakhic process for a posek to approach a question from a “starting point” whereby the posek begins with an assumed opinion about the correct answer: איבעית אימא קרא, איבעית אימא סברא.
קרא: As R. Linzer mentions, there is the premise of המוציא מחברו עליו הראיה, which expresses the notion of judicial passivity. If someone wants to challenge the status quo, the burden of proof is on them. They need to prove definitively that the previously established status has indeed changed; otherwise, halakhah will operate according to the status quo.
Granted, the particular concept of hamotzi me’haveiro is employed primarily in the financial realm, but many poskim believe that it is based on the general operating principle of hazakah. (As a matter of fact, המוציא מחברו עליו הראיה is often interchangeably referred to as חזקת מרא קמא, even though the two concepts are not exactly the same. There are times when one of these concepts is operative but not the other.)
Even if hamotzi me’haveiro per se is not a variable of hazakah, there is no doubt that hazakah is a central tenet of pesika, halakhic adjudication. Hazakah postulates a notion of judicial stasis: we maintain an established halakhic status until incontrovertibly proven otherwise.
While there are a variety of hazakot, all of which point to the premise of judicial passivity, most relevant for our purposes is the concept of hazakah di’dina. Hazakah di’dina, in contrast to other hazakot, is established by adjudication, not by intrinsic factors. If a suspected case was adjudicated in a certain way, halakhah will maintain that status until it is definitively proven otherwise.
The Talmudic source for this unique kind of hazakah is the gemara in Hullin (9a) בהמה בחייה בחזקת איסור עומדת עד שנשחטה, נשחטה בחזקת היתר עומדת עד שיודע לך במה נטרפה: an animal is assumed to be non-kosher until it has been slaughtered properly. Once it has been slaughtered properly, it attains a kosher status which cannot be undone through speculative probabilities, no matter how feasible those probabilities are. This halakhah makes explicit the notion of halakhic passivity. Once we have established a judicial status, stringent or lenient, we hold onto that status even in the presence of plausible possibilities to the contrary. Halakhah puts the onus on those challenging the status quo to prove their claim. This notion is true in every arena – for example, kashrut, terumah and niddah. Things obviously change; the animal may become treif or the mikveh pasul. In some instances there may even be very good reason to assume that the status quo has changed; there are many ways an animal can turn out to be non-kosher or that a mikvah would stop being valid. Nonetheless, halakhah embraces a judicial status quo in the absence of compelling evidence to the contrary.
וענין רגלים לדבר שהענין יגיע עד ללא תכלית אם נלך אחר האפשרויות, אבל העיקר שאם הוחזק מצב מסוים נשאירנו בחזקתו עד שיהא דבר ברור מסלקו מאותה החזקה, וכל דבר שיש בו ספק ואפשרות אחרת הרי אין החזקה מסתקלת
The reason for the concept of raglayim ladavar is because there is a futility in attempting to pursue every possibility. Instead we have a principle that if a certain status was established (הוחזק), we retain that established status (חזקתו) unless an unequivocal counterpoint comes along to unseat it. Probabilities and speculative possibilities are insufficient to put a dent in an established status.
For Rambam, established precedent in halakhah creates a high evidentiary bar, whereby unless one can definitively prove otherwise, we assume that the established halakhic status, the hazakah, remains intact.
While some believe that the notion of determining facts based on hazakah is factual, the dominant voice among the Ahronim is that it is procedural. Hazakah, they believe, does not tell us the facts of the case but instead establishes a behavioral standard. Once we have established a standard, we assume it remains intact until we encounter explicit evidence to the contrary; העמד דבר על חזקתו.
In the context of women’s roles we do not have an established hazakah in the technical sense but we do have something similar. When considering whether women should be excluded or included, the cumulative precedential evidence points in favor of inclusion, making it a hazakah-like starting point and, in turn, putting a high burden of proof on those who advocate exclusion.
סברא: Any objective observer of the history of pesika cannot deny the fact that few poskim approach pesika with a tabula rasa – with no predetermined, intuitive notion of what the halakhah should be.
In my classes on the philosophy of halakhah, I illustrate this with a little quiz. I tell the students about the three major disputes between Rav Moshe Feinstein and Rabbi Joel Teitelbaum, the Satmar Rav: halav stam, artificial insemination, and the necessary height of a mehitzah separating men and women in a prayer space. I share with them that they were both consistent about all three questions, either consistently lenient about all three or consistently stringent, without telling them who was lenient and who was stringent. Their assignment is to figure out on their own who paskened leniently on all three and who was stringent. They always guess correctly that Rav Moshe was lenient and the Satmar Rav was stringent.
