Tefillin I: Exemption

  • Deracheha Staff; Laurie Novick, Director
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● Why should we discuss this?

 

On Deracheha, we are committed to exploring questions concerning women and mitzva observance as comprehensively as possible.

 

We will see that, for a few reasons, the many halachic authorities prohibit women from fulfilling the mitzva of tefillin. Additionally, and perhaps largely as a result of these prohibitions, most Orthodox women seem to show little to no interest in fulfilling the mitzva.

 
Still, there are some religiously-observant women who are interested in exploring whether it is permissible to observe this mitzva voluntarily, the same way a woman may choose to perform other mitzvot from which she is exempt.
 
Even if a woman has no personal interest in performing the mitzva of tefillin, she should understand its significance and why women have not traditionally observed it. Learning about the mitzva can also give her insight into other women who might feel differently, as well as greater understanding of rabbinic responses to those women.
 
Additionally, this issue has made waves within recent years. In the winter of 5774, the principal of a coeducational modern Orthodox high school in New York permitted two female students to lay tefillin at the school's daily women's prayer group. A yeshiva high school newspaper picked up the story, and it quickly made the rounds of the Jewish internet, spawning articles, opinion pieces, and blogposts that debated the propriety of the principal's decision and of women laying tefillin in general. The principal soon clarified that the two girls in question came from Conservative homes and had been laying tefillin daily at home since their bat mitzvas. That clarification contextualized his decision, but did little to quell debate.
 
A typical headline, from "The Times of Israel," January 21 of that year, reads: "Orthodox Girls Fight for the Right to Don Tefillin." This media treatment (and others like it) views the question of women wearing tefillin through a civil rights prism: the suggestion is that oppressed women with spiritual aspirations confront a misogynistic, or at least short-sighted, Orthodox rabbinate.
 
This narrative is simplistic. From a halachic perspective, mitzvot are religious obligations, not civil rights. Both spiritual aspirations and rabbinic rulings must be attentive to Halacha.
 
Here we look at halachic sources and their interaction with traditional practice to investigate the question of women laying tefillin in halachic terms.
 

Background: The Mitzva of Tefillin

 
In the Torah Where does this mitzva come from? In four passages, the Torah commands placing a sign on the hand and a remembrance between the eyes, known as laying (hanachat) tefillin. [1] The first two commands, Shemot 13:1-10 and 11-16, are given in Egypt, just before the exodus. Tefillin appear at the conclusion of each portion, linked both with Torah as a whole and with the imperative to remember the deliverance from Egypt:
 
Shemot 13:9-10
It shall be for a sign for you on your hand and for a remembrance between your eyes in order that God's Torah be in your mouth because God took you out from Egypt with a strong hand. You shall keep this ordinance in its appointed time from year to year.
 
Shemot 13:16
It shall be for a sign on your hand and for totafot[2] between your eyes because God took us out from Egypt with a strong hand.
 
Tefillin remind us of the exodus, a critical moment in our national relationship with God.
 
The third and fourth portions, Devarim 6:4-9 and 11:13-21, familiar to us as sections of Shema, command us to proclaim God's oneness and to love Him, to internalize, teach, and speak of these words (at minimum through the recitation of Shema), and, finally, to incorporate them into our tefillin and mezuzot (doorposts):
 
Devarim 6:8
You shall bind them for a sign on your hand and they shall be for totafot between your eyes.
 
Devarim 11:18
You shall place these words of Mine on your hearts and on your souls and bind them for a sign on your hand and they shall be totafot between your eyes.
 
The passages in Devarim emphasize our personal responsibility to internalize God's message and follow mitzvot. Tefillin provide a concrete way of demonstrating commitment to God.
 
