In light of the recent arrest of three women at the Kotel for the “crime” of singing aloud and wearing a tallit, we are republishing our responsum from February 2010. – David Golinkin
Question: Since the arrest of Nofrat Frenkel in November 2009 for wearing atallit and trying to read the Torah at the Kotel, there has been much discussion of the Women at the Wall and the right of women to wear a talit in the women’s section at the Kotel( Matthew Wagner, The Jerusalem Post, November 18, 2009; Peretz Rodman, ynet, November 22, 2009; Nofrat Frenkel, Forward.com, November 24, 2009; Gil Troy, Jpost.com, November 26, 2009; Isabel Kershner, The New York Times, December 21, 2009; Ron Kampeas, JTA, December 28, 2009; Editorial, Forward, January 15, 2010; Ben Harris, The Jerusalem Post, January 15, 2010, p. 8; Josh Nathan-Kazis, Forward, February 5, 2010). There has not been enough discussion, however, of a much greater problem: In recent years, the Rabbi of the Kotel has expanded the synagogue section of the Kotel plaza and the Kotel Guard now patrol the entire Kotel plaza. They have posted large signs warning people to dress modestly. They tell people how to dress and what to wear, they tell women and girls not to sing, they separate girls from boys and they tell Christians to remove the crosses from their necks. The result is that non-Orthodox Jews have begun to avoid the Kotel entirely and many military ceremonies have been moved to other locations. Indeed, a recent poll (December 23, 2009) shows that 90% of Israelis want less gender-separation at the Kotel (Haim Shapiro, The Jerusalem Post, August 14, 2001; Amiram Barkat, Haaretz.com, December 16, 2003; Andrew Sacks, Forward, January 9, 2004; Noga Tarnopolsky, The Jerusalem Post Magazine, January 30, 2004, pp. 18-19; Etgar Lefkovits, The Jerusalem Post, February 11, 2004, p. 4; Etgar Lefkovits, The Jerusalem Post, October 17, 2005, p. 3; Etgar Lefkovits, The Jerusalem Post, March 10, 2006, pp. 1, 7; Jorg Luyken, The Jerusalem Post, Succot 5768, September 26, 2007, pp. 18-21; Haviv Rettig Gur, The Jerusalem Post, September 25, 2009; Peggy Cidor, In Jerusalem, December 11, 2009, pp. 10-13; Abe Selig,The Jerusalem Post, December 14, 2009; Jamie Romm, The Jerusalem Post, December 23, 2009; Yizhar Hess, ynet, January 3, 2010; Rabbi Daniel Sperber, nrg, January 3, 2010).
Therefore, please answer the following questions:
I) Was the area near the Kotel considered a synagogue before 1948 and did it have a mehitzah?
II) Why is the Ministry of Religion in charge of the entire Kotel plaza?
III) What is the halakhic status, as opposed to the legal status, of the Kotel Plaza; is it really a synagogue?
IV) How should the State of Israel deal with the fact that the entire Kotel plaza is slowly but surely becoming a Haredi synagogue?
I) There was no synagogue at the Kotel until 1948 and men prayed beside women without any mehitzah
This fact was stressed by Professor Shmuel Shiloin his halakhic article about the Women at the Wall in 1997 (Shiloh, p. 163) and by Dr. Doron Bar in his recent book about the Jewish Holy Places in Israel from 1948-1968 (Bar, p. 212). Indeed, A.M. Luncz, Y.Y. Yehudah and Mordechai Hacohen have already assembled most of the sources about prayers at the Kotel from 1520 – when the Kotel became a popular Jewish prayer spot – to 1967. They did not deal with our topic directly, but it is clear from the testimony of Luncz and Yehudah who lived in Jerusalem from 1869-1918 and 1863-1941 respectively and from numerous photographs and paintings, that women visited the Kotel on a regular basis, that women frequently made up the majority of worshippers at the Kotel, and that there was no permanent mehitzah next to the Kotel until 1948 when the Kotel and the Old City were captured by the Jordanians.
Luncz testified in 1882:
1. “Every Friday immediately after noon multitudes of our brethren – men, women and children – flock to the Kotel, old men and women leaning on their canes (Luncz, 1882, pp. 30-31).
