As first noted on Rav Gil Student's Hirhurim blog, Rav Michael Broyde recent published a long treatise on the permissibility for married Jewish women to not cover their hair in public. As anticipated, Rav Broyde's piece has generated tremendous discussion in the blogosphere. This post is my attempt to add to that discussion.
Before I begin I will note the obvious. Rav Michael Broyde is a tremendous talmid chacham, an important dayan in American circles and a very infuential figure within the modern Orthodox community while I am only a mythical secondary character in an excellent fantasy fiction trilogy. I wish no offence to Rav Broyde in my comments on his article, nor do I expect him to even take note of them but if part of limud Torah is the element of discussion around such things, then I am within acceptable limits to state my concerns.
It is interesting to note that many otherwiswe impeccably tznius frum marriedwomen in the Modern Orthodoxy community routinely avoid the requirement to cover their hair properly when in public. I'm not talking about the ladies who wear pants or short sleeved shirts but those garbed completely appropriately but with the locks flowing in the wind. Given that this habit has not been limited to the layfolk but that several prominent rebbitzens over the years have also gone bareheaded in public, it stands to reason that there must be halachic justification for the practice. It is this justification Rav Broyde seeks in his article.
Certainly the issue of hair covering is not as cut and dried as some in the Chareidi community might like others to believe. There is tremendous discussion on both the stringent and lenient sides of the issue from the gemara down to the Acharonim with strong arguments brought for each.
Basically the root of the arguments comes from a verse in the laws of the Sotah in Bamidbar. As part of the ritual in the Temple, we are told that the Kohen officiating uncovers the woman's hair. This leads Rashi and others to conclude that until that point it had been covered and that therefore Jewish women cover their hair.
The problem with such a vague reference is that it provides no parameters. At one extreme we could conclude, as the Rambam does, that public hair covering is an obligation for all Jewish woman, married or not. One could counter with the opposite extreme - hair covering is only required when the woman enters the Temple precinct (or shul nowadays), not otherwise. Or it could be somewhere in between.
Further, Rav Broyde notes that what uncovering the hair means is also vague. Does it actually mean removing a physical hair covering or could it be understood to mean that the woman's hair was neatly braided and that uncovering means undoing the braid and giving it a rough toussle? If the latter is the case, then we can learn nothing about physical hair covering from the verse. We might only conclude that a woman must go publicly with her hair nicely braided, not necessarily physically covered.
From there we move to the famous gemara in Kesubos that discussed das Moshe and das Yehudis. In brief, das Moshe are those Torah-level obligations that are required of married women in their marriages. Das Yehudis are those obligations that are incumbent on married women by force of custom and predominant culture. The difference between the two is vital. The former don't change from time to time or place to place. The latter do and therefore if physical hair covering is das Yehudis then if it can be shown that not covering the hair is acceptable in society today then there is no obligation for married women to cover their hair.
Thus Rav Broyde, in a thorough analysis of the issue proceeds to propose that physical hair covering is das Yehudis and therefore since nowadays we are used to seeing married women with uncovered hair and therefore the sight of such elicits no sexual excitement (the presumed reason for the prohibition) then married women today no longer have to cover their hair.
To his credit, Rav Broyde notes at the end of his article that he is not coming to moreh heter on the subject but merely to melamed zechus on those frum women who do not cover their hair in public. However, his treamtent of the subject left me unconvinced for the following reasons.
1) A basic reading of the gemara implies there are two levels of head covering, one a das Moshe and the other a das Yehudis. Das Moshe would seem to require some kind of head covering referred to as a work basket. Thus a baseball cap nowadays might be sufficient to fulfill the requirement. Das Yehudis, on the other hand, seems to require a complete covering the hair in public, at least during the times of the gemara. Rav Broyde goes on to show that over different eras, many Rishonim in fact drew this conclusion but he uses (deliberately?) vague language in doing so. Although he lists eight prominent authorities who clearly conclude that "hair covering" is das Yehudis, one could easily conlude from reading their excerpts that they mean the second type of hair covering, the "total" version instead of the "minimalist" version. Thus while showing support for the baseball cap option, he strongly gives the impression that being competely bareheaded is not a violation of das Moshe, something not supported by the gemara or a simple reading of his supporting Rishonim.
2) From reading his various sources, there is a meta-thought that comes to mind. Yes, many authorities note something along the lines of "Nowadays since no one covers their hair, there is no sexual excitement associated with a married woman's hair so they don't have to cover it" but in many cases there is an caveat along the lines of "In our many sins..." or "Woe that we have fallen this far but..." In other words, many of ther permissive authorities admit that total hair coveing is only das Yehudis and therefore not required like in the times of the gemara but they clearly don't accept this as the ideal situation. Does this not imply something beyond the basic "Is it allowed or isn't it"? To use a harsh analogy, someone living in a swamp eventually won't notice the stench but that doesn't mean the place no longer objectively stinks.
3) There are those who can take Rav Broyde's conclusions to an unacceptable extreme. If das Yehudis is subjective and dependent on societal norms, then why can't this be extended to other areas of tznius? If all woman walk around in tank tops and mini skirts which makes that the societal norm, then why couldn't some avante garde YCT Rav come along and advise his female congregants that its okay to dress like that?
4) Finally, many people who drink cholov stam know that Rav Moshe Feinstein, zt"l, wrote a teshuvah permitting the drinking of regular milk. They might not know the details or limitations of the responsa but they know to say "Rav Moshe said it's okay". My fear is that this article, although presented in a very specific fashion, will one day become the equivalent of that teshuva with Modern Orthodox women who have never read the article saying "It's okay not to cover your hair. Rabbi Broyde said so." Yes, a posek doesn't have to take into account ignorance and people who will deliberately misrepresent them but with Modern Orthodoxy needing chizuk, not heterim, in order to strengthen itself, this article might work in the opposite fashion and give legitimacy to the "See, another thing we don't really have to do!" crowd.
These then are my concerns and why I am not as impressed with the article as I was hoping I would be.