Construction Tefillin bind the messages of national and personal connection and commitment to God directly to the flesh. Indeed, nothing should separate between the tefillin compartments (batim) and straps (retzu’ot) and the body, as the verse says "al yadecha," directly on the hand.[3]
 
Laying the tefilla shel rosh (of the head) and laying the tefilla shel yad (of the hand) are two distinct mitzvot.[4] Each set of tefillin contains all four portions listed above. On the head, the portions are split up into four smaller scrolls, placed into four distinct batim (compartments), whereas on the hand they are all written on the same scroll and placed in a single compartment.[5] Predominant custom, in accordance with the viewpoint of Rashi, places the portions in order of their appearance in the Torah. Some supplement this custom by wearing tefillin with the portions in a different order, in accordance with the viewpoint of Rabbeinu Tam.[6]
 
The shel yad encircles the non-dominant hand, while the dominant hand performs the command to tie the tefillin.[7]
 
Timing Tefillin were originally worn all day long.[8] When they are worn for a more limited time, as today, they should at least be in place for the recitation of Shema. Why? The passages of Shema include the mitzva of tefillin. By reciting Shema without wearing tefillin, one would bear false witness: proclaiming a mitzva while shirking it.[9]
 

Women's Exemption

 
The mishna in Berachot states that women are exempt from two mitzvot:  tefillin and the recitation of Shema. However, the mishna doesn’t explain the exemption:
 
Mishna Berachot 3:3
Women and bondsmen and minors—are exempt from recitation of Shema and from tefillin.
 
Let's look at the two explanations given in traditional sources for women's exemption:
 
I. Time-Bound Women are generally exempt from positive time-bound mitzvot (see here for a detailed discussion of this rule). The Tosefta lists several such mitzvot, including tefillin:
 
Tosefta Kiddushin 1:8
What is a positive time-bound commandment? Such as sukka and lulav and tefillin.
 
Sukka and lulav are clearly time-bound: they are performed only on Sukkot. How are tefillin time-bound? The talmud addresses this question:
 
Shabbat and festival days have the status of a sign, ot,[10] making the additional ot of tefillin superfluous.[11] Since tefillin are worn only on workdays, they are time-bound, and women are exempt.[12]
 
In the gemara in Eiruvin, Rabbi Yehuda and Rabbi Meir permit a woman to wear tefillin if there is an urgent need to transport them on Shabbat. The gemara deduces that Rabbi Yehuda and Rabbi Meir dispute the status of tefillin as time-bound, and thus they believe women are obligated in tefillin.[13] However, that position contradicts the mishna in Berachot and is not accepted as Halacha.
 
II. Learning Torah As we have seen, the Tosefta in Kiddushin and the gemara in Eiruvin classify tefillin as a positive time-bound mitzva.
 
The gemara in Kiddushin goes further and defines tefillin as the archetypal mitzva from which to derive women’s overall exemption from positive time-bound mitzvot. In so doing, it provides an additional explanation for the exemption:
 
Kiddushin 34a
Whence do we know [that women are exempt from positive time-bound mitzvot]? Learn from tefillin: just as women are exempt from tefillin, so too women are exempt from all positive time-bound commandments. And learn tefillin from Talmud Torah: just as women are exempt from Talmud Torah, so too women are exempt from tefillin. Let's compare tefillin to mezuza [in which women are obligated]! Tefillin is juxtaposed with Talmud Torah, both in the first and second portion [of ShemaDevarim 6:7-8 and 11:18-19]; tefillin is not juxtaposed with mezuza in the second portion [of ShemaDevarim 11:19 comes between them].
 
The tefillin passages in Devarim stress the connection between tefillin and the mitzva of learning Torah. These passages link tefillin more closely to the formal mitzva of Torah study, from which women are exempt (more here), than to mezuza, which applies equally to everyone's dwellings. According to this passage, the strong link between learning Torah and tefillin leads to women’s exemption from tefillin.[14]
 

● Now that learning Torah from texts is more open to women, should the exemption from tefillin remain in place?

 
Women’s exemption from laying tefillin is based on the exemption of women from the formal mitzva of learning Torah, but women learn more Torah texts nowadays than ever before. Some modern rabbinic voices even tell us that text learning has become an obligatory form of avodat Hashem for women. (See more here.) Does this have any effect on women's relationship to the mitzva of tefillin?
 
Although there are many reasons why a woman may be obligated to learn Torah, women's exemption from the formal mitzva of Talmud Torah remains in place. It is that formal exemption that leads to the exemption from the mitzva of tefillin. For example, women have always been obligated in learning practical Halacha, which can be described as a form of learning Torah. That did not change the original formulation of exemption from tefillin. So too, increased imperatives for women to learn Torah and the real halachic significance of women fulfilling the mitzva of learning Torah through text study do not change the exemption from tefillin.
 
