But at the end of the day we have to face facts: the Talmud, the Rishonim, the Shulchan Aruch and Mapa of Rama clearly rule against the practice. We therefore cannot condone it. By definition, if you want to call your community Orthodox, those are the rules that you have to play by.
As Rabbi Avi Shafran puts it:
The essence of halakha is that discussions and disagreements among different authorities distill over time into codified and universally accepted decisions. The ur-text of halakha in the modern era (using the term loosely) is Rabbi Yosef Karo’s Shulchan Aruch, along with its appendage “the Mapa,” in which Rabbi Moshe Isserles added glosses, sometimes but not always to reflect normative Ashkenazic law.
I refer of course to the practice of davening well after the latest time dictated by halacha, something I have notice to be quite common in shuls and schools even in so-called “frum” neighborhoods like Boro Park. The fact that a chassidishe yid may have seen his father daven Shacharis at 10:00, may have seen his grandfather daven shacharis at 10:00, may follow a Rabbi who davens shacharis at 10:00, may even be a member of Agudas Yisrael, simply does not change what it says in Shulchan Aruch. The best of intentions, e.g. it takes longer to rouse kavanah, does not change anything. Those involved can no longer be considered Orthodox.
Did you think I was writing about some other topic?
I don’t intend to defend women wearing tefillin, only to show why the argument that “It doesn’t say that in Shulchan Aruch” is an oversimplification. I guess Rabbi Shafran gets credit because at least he read what it says in Shulchan Aruch, unlike this statement, pointed out to me yesterday, made by another Rabbi condoning the practice: “The Rema famously discourages it. That is, he does not prohibit it, he just advises against it.” The Rama’s actual words, “mochin b’yadam” means the practice is not just prohibited, but is to be protested.
As for lo tisgodedu and yuhara, let me pose a hypothetical: if I wear techeilis on my talis, can I daven in a shul where no one else wears techeiles? I have never heard this argument made before (if it were true, then any new practice like wearing techeilis would probably never get off the ground), and I’m curious if anyone would defend it. I don't think a newspaper article or a blog post in the place to debate the gedarim of these dinim.
What it says in Shulchan Aruch is not the issue here. This far from the first time a Rabbi has faced a situation where, although the Shulchan Aruch says X, he feels that he can be someich on other views and decide Y given the particulars at hand. The entire corpus of Shu”T literature is filled with similar situations. The principal of SAR wrote that he does not condone women wearing tefillin. The question he had to grapple with was whether he could allow the practice given the unique situation of girls attending his school who had been doing so anyway. If push came to shove, would you throw the girls out of an Orthodox school over this issue, or would you call it a sha'as hadechak and rely on views other than those brought in S.A.? Again, I'm not saying I agree with the response, I'm just explaining (based on my reading of his letter) how I think he saw the issue. The real question is who has a right to make such decisions; whose judgment can we trust to tell us when something is OK given the circumstances and when something is over the line?
Rabbi Avi Weiss offers the following answer: “There must be an exceptional halakhic personality who affirms the new ruling on the grounds of sound halakhic reasoning.” (Open Orthodoxy: A Modern Rabbis Creed, Judaism, Fall 1997).
I suggest we apply the same standard to this case.