2014 Summer Beit Midrash, Week 4

By Betsy Morgan and Leah Sarna

The Summer Beit Midrash’s endeavor to make a sugya, a coherent topic, of Halacha and disabilities continued this week with the issue of guide dogs in places of study and worship. We then moved to the status of cheresh (a deaf person) in halacha.

The primary voices regarding guide dogs are the writings of Rav Moshe Feinstein, Rav Mordechai Yaakov Breish, and Rav Binyamin Lau. Rav Lau’s tshuva is the most recent, and presents the machloket between Rav Moshe and Rav Breish’s tshuvot.

Rav Moshe’s answers the following question: Is a blind man who requires having his guide dog with him at all times able to enter a Beit Knesset, or would it be inappropriate to bring in an animal?

Rav Moshe cites a report in the Talmud Yerushalmi that someone who had learned Torah was allowed to lodge in a Beit Midrash along with his donkey and belongings.  This follows the principle found in Masekhet Megilla that the “Place of the Rabbis” (bei rabanan) is the “House of the Rabbis” (beita d’rabanan).  Since Diasporan batei knesset are generally built on condition that they have the status of batei midrash, it is therefore clear that bringing a donkey into a Beit Knesset is no worse or disgraceful than eating, drinking, and sleeping in Beitei Knessiot, which is permissible in extenuating circumstances.  Through a series of proofs, Rav Moshe shows that in our times it has become more common to eat and drink in Beitei Knessiot, not only in extenuating circumstances.

Additionally, a small proof can be provided from a Rashi on Brachot 62, that explains that Abaye raised a sheep that was always with him. Knowing that Abaye spent most of his time in the Beit Midrash and inferring from the use of “always,” it is probable that the sheep would enter the Beit Midrash.

Therefore, a blind man may bring his guide dog with him to enter a Beit Knesset and participate in the congregation.

Rav Breish responds directly to Rav Moshe and offers a broad array of criticisms of Rav Moshe’s lenient conclusions.

  1. The leniencies Rav Moshe lists should only work with an actual Beit Midrash and not a Beit Knesset.
  2. The Yerushalmi is concerned with lodging the individual for the night, not during prayer services. Perhaps the presence of the donkey during prayers would have been forbidden since it would disrupt the concentration of the congregants.
  3. Possible animal excrement would also be halakhically problematic in a shul, as people have to keep a certain distance and having a malodorous material would prohibit the recitation of certain prayers.
  4. When the Yerushalmi allows lodging “chamrei” in the beit midrash, perhaps it refers not to the donkey (his chamor) itself but rather to the donkey attendant (his chamar), even if the attendant has not studied Torah.
  5. A dog is more abhorrent than a donkey, based on a Gemara where a dog’s bark causes a woman to miscarry.
  6. A dog would cause a disturbance in a shul when children play with it.
  7. Only haughty people have dogs, and Jews do not customarily keep pets.
  8. It would also be unseemly to allow a dog to enter a Beit Knesset, since Christians do not permit dogs to enter churches.
  9. Abaye’s sheep did not follow him to the beit midrash, but only when he was home.

Ultimately, Rav Breish rules that although the blind man would not be permitted to enter a Beit Knesset with a dog, he presumes that congregants will take responsibility and help him enter and find a space.  Furthermore, if no help is available, the blind person should not be distressed, because in that case he will be considered anoos, in a state of duress, and not obligated to come to services.

Rav Lau responds to a complaint by a large group of blind travellers that they were prevented from entering the Kotel plaza with their guide dogs.  He presents his opinion in the context of Israeli law forbidding discrimination against the disabled, even in religious institutions, unless the discrimination is essential to the character of the institution.  He argues implicitly  that this should require us to rule that the guide dog can enter even if there is a prior halakhic dispute on the matter, so long as the lenient position is clearly halakhically legitimate.  He points out that Rabbi Breish in many ways is making a “slippery slope” argument rather than arguing that guide dogs in shul are directly problematic.

Rav Lau highlights the essence of the argument as resting in how the question was understood. Rav Moshe thought he was faced with a binary situation: either the man will come to Beit Knesset with his seeing eye dog, or he will not come at all.  Rav Breish saw that there was another option, that members of the community would help their fellow.

Rav Lau posits further that Rav Breish saw himself as battling a weakening of religious rigor and was not ready to allow change in Jewish practice, even to the extent that Jews should not start being comfortable with dogs.  Rav Moshe, by contrast, was responding to the (American?) value of independence, and therefore permitted the guide dog to enter even if there were an option of depending on other human beings to help the blind person.

Rav Lau reviews the positions of Rav Soloveitchik, Rav Ovadyah Yoseph, Rav Shlomo Amar, various halachik decisions found on the internet, and Rav Rabinowitz (the Rav of the Kotel, who ruled that dogs could not enter the Kotel Plaza).  He concludes by saying that even according to the opinions that prohibit allowing a seeing eye dog to enter a Beit Knesset, the prohibitions are not strong. The reality is that blind people are accompanied everywhere by their seeing eye dogs, and it is the responsibility of a people to accept people with disabilities as we have done in other legal spheres. It is impossible to compare the state of blind people in the past to that of today.