The reason they consistently guess correctly is that they associate what they know about these two poskim’s religious biographies with their halakhic orientation. The Satmar Rav, a hasidic rebbe, brought a stringent orientation toward halakhah, while Rav Moshe brought a more practical, lenient outlook. What that means, is that neither of them approached psak with a tabula rasa; they had an intuitive starting point. The Satmar Rav, as a hasid, started out with an assumption that these things are assur and then searched the poskim to confirm his religiously informed intuition and interpreted what he read as affirming that position. Rav Moshe’s starting point was an assumption of leniency which he then found that the poskim confirmed.
This is not to say that Rav Moshe never reached a stringent conclusion or that the Satmar Rav never paskened leniently. They were, of course, honest and open, and ultimately went wherever the texts led them, li’kulah or li’humrah. What this exercise demonstrates, though, is that the halakhic process is driven significantly by the posek’s preexisting orientation which itself is informed, at least in part, by precedents established in response to similar questions. This judicial intuition drives their inquiry and informs their evaluation of the complex and sometimes ambiguous evidence they encounter.
Therefore, in the present case, as we are trying to determine the place of women in one of the final realms from which their participation may be barred, we would be remiss if we completely ignored the hazakah-like default “yes” conclusion that appears repeatedly in similar halakhic inquiries. The numerous precedents pointing to an inclusive answer establish a high probability that the answer will once again be affirmative, placing a high bar before the posek who wants to say otherwise. As cited in the Rambam I mentioned earlier: שהענין יגיע עד ללא תכלית אם נלך אחר האפשרויות; halakhah cannot afford to chase down and refute every speculative possibility. Once it established an orientation toward an issue, it retains that orientation unless there are strong and compelling reasons to abandon that orientation.
[R. Linzer has since clarified to me that he does not disagree with the issue of a posek’s starting point, intuition or worldview. I am happy to hear that we agree on this point. He, however, strongly disagrees with my primary claim that the cumulative precedents on women’s issues creates a high bar in favor of inclusion on any new issue that arises. I believe that the evidence I presented above proves the validity of my claim.]
R. Linzer’s Critique and My Response – Part 2: Halakhah
The above addresses R. Linzer’s critique of my meta-halakhic claims about the halakhic process. I assign robust relevance to the cumulative precedents on questions of women’s inclusion and believe that they carry significant weight when poskim go about making a decision. R. Linzer disagrees.
R. Linzer also challenges some of my halakhic arguments on the issue itself: may a woman lead the kahal in Selihot and the recitation of the 13 Divine Attributes of Mercy? Here are his critiques and my responses.
To briefly recap my main arguments: I claimed that: 1. the simple read of the primary text of the gemara in Rosh HaShanah does not seem to require a minyan for the recitation of the 13 Attributes; 2. Both Tur and Mehaber pasken that one may recite the 13 Attributes without a minyan as long as a liturgical tune is not used; 3. Rav Ovadya says that the non-liturgical recitation still operates as a form of prayer; the people are saying the 13 Attributes theurgically; 4. The theological significance that is assigned traditionally to collective prayer applies to any group of people praying together even if the group does not have the halakhic status of a minyan.
R. Linzer writes:
Rabbi Katz states that it is obvious that the Gemara which describes the power of the recitation of the 13 Divine Attributes gives no weight to a communal recitation, or to the requirement for a שליח ציבור. He quotes a number of Rishonim who assert this point, but this alone does not make this reading objectively correct. An even greater number of Rishonim think that the Gemara is referring specifically to a communal recitation, and the position of these Rishonim should carry at least as much weight in establishing the original meaning of the text. To my mind, the pshat of the text is the reading that Rabbi Katz rejects. The Gemara speaks about God teaching Moses a סדר תפילה, an order of prayer – indicating a liturgical recitation; of “Israel” – a unified entity, not individuals, reciting this order; and that God, as it were, wrapped Godself in a tallit like a shaliach tzibbur. All of these parts of the description indicate that the Gemara is referring to a communal, liturgical recitation with a prayer leader. Rabbi Katz understands the phrase “this order” to refer only to the wearing of a tallit, but the phrase סדר תפילה certain seems to indicate the text of the prayer. In fact, the use of this phrase might be intended to suggest a parallel to Shmoneh Esrei, which was “ordered” – הסדיר – by Shimon HaPakuli, in the proper order, על הסדר (Berakhot 28b). If it refers to more than the text alone, it would most likely refer to something that is central to the halakhic definition and structure of prayer, namely, a minyan and שליח ציבור. The assertion that the central concern of this text is the use of a tallit seems quite out of place.