2. He goes on to describe groups of men praying on the right and left, while “in the middle, women stand with white shawls covering their backs, their lips expressing prayers and praises to the living God” (ibid., p. 32). In other words, he is describing men praying on the left and right with a group of women praying in the middle without a mehitzah.
Luncz adds many details in his extensive article on the Kotel from 1913:
3. “On Fridays, and especially on the Friday before a New Moon is blessed, the alley before the Kotel was filled with men, women and children beginning at noon.” (Luncz, 1913, p. 32)
4. “But on the 9th of Av…. this place [= the area next to the Kotel] was full from the beginning of the night until the morrow with many men and women…. On Tisha B’av morning, the majority of the alley was filled with mekonenot [=women mourners] and only a few men came to recite Kinot [= Tisha B’av elegies] as individuals” (ibid., p. 33).
5. “Also in this century [= the early twentieth], when many of our brethren from all the Diaspora communities made aliyah and settled in the Holy City, it happens that the alley before the Kotel is totally filled with men, women and children…” (ibid., p. 46).
Similar testimony is found in Yehudah’s article from 1929:
6. “In 1841, my great-grandmother the Rebbetzin used to go to the Kotel in the summer and winter every Friday afternoon and remain there until candle lighting time to read the entire book of Psalms and the Song of Songs” (Yehudah, p. 141).
7. “When I was very young, until age five (ca. 1868) my mother z”l and my grandmother z”l used to take me to the Kotel; sometimes only women were there” (ibid.)
8. “Many times on other days of the year… I would find men and women praying and reading” (ibid., p.142).
9. “I remember when I was very young that Siman-Tov Meyuhass used to sit at the Kotel with a table and chair in front of him… and if a distinguished man or woman would come, he would give them a chair to sit on … ” (ibid.)
10. “Poor Sefardic rabbis would sit there [= at the Kotel] and read in La’az [= Ladino] before elderly men and women who sat in a circle in rows to hear from the rabbi Mei’am Lo’ez [by R. Yaakov Kuli], Reishit Hokhmah and other books of this type…” (ibid.)
11. Luncz (1913, p. 51) explains that a few years after 1880 aman began “to bring benches and small chairs and then someone came and set up a folding mehitzah to separate the men from the women.” It is clear that Rabbi Luncz himself saw this as a big innovation and he also saw this as the reason for a long-term fight which developed between the Jews and the Muslims which led to decrees against the Jews at the Kotel in 1912.
12. On Erev Pesah 1913, Dr. Yosef Klausner visited the Kotel for the first time immediately after making Aliyah. He testified “that the Jews and Jewesses approach the Kotel and kiss every single stone” (Hacohen, p. 49).
In the nineteenth century, non-Jewish visitors to the Kotel also described men and women praying side by side (Hacohen, p. 53):
13. R.H. Hershel, an apostate, found Jewish men and women from Poland and Germany praying next to him at the Kotel in 1843.
14. V.G. Woodcock described old men and women praying there in 1848.
15. In 1855,William Price found a large crowd of men and women of all ages next to the Kotel.
16. Gregory M. Wortabt also described Jews and Jewesses praying and crying there in 1855.
Furthermore, all of the testimony above is confirmed by manypaintings and photographs of men and women praying at the Kotel side by side as individuals or in small groups or in mixed groups:
1. An etching by William Henry Bartlett from 1842 or 1844 shows men and women side by side in two clusters near the Kotel (Ben Dov, p. 102; Druk; Hacohen, p. 27; Naor, p. 176.)
2. A painting from 1854 shows men and women sitting in clusters or standing individually at the Kotel (Vilnay, p. 308).
3. A photograph by Felix Bonfils in 1870 became the basis of an etching by Taylorin the 19th century. It shows men standing at the Kotel and women seated right next to them (Ben Dov, p. 67; The Jerusalem Post, June 21, 2002, p. B14)
4. A painting by Hunter from the 19th century, which was apparently based on a photograph, shows a row of men and three women praying fervently side by side at the Kotel (Ben Dov, p. 110)
5. Four colored postcards from the late nineteenth-early twentieth century show men and women praying as individuals or in clusters at the Kotel. In one, they are almost touching each other and in a second they are lined up at the Kotel – women, men and women (Ben Dov, after p. 96).