That being said, we might expect communities in which women's text study is seen as an imperative to encourage women to fulfill the mitzva of tefillin voluntarily. Why don't they?
As compelling as the idea may be for a woman who learns Torah to bind it to her flesh, there are other halachic factors at stake that militate against voluntary performance of the mitzva of tefillin. We discuss these in the next installments of this series. If there were no other halachic impediment, we imagine that many women would take an interest in fulfilling the mitzva of tefillin and many more religious women throughout history would have done so, creating a more substantial precedent than the single example of Michal (see below). But those halachic impediments make and have made a difference to the majority of women who are most devoted to learning Torah.
 
Halachic Ruling Shulchan Aruch rules in line with what we have seen:
 
Shulchan Aruch OC 38:3
Women and bondsmen are exempt from tefillin because it is a positive time-bound commandment.
 

Voluntary Performance

 
May a woman choose to lay tefillin voluntarily, just as she can choose to perform other positive time-bound mitzvot?
 
The Talmud Bavli suggests that she may:
 
Eiruvin 96a-b
As is taught [in a baraita]: Michal the daughter of Kushi [Shaul] would lay tefillin and the sages did not protest. And the wife of Yona [the prophet] would make a festive pilgrimage [to Jerusalem] and the sages did not protest…We can derive from their non-protest that…He thinks that [pilgrimage] was voluntary [performance of a positive time-bound mitzva], here too [Michal's wearing tefillin] is voluntary [performance of a positive time-bound mitzva].
 
The Talmud relates that Michal, King Shaul's daughter, wore tefillin, and that the wife of the prophet Yona made a festive pilgrimage.[15] The sages did not protest either act. Naming these specific women may suggest that they were unique. However, the Talmud concludes that Michal's laying tefillin was a standard case of voluntary performance of a mitzva from which women are exempt but not prohibited, and thus was not protested.
 
In contrast, the Talmud Yerushalmi[16] cites a view asserting that the sages did protest Michal's wearing of tefillin:
 
Yerushalmi Eiruvin 10:1
Behold, Michal, the daughter of Shaul, would wear tefillin, and the wife of Yona would make a festive pilgrimage, and the sages did not protest them. Rabbi Chizkiya in the name of Rabbi Abahu [said]: The wife of Yona turned back; Michal, the daughter of Shaul, the sages protested against her.
 
Typically, when the Bavli and the Yerushalmi disagree, Halacha follows the Talmud Bavli. So the Bavli's position that the rabbis did not protest Michal's wearing tefillin provides a strong basis to permit women to wear tefillin voluntarily, notwithstanding the dissenting position found in the Yerushalmi.[17]
 
Early halachic authorities, including Sefer Ha-chinuch, rule accordingly:
 
Sefer Ha-chinuch Mitzva 421
This mitzva applies in all places and at all times, among males but not among females, since it is a positive time-bound commandment. Still if they [females] want to lay tefillin we do not protest and they have a reward, but not like the man's reward, for the reward of one who is commanded and performs is not like the reward of one who is not commanded and performs. In Tractate Eiruvin, in the beginning of chapter "He who finds tefillin," [the sages] of blessed memory said that Michal daughter of Kushi [Shaul] would lay tefillin and the sages did not protest.
 
Rashba, thirteenth-century leader of Sephardic Jewry, also permits women to lay tefillin voluntarily. He uses the case of Michal as proof for his broader position that women can choose to perform mitzvot voluntarily and make a blessing on them.[18]
 
Responsa Rashba I:123
I agreed with the words of he who says that if they [women] want, they can do every positive mitzva and make a blessing, based on the deed of Michal bat Shaul who would wear tefillin. That they didn't protest her, but she acted in accordance with the will of the sages, and presumably if she laid tefillin, she made a blessing.
 
Furthermore, Shulchan Aruch (quoted above) does not indicate that there is any unique aspect to the relationship of women to the mitzva of tefillin, as opposed to other time-bound mitzvot. By extension, a woman who customarily makes blessings on positive, time-bound commandments could choose to lay tefillin and to make a blessing.
 
We will see, however, in our next installment, that there is more to the story.
 

● Did medieval women lay tefillin? What about Rashi's daughters?