We differ significantly. Rabbi Linzer, it would seem, encounters texts almost exclusively through the lens of the Rishonim; their read, in his opinion, is the only correct one. On the other hand, I believe that there is significant value in knowing and establishing the plain meaning of the text independent of the way the meforshim understood it. The plain meaning is, of course, not dispositive especially when it is in conflict with the normative read. It, nevertheless, still has some halakhic weight – especially when, as in our case, the normative read is not universal and, as a matter of fact, seems to have caused discomfort for many of the poskim. Their reluctance to embrace it is unavoidable.
I am also surprised by R. Linzer’s assertion that I provide no proof for my read of the primary text, when my proof is rather explicit. Reading the text objectively, no one would assume on their own that the celestial recitation involved a quorum of ten. As I wrote in my own teshuvah: there is absolutely no mention of a minyan in the gemara in Rosh HaShanah that is the basis for this practice nor does such a claim make that much sense: how could there be a minyan in the heavens? R. Linzer provides three proofs that the Gemara indeed describes a communal, liturgical recitation: 1. God, the Gemara says, wrapped Godself in a tallit, like a shaliah tzibbur; 2. It says “Israel,” used as a collective noun; 3. It says ki’seder ha’zeh (in this order). I fail to see how this proves that there was a minyan. These are very common phrases and do not necessarily imply the presence of a halakhic tzibbur.
As a matter of fact, these formulations that R. Linzer marshals to prove that a minyan is required also appear in what is clearly a non-liturgical context, where there is definitely no such requirement.
Pesikta Di’Rav Kahana (Mandelbaum, 5:15), and Yalkut Shimoni (Parshat Bo 191) record an encounter between Moses and God that strongly resembles the encounter in the gemara in Rosh HaShanah that forms the basis for our discussion.
רב חייא בר בא בשם ר’ יוחנ’, נתעטיף הקב”ה בטלית מצוייצת, והעמיד למשה מיכן ולאהרן מיכן, וקרא למיכאל וגבריאל, ועשה אותם כשלוחי החודש ואמר להם, כאיזה צד ראיתם את הלבנה, לפני החמה, לאחר החמה, לצפונה או לדרומה, כמה היא גבוה ולאין היא נוטה, הידי רחב. אמר להם, כסדר הזה שאתם רואים כך יהו בני מעברים את השנה למטן, על ידי זקן ועל ידי עדים ועל ידי טלית מצוייצת
Rav Hiyya bar Bo said in the name of Reb Yohanan: God wrapped Godself in a kosher tallit and made Moses stand on one side and Aaron on the other. Then God called on the archangels, Gabriel and Michael, to serve as witnesses testifying about the birth of the new moon. God interrogated them making certain that they indeed saw the new moon. (The midrash then spells out the specifics of the interrogation). God said to them: My children should emulate this process when designing the calendar. There should be an elder from the court, witnesses, and a kosher tallit.
This midrash, discussing the process of sanctifying the new month, mentions both components that appear in our text regarding the recitation of 13 Attributes; here too God wraps Godself in a tallit and God also commands the Jews to follow this “order.” It never occurred to anyone to suggest that declaring the new moon is a liturgical process that would require a halakhically valid minyan. Instead, what this proves is that God is said to wrap Godself in a tallit whenever modeling ritual practices regardless of whether or not those practices are liturgical. Wearing a tallit simply conveys importance. The fact that our text in Rosh HaShanah adds the wordsכשליח ציבור that God wrapped Godself in the tallit like one who leads the prayers, does not mean that the process differs from that in the Midrash about the new moon. The analogy is a simile providing a clear (kivi’yahol) visual description. When our gemara says that God wrapped Godself in a tallit “like a shaliah tzibbur,” the phrase reflects the gravitas of the moment. God is no more an actual shaliah tzibbur in this context than in the description of sanctifying the new moon.
As for the claim that the gemara in Rosh HaShanah’s use the term “ki’seder” (twice) implies that it is a communal liturgical process: this is far from the only place where Hazal use the phrase כסדר הזה. It appears many times, none of them in a liturgical context. See for example: Kiddushin (21a&b, 77b); Arukhin (33b, twice); Yerushalmi Shevi’it (3:1); Terumot (10:5, twice). Given all these examples, one has to conclude that “ki’seder” simply means what it literarily implies – “order” – and is devoid of any liturgical connotation.
For the question we are discussing, this is significant. As we have seen, some of the Geonim already point out that the simple read of the gemara in Rosh Hashanah does not imply that a minyan is required. In addition, we have the opinion of Tur – that a non-tzibbur reading of the 13 Attributes is a valid option. Further support comes from the fact that an almost-identical formulation appears in a parallel non-liturgical context.