6. A photograph from 1900 by Kilkor Kworkian, an Armenian photographer who lived in the Old City, shows many women and a few men praying at the Kotel. (In Jerusalem, January 14, 2000, p. 7)
7. A postcard from the early 20th century based on a painting by J. L. Jerome shows individual men and women praying at the Kotel and one man and woman are standing right next to each other (Ben Dov, p. 103)
8. In 1913, Ephraim Lilien painted clusters of men and women praying at the Kotel (Ben Dov, p. 201; Hacohen, p. 18)
9. An undated photograph from a German travelogue shows many women and a few men praying side by side at the Kotel (Ben Dov, p. 75)
10. Another undated picture shows a woman, a man and four women praying near each other at the Kotel while two Turks stand guard (Ben Dov, p. 115)
11. An undated photograph shows three women and one Haredi man praying near each other at the Kotel (Hacohen, p. 59)
I have found only two photographs of the Kotel which show men and women separated by a mehitzah. One of them is attributed to a Christian book from 1904 (Druk) and the other, taken from an Arabic source, shows a portable mehitzah between the men and the women (Ben Dov, p. 130; this photo may be from 1928 – see below).
Indeed, the mehitzah at the Kotel on Yom Kippur became a constant bone of contention between the Jews, Muslims and British. This tension reached its climax in 1928-1929. On September 23, 1928, the Jews set up a temporary mehitzah at the Kotel for Yom Kippur. The next morning, it was removed by Kitroach, the Deputy Governor of Jerusalem. On August 15, 1929, on Tisha B’av, the Betar Youth Movement organized a protest demonstration at the Kotel. The Mufti then organized counter-demonstrations at the Kotel and on the Temple Mount and spread the lie that the Jews were desecrating the Muslim holy sites. On August 23, the Arabs began to riot and subsequently murdered 133 Jews and injured 340 in Jerusalem, Hebron, Safed and elsewhere. The British and the League of Nations then sent commissions to Palestine. The latter Commission decided in 1931 to maintain the status quo at the Kotel. The Jews could pray at the Kotel, read from the Torah on Rosh Hashanah, Yom Kippur, the last day of Pesah and Sukkot and on Shavuot and bring in specific items of furniture such as the Torah reading table. They were not allowed to blow the shofar. (Ben Dov, pp. 128-135; Hacohen, pp. 59-63). Thus, ironically, the attempt to erect a mehitzah at the Kotel on Yom Kippur 1928 led indirectly to the Arab pogroms of August 1929.
It is clear from the above that from 1840 (and probably earlier) and until 1948 when the Old City was captured by Jordan, the narrow alley in front of the Kotel was a place of individual prayer and study for men and women, but not a synagogue. Men and women prayed as individuals or sat in small groups and frequently the majority of the people praying were women. After 1880, some men began to erect portable mehitzot but Rabbi A.M Luncz viewed this as a big innovation which caused constant tension with the Muslims until World War I. After that, the mehitzah at the Kotel became acausa belli between nationalist Jews, the Mufti and the British.
II) Why is the Ministry of Religion in Charge of the Kotel?
In his recent book about Jewish holy places in Eretz Yisrael from 1948-1968, Dr. Doron Bar, Senior Lecturerat the Schechter Instittues’s Land of Israel Studies program, devoted a chapter (pp. 205-219) to the Kotel after the Six Day War. In June 1967, the Kotel was under the jurisdiction of Rabbi Goren and the IDF Chaplains. A few days after the war, bulldozers came and cleared away many houses near the Kotel to form a large plaza. At that time, Prime Minister Levi Eshkol and Defense Minister Moshe Dayan wanted to give the responsibility for all the religious and historical sites in Judea and Samaria including the Kotel to the National Parks Authority. Dr. Zerah Warhaftig, the Minister of Religion, was adamantly opposed and by June 26th, the Kotel was under the jurisdiction of the Ministry of Religion. At the same time, the Knesset passed the “Protection of Holy Places Law 5727,1967” which appointed the Chief Rabbis of Israel to set the rules and regulations of the Kotel.