We have almost no record of medieval women laying tefillin in practice. There is one report of a few righteous thirteenth century women laying tefillin in the area of Vienna.[19]
 
Rav Avigdor Tzarfati, Sefer Peirushim Upsakim al Ha-Torah
Some righteous women were accustomed to lay tefillin and recite a beracha.
 
Despite their lenient rulings, there is no indication that women in Rashba's or Sefer Ha-chinuch's milieu actually laid tefillin.
 
Halachic permissions do not always lead to halachic practice.
 
The popular claim that Rashi's daughters laid tefillin has no historical record to support it.[20] Where did it come from? Rabbeinu Tam's mother was one of Rashi's daughters, and Rabbeinu Tam is one of the authorities who do not differentiate between women laying tefillin and other voluntary mitzva performance by women. Perhaps Rabbeinu Tam's halachic position was mistaken for a historical attestation about his own mother's practice and that gave rise to the popular myth.
 
 

[1] Although the word 'tefillin' (singular, tefilla) does not appear in the Torah, it appears in Mishna and Midrash Halacha. Rosh (Hilchot Tefillin 2, followed by Tur 25) explains that it is related to the word pelila, judging (also the root for our word for prayer, tefilla), as tefillin testify to the Divine Presence among us.
Rosh, Laws of Tefillin 2
'Tefillin' is the language of judgment, for it is a sign and a proof to all that see us that the Divine presence dwells upon us.
[2] The term totafot appears in the Tanach only to denote the tefillin worn on the head. Commentators suggest a variety of meanings, including remembrance, adornment, or a cryptic reference to the number four (the number of portions of the Torah included in the tefillin).
[3] Rosh, Hilchot Tefillin, 18
That he also lays tefillin on his flesh without a barrier (chatzitza).
[4] Menachot 44a
Rav Sheshet said: Anyone who does not lay tefillin transgresses eight positive commandments. 
Rashi ad loc.
There are four passages in them and with each one they fulfill two positive commands…
[5] Menachot 34b
"And as a remembrance between your eyes". How is that? One writes them on four parchments and places them in four compartments of one hide…Our rabbis taught: How does one write the tefilla of the hand? He writes it on one parchment.
[6] Rashi Menachot 34b
In the order that they are written in the Torah.
Tosafot s.v. Ve-hakoreh
Rabbeinu Tam explained… in the order that they are placed in the tefillin from right to left, which is "Kadesh" "Ve-haya ki yevi'acha" "Ve-haya im shamo'a" Shema"
[7] Menachot 37a
R. Natan says: …For it says "and tie them" "and write them." Just as writing is with the right hand, so too tying is with the right hand.
[8] There is debate as to whether the Torah permits wearing tefillin at night. Halacha follows Rabbi Akiva's view that on a Torah level, tefillin should be worn also at night. Eiruvin 96a
We heard that Rabbi Akiva said: Night is a time for tefillin, Shabbat is not a time for tefillin.
A rabbinic edict, however, prohibits laying tefillin at night, lest one fall asleep and then not be able to be careful about bodily cleanliness.
Shulchan Aruch OC 30:2
It is prohibited to lay tefillin at night, lest he forget them and sleep in them.
[9] Berachot 14b
Ulla said: Anyone who recites Shema without tefillin is as though he testifies falsely about himself.
[10] Shemot 31:13
You, speak to the children of Israel saying: You shall observe my Shabbatot for they are a sign between me and you for all your generations, to know that I am God who sanctifies you.
[11] Menachot 36b
For it is taught in a baraita, Rabbi Akiva says: Is it possible that a person would lay tefillin on Shabbatot and festival days? The verse teaches us, "It shall be for you a sign on your hand and totafot between your eyes." [The obligation applies to] whoever needs a sign. Shabbatot and festival days are excluded [from that category], for they are themselves a sign.
[12] The rejected view that tefillin are not worn at night could be an alternative explanation of tefillin as a time-bound mitzva. (This is derived from Shemot 13:10, which uses the expression “miyamim yamima.” Idiomatically, this means “from year to year” and refers to the annual observance of Pesach. But literally, it means “from days to days” and can be taken to refer to tefillin.)
[13]  Eiruvin 96b:
