Is there a “right to religious experience”? This was the question Rabbi Aryeh Klapper posed in the context of Halacha and disabilities this past summer. I was supposed to give a shiur on this topic at the Summer Beit Midrash, but due to the situation here in Israel, our flight was delayed and I never made it to Boston. However, I gave the shiur recently, (here) and I hope it sheds some light on that question. At the end, I will make some comments about women dancing with the sefer Torah on Simchat Torah, just to frame the issues a bit.
I noted first that it is general difficult to speak about rights in the context of Halacha, a system built around obligations. However, I noted that the Gemara was aware that pastorally it is not always effective to reject any claim to desire for unjustified religious experience on the basis that there are no rights in Halacha. As an example, I mentioned the famous story about Hillel, Shamai and the Ger who wanted to be the kohen gadol. Shamai, upon hearing the demand, threw out the potential Ger. Hillel accepted him, but led him to understand why he could not be the kohen gadol (“even the king of Israel would be put to death for trespassing in the Mikdash”), and enabled the Ger to enter the Jewish people and accept the limitations that were placed on him. Both Hillel and Shamai take as a given that limitations are placed on people’s religious experience, but only Hillel understands that one has to be sensitive and smart when explaining this to people. For this he is praised and Shamai critiqued.
There is, however, one concept that may indicate a measure of “right to religious experience” – nachat ruach. The Gemara in two places records that although women are not obligated to do semicha on korbanot, they were permitted to according to some positions to allow for nachat ruach – to make them happy. The Gemara then has two stages. In the first, the Gemara assumes that semicha did not need to be done with full force. If it had, then women could not do it without an obligation as that would have been meilah, illicit use of kodshim when they leaned on the animal. The second stage assumes that semicha does require full force, but assumes that women did a pseudo-semicha. The Gemara seems to have allowed it despite concerns of marit ayin.
What emerges from these positions? Both assume that we would never allow anything prohibited to make people feel good. (Chatam Sofer includes anything forbidden because of minhag, but this is less obvious as we will see) In the first position, however, we encourage only something that is actually a religious ritual, albeit one that women are not obligated in. In the second, we see that we permit waiving mild semi-Halachic problems, such as marit ayin. We also see that the Gemara is willing to create new actions that look religiously meaningful but are not, simply to make people feel good. For those who claim that there is no precedent for allowing people to do things that feel religious but are meaningless, this Gemara has to be overcome. However, see below.
However, from the Gemara, I must admit, that we have no proof that this principle would apply to educated people. From the Gemara it would seem we are dealing with women who do not know what they are doing is meaningless. It is not obvious that the same principle would apply to people who do understand. Applying this principle could be somewhat patronizing. You are basically telling someone – you are unintelligent enough to value things which you know is meaningless.
However, as one looks through poskim, this limitation is not always present. The Masat Binyamin uses this principle to encourage ruling that blind people can get aliyot, a position he came to as he was losing his sight. From here you see clearly that he thought 1) nachat ruach is about an experience common to all people and not just women (this should be obvious) and 2) as he was applying it to himself – it seems to be a principle that is not limited to making uneducated people feel good, but rather an expression of a legitimate desire for religious experience. However, this latter point may only be true in cases where the action is religiously meaningful – as in his case where he thought it was proper to get an aliyah. This belongs in the first stage of the Gemara, as it were. There is no explicit mention of whether it would be proper to allow someone to engage in activities he or she knows in meaningless just because it makes them feel good. Here, I think there is a very strong argument to be made that we should not encourage people to feel religiously fulfilled by actions they know are not intrinsically valuable. In other words, employing nachat ruach for the uneducated may be understandable, but for educated people may warp their worldview. My wife adds that this is worse when the pseudo-religious act is being used to allow the person to pretend that Halacha is not what it actually is. For example, if someone uses clever halachic mechanisms which allow her to pretend Halacha does not conceived of marriage as beginning with a kinyan initiated by the man, nachat ruach may not be a legitimate principle to justify this. I am not sure what to think about this issue at the moment, so I will leave it somewhat open for now.
In another case, the Tashbetz suggested some clever maneuvers at a Brit Milah of twins, one of who did not actually need a Brit, to make it look like both were having religiously meaningful ceremonies performed on them. It seems that this is in a case where the parents are not totally in the dark about what is being done, but see the shiur for my hesitations about this teshuva.