Rav Lau successfully argued for the Chief Rabbinate to overturn Rav Rabinowitz’s ruling and instead create a designated pathway for people with guide-dogs to enter the Kotel plaza.  He suggests that this will allow people who are disturbed by dogs to avoid them.

Others who have written about this topic recently include Rav Yaakov Sassoon, nephew of Rav Ovodyah Yoseph zt”l. He recognizes that dogs are considered domesticated and educated, but rules that it is still prohibited to bring one into a Beit Knesset.  However, a blind man could walk with his dog to Beit Knesset, find a place to tie it outside, and members of the community will aid him inside the Beit Knesset. If one is to rely on Rav Moshe, it should only be in a community where people are used to being near dogs and where the dog will not cause a disturbance.

On Tuesday we began our discussion on the cheresh, which will extend until the end of the program. Questions abound. Who is a cheresh? What kinds of mitzvot are they exempt from? Why are they exempt from these mitzvot?  How has, can, or should the halakhic definition and status of cheresh change as the result of advances in education, technology, and awareness?

We began our discussion by looking at Tannaitic sources from the Mishnah, Tosefta and Mechilta.

Let us begin with a definitional Mishnah and Tosefta from the first chapter of Terumot. The Mishnah states that

“The cheresh which the sages speak of in all places is a person who neither hears nor speaks.” 

The Tosefta adds a statement by Rabbi Shimon ben Gamliel, who asks

“Who is the cheresh? Everyone who was a cheresh from his beginning. But someone who was able-bodied and became a cheresh, he can write and others can fulfill his words.”

The Tosefta continues,

“The person who hears and doesn’t speak is an ilem (a mute) and the person who speaks but cannot hear is a cheresh— they both are like an able-bodied person in every way.” (We generally assume, in line with a Rashi in Chagiga 2b, that the cheresh who speaks but cannot hear is a cheresh who once could hear and thereby learned how to speak– the person Rabban Shimon ben Gamliel speaks of.)

We therefore have at least two and perhaps three categories of people who our texts sometimes refer to as “cheresh.” Each of these categories have different considerations and different rules. Naturally, this confusion complicates our reading of nearly every text which speaks of a cheresh.

We studied many other Tannaitic texts. With each text we learned a new rule about the cheresh and tried to understand what Chazal thought of him. Here’s a sample:

We began with a very confusing Mishnah from the end of the third chapter of Tractate Rosh Hashanah. In the context of a discussion of kavanah, intention, in the performance of the mitzva of shofar, the Mishnah writes that

“a cheresh, a cognitively impaired person (shoteh), and a minor cannot fulfill the obligations of the masses. This is the principle: anyone who is not obligated in something cannot fulfill the obligations of the masses.”

This piece of Mishnah seems to imply that a lack of intention (or ability for appropriate intention) leads to an exemption from obligation for the cheresh, the cognitively impaired person, and a minor.

We find another statement of principle in the Mishnah in Tractate Gittin (2:6) about the person who is an agent delivering a get:

“This is the principle: whoever begins [his agency] and concludes it with daat (knowledge) is an appropriate agent.”

In this same Mishnah, we learn that a cheresh who was designated as an agent and then becomes able-bodied cannot be an agent, while an able-bodied person who became a cheresh and then became able-bodied again may be an agent.

In Tractate Taharot 8:6 we learn that a chereshhas action (maaseh) but does not have thought (machshava).”

To summarize these Mishnayot: the Mishnah sees the cheresh as lacking in ability for kavanah (intention), daat (knowledge), and machshava (thought). Later sources will typically just refer to the cheresh as someone who is lacking in daat.

We moved on to look at five different sections of the Talmud Bavli.

In Tractate Chagigah 2a-b we find ourselves in the midst of a discussion about people– such as the cheresh–  who need not bring the sacrifice associated with the pilgrimage festivals (Korban Reiya). The Talmud differentiates between our different kinds of cheresh, telling us that those who can speak or hear are still obligated in experiencing the joy of the holiday (simcha), while the cheresh who cannot speak or hear is exempt from the obligation of joy as well. This distinction lines up with our previous understanding that the cheresh who cannot speak or hear is lacking in daat while those who can speak or hear have daat.

The Gemara in Chagigah introduces us to the primary cheresh advocate of rabbinic texts: Rabbi Yochanan ben Gudgata. The Tosefta in Terumot tells a story of his cheresh sons who were in charge of all the purities in Jerusalem. Here in Chagigah we hear a story of his grandchildren who were also chereshim. They used to sit in the beit midrash of Rabbi Yochanan. One day they were healed, and it was found that they had learned the whole Torah.

The Gemara in Yevamot 113a puzzles over the opinion of Rabbi Eliezer who says that the terumah of a cheresh has the status of safek, doubt. What is this safek? There are two options. The first one assumes that the cheresh is “daata kalishta” — a person of weak intellect. The safek of Rabbi Eliezer is just whether he has enough daat for bringing terumah or not. The second option suggests that a cheresh is different at different times– sometimes he is of weak intellect and “lav daata tziluta,” of unclear intellect– and sometimes he is “chalim,” of sound intellect. The safek in this option regards what state the cheresh is in at a given time. We found these options very interesting. The first option suggests that we know the nature of the cheresh, while the second suggests that a cheresh is totally inscrutable. We cannot tell at any moment whether he is of sound intellect or not.

