Jonathan Muskat

Making innovative Halachic policy during COVID-19

Over the past few weeks, as the reality of social distancing has set into most of our community, we have all had to adjust our schedules and try to balance getting our work done from home while ensuring that our children are kept busy.  Despite the best efforts of our schools, it has been a Herculean task for many of our families to parent young children.  Teachers have had to reinvent themselves as long-distance learning experts.  Medical professionals have been hit hardest by this pandemic, being on the front lines working long hours treating the enormous uptick of COVID-19 cases and placing themselves in potential peril and we owe them all a tremendous debt of gratitude for their continued unwavering service to our country.

In my community, two Rabbanim in particular have also been working non-stop:  Rav Herschel Schachter and Rav Mordechai Willig.  Every day, they receive numerous halachic questions on topics that many of us have not encountered in our lifetimes.  Besides their initial ruling of closing down minyanim, which is revolutionary, they have addressed countless questions relating to Zoom minyanim, Zoom sedarim, mikvah, taharas for the deceased, establishing triage in medical situations, selling chametz, destroying chametz, use of electronic devices on Yom Tov for those who are isolated, koshering for Pesach, tevilat keilim, and the list goes on and on.  Numerous Piskei Halacha by Rav Schachter on these topics have been written day after day over the past few weeks.   The guidance and leadership that they have provided to the North American Rabbinate and by extension to our orthodox Jewish community during this crisis has been nothing short of extraordinary.

We cannot underestimate the scholarship and wisdom required to answer all of these cutting-edge questions.  There is no question that the halacha is fluid, but the question is how fluid is halacha?  A Gadol is not only well-armed with a knowledge of all the relevant sources available on any given topic, but he is aware of which sources have been accepted, which sources are not accepted and which sources may be relied upon in times of great need.  A Gadol also needs to factor in meta-halachic concerns like the “slippery-slope,” namely what certain types of allowances might cause.  An example of “slippery-slope” concerns would be certain outdoor minyanim.   It seems to me that there may be certain types of minyanim that might be able to meet with minimal health risk due to social distancing, but we would prohibit them because once we allow minyanim in certain instances, others might take the liberty to make minyanim when the appropriate social distancing is not enforced.   Rav Willig was so concerned about this that when he was mesader kiddushin at a zoom wedding that had barely a minyan in attendance, he told those watching that because there are ten men present anyway for the wedding they are davening mincha with a minyan but we should absolutely not gather ten men in any other circumstance for the sake of putting together a minyan.

Let me provide three broad categories of examples of these types of rulings.  The first type involves Pesach preparation.  Our Poskim have asserted in many instances that normal Pesach stringencies should be avoided if the stringencies may cause a potential health risk or they can be avoided for this year because the adverse emotional impact of such stringencies is just too taxing on all of us who are preparing for Pesach.  Examples of such leniencies include not being overly strict regarding certain Pesach products if being strict would require additional shopping, not allowing public burning of chametz, allowing one to listen to a siyum via Zoom or allowing us kasher our dishwashers even if we don’t typically allow for this for a variety of reasons (e.g., some Poskim are strict and do not kasher plastic for Pesach).  There may be some hesitation for Rabbanim to utilize some of these leniencies for their congregants out of concern that maybe in a subsequent year, the congregants may wish to utilize some of these leniencies even when they are not necessary.

A second category relates to Zoom sedarim on Yom Tov.  A group of Moroccan Rabbis in Israel issued a permissive ruling specifically for members of their community to set up Zoom sedarim for grandparents and grandchildren who can’t be together for the seder.  Rav Schachter wrote a responsum on this topic and allowed these sedarim in situations of potential pikuach nefesh.  He also provided a potential leniency of leaving a phone on so that others can follow the seder like in the case of baalei teshuva under pressing circumstances.  I think that this is more than simply a purely halachic issue.  According to Rav Shlomo Zalman Auerbach, these prohibitions seem to amount to Rabbinic prohibitions and under pressing circumstances that are not even life-threatening circumstances, there may be room to be lenient.  But I think it’s more of a question of what do we want our Yamim Tovim to look like in a world of automation.  What’s considered a pressing need?  For Rav Schachter to allow a very limited leniency of allowing a phone to be on but nothing more in very limited circumstances, perhaps the concern of “slippery slope” is not so great.  But allowing a Zoom seder with the likelihood that in the middle of the seder the Zoom will go off and people will have to turn it back on may open the door to widespread Chillul Yom Tov in this situation and eventually in a non-pandemic situation, as well.  I think that this is clearly a concern and therefore, acceptable leniencies must be narrowly constructed.

Another category of examples relates to Kaddish.   It is hard to think of many more powerful aspects of Judaism than that of reciting mourner’s Kaddish.  People often rearrange their entire schedules for eleven months to be able to recite it with a minyan.  Their days would be anchored around the recitation of Kaddish.  How can we not find an opportunity for mourners to recite Kaddish?  Rav Eliezer Melamed, a prominent halachic authority in Israel, believes that there are grounds to recite mourner’s kaddish with a virtual minyan.  Rav Schachter and Rav Willig disagreed with the assertion that Kaddish, which is a davar she’bikdushah, can be recited without ten people present in the same room.   Rav Schachter thought that one should recite mishnayot in memory of a loved one and Rav Willig thought that one could recite the “Al Hakol” prayer that we say after we take out the Torah in memory of a loved one which contains a lot of language that is similar to a mourner’s Kaddish.

I wonder if the objection to the virtual Kaddish is a purely halachic one or whether there are long-term implications to this decision, as well.  In other words, is it simply a question of whether we are violating a prohibition by saying devarim she’bikdusha, like Kaddish, without a minyan, or is this a question of what do we want our Kaddishim to look like in the future.  There is something very powerful when someone comes to minyan day in and day out for eleven months when he or she loses a parent.  And I wonder what the long-term implications of a lenient position on Zoom minyanim will be in continuing to create significant positive pressure on a mourner to attend minyanim every day for eleven months when this pandemic is over.  A colleague suggested that perhaps the avoidance of Zoom minyanim may be based on the fact that only God can be in more than one place at once, but we are limited to one time and one place.  With all the technology in the world, we cannot and should not attempt to defy or change that limitation; rather, we should accept that we are where we are physically located when it comes to joining with others to create a minyan.

We owe a debt of gratitude to Rabbanim like Rav Schachter and Rav Willig who have given so much time to lead our community during this crisis and in doing so, they have had to evaluate new issues that our community has never faced.  They have balanced sensitivity with fidelity to the halachic literature while considering the long-term impact of their decisions.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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