Question: In many Masorti congregations it is the custom to pray without a mehitzah or womens' gallery. Is this custom halakhically justified?
By Rabbi David Golinkin
Responsum: There is no mention of any separation in the Temple in Jerusalem throughout the period of the First Temple or most of the period of the Second Temple. Towards the end of the Second Temple period the Sages directed that a women’s gallery be constructed in the Women’s Court to keep the sexes separated during the somewhat light-headed celebration of the water festival during Succot. During the balance of the year men and women mingled freely in the Women’s Court. (It appears that this was so named because it marked the limit of approach by women who were not bringing sacrifices, to the inner courts of the Temple). There is no literary or archaeological basis for assuming the existence of a synagogue separation during the period of the Mishnah and the Talmud. The first mention is towards the end of the period of the Geonim (around the eleventh century). From then on, such separation is occasionally mentioned in passing. Not until the end of the nineteenth century do we have a halakhic source requiring separation in the synagogue.
Many Orthodox rabbis maintain that the women’s gallery in the synagogue has the status of pentateuchal law (meed’oraita). This is not borne out by the Talmudic sources. The Mishnah, Tosefta, and Babylonian Talmud clearly state that the erection of the temporary separating balcony towards the end of the Second Temple period was a rabbinic enactment (tikun gadol) enacted by the Sages. In any case the existence of a temporary separation in the Temple tells us absolutely nothing about the pattern in the ancient synagogue; the synagogue differs in hundreds of details from the Temple. While the medieval commentators mention separation in the synagogue as a fact, not one demands it or forbids mixed seating. The ironclad institutionalizing of separate seating came about only towards the end of the nineteenth century as an Orthodox strategem directed against the non-Orthodox trends. There is considerable evidence of mixed prayer in the Bible and in the Apocrypha. With reference to the Second Temple period many sources indicate that mixing was the norm in the Women’s Court.
Some argue that the reason no physical divider has been found in any ancient synagogue is that women simply did not attend. However, many sources do testify to the regular attendance of women in the synagogue during the period of the Talmud. The archaeological evidence also supports the literary evidence we have collected. Since the beginning of this century, over one hundred ancient synagogues have been unearthed in Eretz Yisrael, the Golan and Trans-Jordan and another ten in the diaspora. Evidence of a gallery has been found in only five of the Palestinian synagogues and in none of the diaspora synagogues. Furthermore, there is no archaeological proof whatsoever that the five galleries discovered were used by women.
Thus, the separate women’s’ section apparently is a minhag (custom) that developed during the period of the Geonim. May one change a custom, which is perhaps a thousand years old? Many argue that one must always follow customs that were handed down. However, in our history great numbers of customs have been changed: organically by the people and formally by their Rabbis. The mores and habits of society in general are major factors affecting halakhah and minhag. It happens that in our society mixed seating is the norm. Therefore we can use the halakhic principle of haidana (=now) to justify this change in custom. This principle has been used by poskim hundreds of times since Talmudic times. In addition, we can utilize the halakhic concept of regilut (=habit), which was used by medieval poskim such as the Ra’aviyah and the Levush and even by proponents of the mehitzah such as R. Moshe Feinstein. This concept states that men are not sexually aroused by things they are accustomed to seeing and doing. Therefore, since men and women today are accustomed to sitting together at all times, mixed seating no longer has any effect on a man’s ability to concentrate on his prayers. Of course there are still some congregations where mixed seating would be disturbing to the participants. It is entirely proper for them to continue with separate seating. But this is not true of our Movement’s constituency for whom mixed seating is routine. For us, mixed seating is halakhically and instinctively correct.