In general, I think poskim are much more amenable to this argument when it is accords with the first answer of the Gemara – when the action in question has inherent religious value, even if the person is not obligated in it. Also, the more anguish that is caused by refraining from permitting the activity and the lesser the Halahic hurdles that must be overcome, the more encouraging poskim will be.
Thus, the Rama based on the Terumat HaDeshen allows waiving the minhag that was once common for women to not attend shul when niddot during the yamim noraim when it causes much pain to be excluded from shul. Attending shul is inherently valuable, and the minhag was not one that he thought was fully binding. [The source of this minhag is a bit complicated if you do not understand minhagei ashkenaz, so not for now.] Note that this seems to be against the Chatam Sofer who did not allow violating a minhag.
The Shut Min HaShamyim encourages women to do mitzvot aseh shehazman grama and make berachot (like Rabbenu Tam), especially when he can explain why they are especially connected to those mitzvot – such as shofar where women also want to be remembered mercifully by God. The Gra says that in general the difference between cases where we say “anyone who does something he is exempt from is a hedyot -an idiot” and cases when we say kol hamarbeh harei zeh meshubach – we praise those who go above and beyond, is whether or not the actions is a mitzvah bietzem – intrinsically worthwhile. Though these are not cases where nachat ruach is employed, the same sentiment I suggest is evident – when there is good reason to encourage a specific action on halachic grounds, poskim are very quick to accept that people should do it even when they are not obligated.
Another model for achieving nachat ruach would be by creating rituals which reflect true Torah values, even if the rituals themselves are not obligations. For example, the poskim justify the seudat mitzvah of a “bar mitzvah” by arguing (without getting into the details) that the Gemara suggests one should celebrate for finding out he is obligated in mitzvot, so of course he should celebrate when he actually becomes obligated. Though this argument should hold true for bat mitzvah celebrations as well, many poskim, such as R. Moshe Feinstein, opposed them. R. Ovadiah Yosef, however, notes that the halachic argument holds true equally for men and women. Thus, even if it may have been influence from feminism or non-Orthodox denominations that created the desire for these celebrations, they should be encouraged, because if properly framed, they reflect authentic Halachic values. Again, he does not use nachat ruach, but his teshuva can be used as a model to solve nachat ruach issues. [I noted that this was based on this same halachic argument that R. Gedaliah Felder explained how anniversary parties could have halachic significance. See Sheelat Yeshurun Even HaEzer 34.]
In my sources, I included an article by R. Broyde where he outlines a basic orientation similar to this.
To summarize, I think that nachat ruach will never allow something prohibited. The standards for what is prohibited for these purposes is less clear. The Gemara is willing to waive marit ayin, and while Chasam Sofer was not willing to waive minhag, the Terumat HaDeshen and Rama were. That does not mean all minhagim are equal, but it does mean it is often hard to decide in cases of minhag was is totally out of bounds and what is not. In general, the more intrinsically valuable the action in question is, the more likely it is that we should encourage it. This can include both encouraging people to keep mitzvot they are not obligated in (assuming no counter pressures), or under certain circumstances creating halachically meaningful rituals. Under some circumstances, even allowing meaningless actions may be legitimate, but I am hesitant to suggest this when people know that what they are doing is not real – that is patronizing and may distort halacha.
As an aside, I would note that these types of arguments are made explicitly and implicitly when it comes to women dancing with the sefer torah on Simchat Torah. R. Nachum Rabinovitch, for example, uses it to explain why woman can, but only when it does not contradict the minhag of the shul – which in many ways accords with Chatam Sofer. R. Yaakov Ariel, discourages women from dancing with Sifrei Torah because it contradicts minhag. Also, he seems not to love men dancing with the Torah either because it sometimes causes the Torah to become invalid. However, he encourages women to create new rituals which are meaningful but not problematic. Thus, while he prohibits women from dancing with the Torah, he suggests a different response to the nachat ruach problem. The Lubavitcher Rebbe opposed it because he thought one should not create new minhagim in shul, and because the anguish was not great – thus not similar to the Rama by niddot. The Rav, as cited by R. Meiselman, thought in this case it violated a minhag of shuls and therefore could not be waived. Gil Student collected a few of these responses: here. In each response, you see how each Rav grappled with the issues presented by this principle and responded accordingly. Even if one not does not agree with a given conclusion (and I will not weigh in here for fear of angering someone no matter what I say), I hope this discussion has helped framed where each decision comes from.