synagogue reading and hear it instead in the privacy of their homes. This suggests to many leading aharonim that women are not obligated in be-rov am.161
4. Departure from Normative Judaism: The fourth argument raised by nearly all those opposed to women’s services is that they are an innovation, unknown prior to the last half of the twentieth century. They are a striking departure from what has been normative practice in the halakhic Jewish community for millennia. Jewish law clearly recognizes the binding force of minhag, accepted custom and usage. Furthermore, admonishes the stringent school, one must be extremely careful about introducing new rituals, lest they weaken the fabric of traditional Jewish observance.162 This danger is compounded when the innovations are not purely personal in nature, but affect synagogue ritual and/or a large segment of the prayer community.163 In addition, vigilance is required where the innovations are not instituted by the righteous and scholarly of the generation, as with women’s services.
R. Yehuda Herzl Henkin sidesteps this argument in part by noting that most tefilla groups meet in halls, side rooms of synagogues, or private homes, and not in the main shul sanctuary.164 Thus, one cannot argue that the customs of the shuls have been changed.
R. Eliezer Berkovits165 and Justice Menahem Elon166 question the very premise, namely, that the absence of women’s tefilla groups, hakafot or Megilla readings in previous generations establishes a minhag that they are prohibited. The lack of such practices over the past centuries was not the result of any deliberate determination; rather, it merely demonstrates that there was no social need for them.167 The situation would be analogous to the institution of Bat Mitsvah celebrations, which were unheard of in Orthodox Jewish circles several decades ago, yet now enjoy the approval of leading posekim.168,169
This argument requires further explanation. There is a major debate among aharonim regarding a situation in which a community regularly and consistently (ragil u-matsui) refrains from acting in a certain manner—although the action is essentially halakhically permissible. Does such passive behavior, in and of itself, in the absence of a pre-existing pesak halakha le-issur (a restrictive halakhic ruling), constitute a communally binding prohibitive custom (lo ra’inu re’aya be-minhag),170 or perhaps not (lo ra’inu eino re’aya)?171 Even according to those who answer in the affirmative, the community’s passive behavior creates a minhag only when such inaction resulted from a deliberate and conscious decision. It is not sufficient that the community simply did not act; it had to have decided not