Rabbi Shlomo Goren, the Chief Rabbi of the IDF, officially handed over the Kotel to Zerah Warhaftig on July 3, 1967. Until that date, there was no mehitzah at the newly cleared Kotel Plaza. By July 19, 1967, the Ministry of Religion had erected a mehitzah and the men’s section was four times larger than the women’s section. This led to a public outcry and Prime Minister Levi Eshkol called the area with a mehitzah mikhlaot [=pens or prisons]. Orthodox Jews and the Ministry of Religion reacted strongly and rejected the claims of those who said that the Kotel should be given to the National Parks Authority. Others said that the Kotel is only a retaining wall of the Temple and therefore a secular, historical remnant. The Ministry of Religion later set up Mishmar Hakotel, the Kotel Guard, in April 1968, whose members wore special uniforms.
By November 1967, two meters of earth had been dug up near the Kotel which created a plaza with two levels. The lower level was used for prayer and the upper level was already used for military swearing-in ceremonies by September,1967. In early 1968, a struggle developed between the Ministry of Religion and the Chief Rabbinate vs. Prof. Benjamin Mazar and the Department of Antiquities who began to excavate the southwest corner of the Kotel. The Chief Rabbinate claimed that the Kotel and the entire area surrounding the Temple Mount are holy and may not be viewed as historical or archaeological sites. In the end, they reached a compromise: Mazar may excavate the southwest corner but not the area of the Kotel plaza.
Thus, in June 1967, many thought that the Kotel plaza should be a national park. Zerah Warhaftig won the battle and since then the Kotel has been under the jurisdiction of the Ministry of Religion and the Chief Rabbinate. Even so, the 1968 episode regarding the archaeological excavations shows that the power of the latter authorities was not absolute and they were only left in control of the Kotel Plaza itself.
III) What is the halakhic status, as opposed to the legal status, of the Kotel Plaza; is it really a synagogue?
A passage in the Talmud Yerushalmi (Megillah 4:1, ed. Vilna 23a) seems to indicate that you can take an existing courtyard and dedicate it as a synagogue (See Or Zarua, Part II, end of paragraph 385; Rosh to Megillah, Chapter 4, paragraph 1, ed. Vilna, fol. 37a, which was then quoted by the Bet Yosef to Tur Orah Hayyim 153. Also cf. Ber Ratner,Ahavat Tziyon V’yerushalayim: Megillah, Vilna, 1912, p. 62).
On the other hand, the Rambam rules (Hilkhot Tefillah 11:21) that:
The plaza of a city which is used for prayer on public fast days and the like is not sacred because it is temporary and was not fixed for prayer. And so too houses and courtyards which the people gather in for prayer are not sacred, because they were not specified only for prayer; rather they are for temporary prayer like a person who prays in his house.
The first half of this law is based on the opinion of the Sages inMegillah 26a, but the second half seems to be the Rambam’s own opinion. This law was then codified in the Tur and Shulhan Arukh Orah Hayyim 154 and in other codes of Jewish law (Bet Yosef, Knesset Hagedolah, Kaf Hahayyim and Mishnah Berurah ad loc.).
These two laws teach us that:
Therefore, according to Jewish law, there is a clear halakhic difference between the lower prayer area next to the Kotel which has been used as a synagogue on a daily basis since July 1967 and the much larger upper plaza which is only used for prayer on Shavuot or Tisha B’av when 50,000 to 100,000 people come to the Kotel to pray. In other words, the lower prayer area next to the Kotel is a courtyard which was sanctified as a synagogue, while the large upper plaza is a temporary place of prayer which does nothave the sanctity of a synagogue.
Indeed, there are two ways of proving that the Chief Rabbinate and other prominent Orthodox rabbis also differentiate between these two areas:
1. Rabbi Yitzhak Yosef, the son of former Sefardic Chief Rabbi Ovadia Yosef, wrote in his Yalkut Yosef in 1990 (Vol. 2, pp. 276-277):
It is forbidden to eat and drink near the Kotel, in the place which was sanctified by tens of thousands of Jews for prayer… and if one does a circumcision near the Kotel, it is good not to distribute candy and confections there, only outside the area near the Kotel.