We found the Gemara in Yevamot 104b interesting because it contains opinions which imply strongly that a cheresh has intellect.

In Shabbat 153 we meet a person who finds himself travelling as Shabbat begins. To whom should he give his wallet? If he has to choose between a cheresh and a cognitively impaired person (shoteh), he should give it to the shoteh because the cheresh has stronger cognitive abilities (explains Rashi). If he has to choose between a cheresh and a minor, we see a debate. Rabbi Eliezer would say that we have a doubt as to whether the cheresh is obligated in the mitzvot— so he should give his wallet to the child. The sages would say that he should give his wallet to the cheresh because the child will someday become obligated in the commandments.

We found this text especially interesting because it suggests that Rabbi Eliezer’s safek applies not just to terumah but to all mitzvot.

Lastly, we saw an extremely difficult text in Gittin 67b. This texts argues about whether and how a cheresh can divorce. The Mishnah suggests that a mute person can divorce by nodding to questions. Another text suggests that a cheresh cannot use any kind of signing or motions or writing in order to divorce. We have a third text that suggests that a cheresh who used to be able-bodied can divorce through writing. Last, the Gemara deals with a text which suggests that a man who becomes a cheresh can never divorce. While the Gemara tells us that texts three and four disagree with each other, the final opinion on the matter suggests that one might have resolved the two texts by saying that a cheresh may divorce only if he is capable of writing. We found this Gemara extremely difficult to interpret, however we suspect that it will be very important going forward, as it deals with a cheresh who is capable of communication.

After wrestling with these bits from the Bavli, we began looking at tshuvot from achronim  concerning chereshim. The first two are from the Hilchot Ketanot, an idiosyncratic writer, answering the question, what is the ruling for someone who kills a cheresh (deaf person) or shoteh (cognitively impaired person)?

He begins by bringing a concept from the Gemara that one might think answers the question, but according to him, does not. There are groups of people who are considered unable to pay damages, but if someone is liable for damaging someone from this category, the damager owes the ‘damagee’ damages. A shoteh and cheresh fit into these categorizes. From this concept, one might be tempted to argue that since one would be liable for damaging a shote or cheresh, one would most certainly be liable for killing a shoteh or cheresh. The remainder of the terse tshuva brings cases where one is liable for damages, but not liable for killing, like the people we are “moridin v’lo ma’alin” (we lower them [in a pit] and do not take them out) and treifot (human beings who have a puncture in a vital organ  that will cause them to die within a year).

This shocking teshuvah is the result of believing bodies are irrelevant to the concept of personhood.

The next questions the Hilchot Ketanot answers is if we would break Shabbat in order to save a shoteh or cheresh.

The important points of this tshuva are as follows:

-He argues that a cheresh has at the least more daat (hard term to define, possibly, awareness, intention, or clarity of mind) than a shoteh.

-In two lines, he asks why a high functioning deaf-mute person he knew should be considered an animal as a result of having a low level of daat, and then claims that someone who is missing one sense is not considered a person.

-He compares the deaf to the blind, because they are both missing one major sense, but asks why the rabbis did not make deaf-mutes rabbinically obligated to observe all of Jewish  laws the way that, according to Tosaot, the blind were obligated even according to the position that the Torah exempts them.

The Tzemach Tzedek answers a question of how to conduct the kedushin, the marriage, of a deaf man and woman.

The asker describes the deaf-mute man, his future brother-in-law, as being high functioning: understanding prayer services, working as a tailor, being able to sign his name, and doing business with people. He uses the term “ilem,” which generally means mute. The Tzemach Tzedek’s first point is define this deaf man as a “cheresh” and not “ilem.” He then makes a point of saying that we do not distinguish among different types of chereshim. The marriage should be done such that it is recognizably kedushin m’derabanan (rabbinical marriage) with nodding, instead of the plan suggested by the asker that would appear to be kedushin m’deorita (Biblical marriage). He relies almost entirely on anecdotes of how other chareshim have conducted kedushin, and does not explain why chereshim have the status they do.

The Sha’ar Zekenim is asked if parents have an obligation to educate a cheresh child. In his answer, the Sha’ar Zekenim maintains that there is no obligation of chinukh, religious education, to a cheresh. However, they are fully considered human and Jewish, despite not having religious obligations.

In summary we find that the halakhic questions surrounding chereshim can be answered in a variety of ways, some with outstanding demonstrations of sensitivity and others with an appalling lack thereof. From the time of the Gemara, there have been highly functioning deaf-mute people, the way we saw the highly learned blind Rabbis in past weeks.  The realization that past decisors were aware to at least some extent of high-functioning deaf-mutes means that we cannot simply assert that new circumstances and information have made their decisions obsolete.  This adds complexity to the endeavor of defining cheresh and developing the space of deaf-mutes within contemporary Jewish law.

Shabbat Shalom!

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