As is taught [in a baraita]: One who finds tefillin [vulnerable in the public domain, on Shabbat] brings them inside one pair at a time [by wearing them], whether [the finder is] a man or a woman, whether they [the tefillin] are new or old, the words of Rabbi Meir. Rabbi Yehuda prohibits with new tefillin and permits with old ones. They only disagree regarding new and old, but they do not disagree about a woman. Learn from this that tefillin is a positive commandment that is not time-bound. Women are obligated in any positive commandment that is not time-bound. Perhaps they think like Rabbi Yosei, who said 'Women can lean on a sacrifice voluntarily?' [Here too a woman could wear tefillin voluntarily.] You couldn't think so because neither Rabbi Yehuda nor Rabbi Meir agrees with Rabbi Yosei.
Men and women are not permitted to carry articles in the public domain on Shabbat, but may wear them. Rabbi Meir and Rabbi Yehuda permit women to wear tefillin on Shabbat in order to bring the tefillin inside and protect them from the precarious, damage-prone public domain.
The Talmud maintains that since neither Rabbi Yehuda nor Rabbi Meir permit women to fulfill mitzvot voluntarily, they must consider the mitzva of tefillin not time-bound and thus obligatory for women.
See, however, Or Same’ach, Talmud Torah 1:2, who argues that even if they don't consider the mitzva of tefillin to be time-bound, Rabbi Yehuda and Rabbi Meir would still consider women exempt from tefillin because of the exemption from the mitzva of learning Torah (see below). At the same time, though they generally prohibit voluntary mitzva performance, they allow for it in the case of learning Torah or, by extension, laying tefillin:
Or Same'ach, Laws of Learning Torah, 1:2
If so the Talmud proves well that Rabbi Meir and Rabbi Yehuda think that it is not a positive, time-bound commandment. If so, "in order that God's Torah will be in your mouth" refers to learning Torah, and they uprooted it [tefillin from women] just because of Torah…but women are not obligated in tefillin according to any Tanna and that is correct.
[14] A parallel midrash halacha in Mechilta Bo Masechta De-Pischa 17 (quoted in Yerushalmi Eiruvin 10:1) also bases women's exemption from tefillin on women's exemption for learning Torah, employing the verse "lema'an tihiye Torat Ha-shem be-ficha" (Shemot 13:9, used differently in Kiddushin 35a). 
Mechilta of Rabbi Yishmael, Bo Masechta De-Pischa 17
Because it was said "And it will be for you a sign" I understand that this also refers to women. And logic leads [to this]: since mezuza is a positive mitzva and tefillin is a positive mitzva, if you learned about mezuza that applies to women as to men, it could be that tefillin should apply to women as to men. The verse comes to teach us "In order that God's Torah will be in your mouth." I only said regarding one who is obligated in learning Torah. From here they said that all are obligated in tefillin except for women and bondsmen.
The Mechilta does not even raise the issue of positive time bound commandments, grounding woman's exemption from tefillin solely in the exemption from Torah study. It is not clear if Rabbi Yehuda and Rabbi Meir rejected this rationale for exempting women for tefillin as well as the time-bound rationale. See Or Same’ach, supra note 13.
[15] Note also the parallel in Mechilta which likewise brings no opposing viewpoint:
Mechilta of Rabbi Yishmael, Bo Masechta De-Pischa 17
Michal daughter of Kushi [Shaul] would lay tefillin.
[16]Also Pesikta Rabbati 25.
[17] Notably, Gra seems to have understood the Bavli passage differently, concluding that its discussion did not present the Talmudic consensus, but only the specific viewpoint of Rabbi Meir and Rabbi Yehuda.
Be'ur Ha-Gra OC 38:3
And one can say that also the Talmud [Bavli] thought so [like the Yerushalmi] but they only had to cite it [Michal’s story] according to the one who said women are obligated [Rabbi Yehuda and Rabbi Meir].
[18] In this he presumably follows Rabbeinu Tam, as recorded in Tosafot Rosh Ha-shana 33a s.v. Ha Rabbi Yehuda. Rabbeinu Tam does not explicitly permit a woman to make a blessing over tefillin, but tefillin is one of the examples he brings regarding his proof from the blind man and he does not at any point retract it.
[19] Quoted by Avraham Grossman, Ve-hu Yimshol Bach, Jerusalem: Merkaz Zalman Shazar, 2010, p. 318.
[20] See Ari Z. Zivotofsky, "What's the Truth About Rashi's Daughters?" Jewish Action, Summer 2011.