R. Linzer continues:
Rabbi Katz claims, that while the recitation with a minyan is a form of devarim she’bikdusha, when one chooses to recite selichot without a minyan, making it a tfillat yachid, very little is actually lost. He bases this on two arguments:… He argues that according to the Gemara, the recitation of the 13 Divine Attributes is not a liturgical reading, but rather a simple reading of pesukim. His point seems to be that if it is merely a reading of pesukim, there is nothing to be gained from a communal recitation. Rabbi Katz then states that according to the Rishonim and Shulkhan Arukh, the two recitations have the same metaphysical power despite the fact that the recitation of an individual is done in a different way than that of the tzibbur. But neither of these arguments seems correct. If the Rishonim and Shulkhan Arukh treat one recitation as a tfillah bi’tzibbur and one as a tfillat yachid, and hence require the individual to recite it in a different fashion than the tzibbur, then halakhically the tefillah bi’tzibbur has more weight. [Emphasis mine] Rabbi Katz cites Rav Ovadya’s ruling that an individual’s recitation of the verses of the 13 Divine Attributes is done for the purpose of tefillah and thus the individual is permitted to stop the recitation at נקה, in the middle of the verse. This is despite the principle that כל פסוק דלא פסקיה משה אנן לא פסקינן, we may not recite only part of a verse. This, for Rabbi Katz, is evidence that the individual’s recitation is of similar weight to the recitation bi’tzibbur.
But this ruling is not relevant to the matter at hand. Rav Ovadyah is merely stating that if a verse is recited as a tefillah, the rule of not breaking it in half does not apply. Similarly, Rav Ovadyah rules that when one is reading a verse quoted in the Gemara, she does not have to read the whole verse since this is not a standard reading of a biblical verse (Yabia Omer, OH, 3:24.6)
I could not disagree more. This seems to be missing the crux of Rav Ovadya’s point. R. Linzer reads it through a jurisprudential lens completely ignoring its theological core. When Rav Ovadya says that individuals who recite the Attributes without a liturgical tune nevertheless recite them “as tefillah,” he means that the Attributes are being said theurgically and that they indeed function that way. In fact, Rav Ovadya says so explicitly. He writes: מטרתו להזכיר מדות הרחמים דרך תפילה ובקשה – people reciting the Attributes “דרך קריאה” are engaged in prayer. The recitation is liturgical and that is how it functions; otherwise, the distinction between דרך קריאה and דרך תפלה makes no sense. One is never allowed to recite an incomplete pasuk and the fact that it is being recited in a tefillah context should not make any difference. The exception here (where we stop the recitation with ונקה) instead is due to the nature of the recitation: we are actually not reciting a pasuk but rather using the words to “make a prayer out of them” as Nishmat Adam (klal 5, se’if 2) explains that we sometimes recite incomplete verses in our prayers, because אנו עושים מחצי פסוק זה תפילה.”
The nuanced formulation of these sources makes it clear that Rav Ovadya is justifying the breaking of verses on the basis of their being recited as a prayer, pleading and beseeching God. Consequently, when people choose to recite the Attributes in this fashion, they are not compromising very much, as they are still achieving their theurgical goal.
R. Linzer then writes:
Another argument that Rabbi Katz advances is that there is no metaphysical advantage to halakhic tfillat ha’tzibbur over a prayer recited by an equally large gathering of people who do not constitute a minyan. I do not understand the basis for such an argument. There is no question that from a halakhic perspective, tfillat ha’tzibbur has a special status and is the preferable mode of prayer. [Emphasis mine]
My basis for this argument is both textual and theological. One of the earliest formulations of the rabbinic notion that tefillat tzibbur is superior to the tefillah of an individual is Torat Kohanim (Bi’hukotai, parshah 1) mentioned in my teshuvah, which talks about doing mitzvot collectively. Collective performance of mitzvot does not give the group unique legal status; rather, they are a number of individuals performing a mitzvah together. Their coming together, according to Torat Kohanim, has theological significance even without a change in halakhic status. Davening should be no different. If a group of people pray together, their prayers have the additional power assigned to collective prayer regardless of whether their group constitutes a halakhically valid quorum.
I also differ with R. Linzer theologically on this question. If it is indeed true that the tefillah of the tzibbur is more successful because of the power of the tzibbur to implore God, why would that power be contingent on the tzibbur’s halakhic status? Is it theologically feasible to argue that God is more responsive to ten men because they constitute a halakhic quorum than to a quorum made up of men and women since their collective is halakhically irrelevant? Clearly, that cannot be the case. If God indeed responds more readily to collective prayer, the gender makeup of that collective is immaterial; God’s benevolence does not discriminate.