In note 11, he explains that it is forbidden to eat and drink near the Kotel according to Megillah 28a and Shulhan Arukh Orah Hayyim151:1 that it is forbidden to eat and drink in a synagogue. In other words, in the opinion of Rabbi Yitzhak Yosef, who wrote his book “with the careful editing and agreement” of his father (according to the title page), the area near the Kotel is a synagogue and it is therefore forbidden to eat and drink there. But “outside the area near the Kotel”, i.e. in the large upper plaza, it is permissible to eat and drink because it is not a synagogue.
2. Secondly, it is clear from the actual behavior of the Chief Rabbinate, Rabbi of the Kotel and Kotel Guard from 1967 until just a few years ago that in practice it did differentiate between the lower area near the Kotel which it considered a synagogue and the large upper plaza which it did not:
IN THE LOWER PRAYER AREA
a. mehitzah, chairs, torah reading tables
b. the Kotel Guard demands wearing a kippah and modest dress
c. no cars and police cars
d. no military ceremonies.
IN THE UPPER PLAZA
a. no mehitzah, chairs or tables
b. no Kotel Guard
c. cars and police cars
d. military ceremonies.
It is therefore clear that even if someone claims that the established custom of the Kotel was to pray with a mehitzah – a claim we have disproved in paragraph I above – the large upper plaza is not a synagogue according to Jewish law and according to the practices of the Chief Rabbinate itself for about 35 years after the Six Day War. Therefore, the Chief Rabbinate has no halakhic right to demand certain types of dress or behavior in that area.
IV) How should the State of Israel deal with the fact that the entire Kotel plaza is slowly becoming a Haredi synagogue?
Thus far we have seen that:
If this plan is adopted, both Orthodox and non-Orthodox Jews will be able to continue to pray in their respective areas of the Kotel and the IDF and all Jews can continue to hold ceremonies and public events in the upper plaza of the Kotel.
In this way the Kotel can become a source of peace which unites the Jewish people as envisioned in our ancient sources (seeBerakhot 30a and parallels).
19 Shevat 5770
Auerbach – Jacob Auerbach, Encyclopaedia Judaica, Vol. 16, cols. 467-472, s.v. Western Wall
Bar – Doron Bar, L’kadesh Eretz: Hamekomot Hakedoshim Hayehudiyim Bimdinat Yisrael,Jerusalem, 2007, pp. 205-219
Ben-Dov – Meir Ben-Dov, Mordechai Naor and Ze’ev Aner, The Western Wall (Hakotel),Jerusalem and Bat Yam, 1983
Berkowitz – Shmuel Berkowitz, The Temple Mount and the Western Wall in Israeli Law,Jerusalem, 2003
Druk – Moshe Akiva Druk and Tzvi Shteiner, Albom Hakotel Hamaaravi,Jerusalem, 1969
Hacohen – Rabbi Mordechai Hacohen, Hakotel Hamaaravi: Mekorot U’mesorot,Jerusalem, 1967
Luncz 1882 – Avraham Moshe Luncz, Yerushalayim 1 (1882), pp. 30-33
Luncz 1913 – Avraham Moshe Luncz, Yerushalayim 10 (1913), pp. 1-58
Naor – Mordechai Naor, Yerushalayim Ir Va’em: Midavid Hamelekh Ad Yameinu,Jerusalem, 1995
Shiloh – Shmuel Shiloh, Tehumin 17 (5757), p. 163
Vilnay – Zeev Vilnay, Yerushalayim Birat Yisrael: Ha’ir Ha’atikah I, fifth edition,Jerusalem, 1970, pp. 308-327
Yehudah – Yitzhak Yehezkel Yehudah, “Kotel Maaravi”, Tziyon 3 (1929), pp. 95-163
Yosef – Rabbi Yitzhak Yosef, Yalkut Yosef, Vol. 2,Jerusalem, 1990, pp. 276-277
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.