It is therefore clear to me that the preference shown by poskim for a halakhically sanctioned prayer of ten men is not because of its theurgical superiority, but because that is the halakhic ideal; ten men constitute halakhah’s notion of a tzibbur for devarim she’bikdushah. Halakhah, based on certain hermeneutical inferences, requires devarim she’bikedushah to be said in the presence of ten men. Selihot and the recitation of the 13 Attributes is not a davar she’bikedushah since, as Mehaber paskens, a single person is also allowed to recite them as long as the tune is changed. Consequently, when a woman serves as the shlihat tzibbur for Selihot nothing is lost halakhically or theologically. Collective prayer does not derive its theological oomph from its halakhic status. Any collective that prays together, regardless of its gender makeup, can effectuate an eit ratzon. (For a comprehensive discussion of this premise see my teshuvah here.)
The role of women in the religious arena continues to expand with each generation building on the previous one. We first explored the halakhic parameters of a woman’s role in talmud Torah then we moved to the liturgical arena. These are important questions with no room for error. Excluding women when halakhah indeed includes them is discriminatory, while including them when halakhah excludes them is halakhically indefensible. The posek, consequently, walks constantly on the precipice knowing that they cannot err in either direction. They cannot afford to be erroneously lenient or unnecessarily stringent.
My research into the subject of women serving as representatives of the tzibbur for Selihot and the recitation of the 13 Attributes of Mercy has led me to the conclusion that, as with many other questions of this kind, women are not excluded. Women too may take a leadership role here as long as they do not recite the 13 Attributes in the established liturgical tune. In my opinion, the recitation retains its theurgical power when done in a collective even one that is not a halakhic tzibbur.
 A close reading of the various poskim on the subject suggests that Tur is not the only one who is uncomfortable with the requirement of a minyan for the recitation of the Attributes. See for example, Betzail Ha’hokhmah vol. 5 siman 61, and Yabi’a Omer vol. 5, OH 7; Yehaveh Da’at, vol. 1, 47
 See Igrot Moshe YD vol. 3, at the end of siman 21
 See Ketzot Ha’hoshen HM 34:5, Netivot Ha’mishpat 34:15, Kuntres Ha’sfeikot 1:5, Hatam Sofer HM 67, etc.
 See Maharit commentary to Ketubot 76b s.v. Rav Ashi, She’eilot U’tshuvot Maharit Vol. 1 siman 41, and HM siman 20, R. Chaim Pinchas Sheinberg’s Agra D’shmata, aha’ar 1, ch. 15, and Encyclopedia Talmudit, vol. 14, entry Hezkat Mamon.
 See Rosh Efraim klal hazakah, siman 1, Sha’arei Torah klal 5-klalei hazakah, section 4.
 Imrei Bina, Laws of shehitah, p. 348 in the Mishnat R. Eliezer edition
 Commentary on the Mishnah,(Kapah Edition) Nazir 9:2; See also Tosafot Yom Tov on that mishnah; Encyclopedia Talmudit, entry on hazakah (2) Dimei’ikara fn 29
 See for example Tosafot Ketubot 26b s.v. anan, Shev Shmat’ta ch 13 s.v. ve’ein hasheini
 See for example: Hemdat Shlomo vol. 1, intro. (פתח השער) s.v. ve’amarti; She’eilot U’Tshuvot Hemdat Shlomo YD siman 4, Shev Shmat’ta essay 7 ch. 2, She’eilot U’Tshuvot R. Akiva Eiger siman 137, Sha’arei Yashar essay on hazakot, ch. 2, Maharik quoted in Kuntresei Shiurim Bava Metzia 8:3. See also the discussion in Kovetz Shiurim Ketubot 74a.
 An earlier source for this distinction is Magen Avraham’s introduction to OH 282. When addressing a different but related problem, he says: כיון דקורא אותם דרך תחינה ובקשה שרי. He, like the Nishmat Adam, focuses on content, not context. When verses are recited liturgically, they are not bound by the restrictions imposed on the regular Biblical reader. For further elaboration see Yabia Omer vol. 10 siman 12.
 Similarly, when R. Yosef Hayim of Bagdad (Tora Li’Shma 44) explains why one is allowed to recite incomplete verses during prayers he writes: כל שמזכיר הפסוק בדרך תחנונים ותפילה … לית לן בה, once again emphasizing content, not context. The prohibition does not apply if the verse is recited liturgically, as a form of prayer and supplication.