By Rabbi Yair Hoffman for 5TJT.com

When readers first encounter the headline of this article some react, “You mean to say that these Rabbis are now saying I can’t wear my MAGA yarmulke in shul?!?  How dare they!”  When those readers are explained that the question came from California and that the idea was whether a “Feel the Bern!” should be banned from shul –  the east coast reader will be a lot more understanding.

So, while in most Agudah type shuls the standard Yarmulkah may be black – the reality is that political Yarmulkas are worn in a number of shuls across the country.  And since Pesach is fast approaching, we have a new set of the Four Questions.  The questions are:

• Can a political Yarmulkah be worn in the first place?
• If the answer is a “yes” should they be worn in a shul?
• If the answer is a “no”, should people be asked to remove them in the absence of a policy because other mispallelim feel uncomfortable?
• If they are asked by the gabbaim of the shul on account of a shul policy to remove their political yarmulkah – is one obligated to comply?

ANSWER TO QUESTION #1

Yes, a political Yarmulkah may be worn.  Believe it or not a Yarmulka is not a religious item.  It is a means of keeping one’s head covered, and originally, the wearing of it was not obligatory.  Now, even though there were various social changes in regard to the Yarmulkah – it only affected the obligation of covering the head – but it never affected the type of Yarmulkah.  What follows in the rest of the answer to Question #1 is a discussion of the halachic arguments regarding the social changes that head covering underwent.

The Gemorah in Kiddushin (31b) tells us that Rav Huna the son of Rav Yehoshua would not walk six feet (four cubits) with a bare head.  He would say, in response to any inquiry, “The Divine Presence is above my head!”

The import of this Gemorah, however, is that Rav Huna was unique in this regard, and that others in his time would not necessarily conduct themselves in such a fashion.  This does not mean, however, that he was the only one who conducted himself in this manner.  The Gemorah in Shabbos (156b) informs us that Rav Nachman Bar Yitzchok’s mother used to constantly exhort him to cover his head so that he will develop a fear of heaven.  The key word here is “constant.”  It seems that he did not necessarily adhere to it always, hence the need for a constant reminder.

The Rambam in his Guide to the Perplexed (Part III Chapter 52) tells us that the greatest of the sages were careful not to reveal their heads on account of the Shechina, the Divine Presence, that surrounded them.  The wording is not necessarily indicative of a change in conduct yet, until we examine the words of the Rambam in the Mishne Torah.  There (Hilchos Deos 5:6) we find that he writes that the Talmidei Chachomim conduct themselves with great modesty and they should not bare their heads.  Clearly a socio-religious change happened sometime between the year 450 CE and 1100 CE.

It is an established principle in halacha that, within certain parameters, when there is widespread socio-religious change within Klal Yisroel, halacha itself undergoes a change.  Thus, for example, we find that certain brachos may be recited that were not recited in previous times.  The Talmud does not say that a blessing is recited upon lighting Shabbos candles.  The blessing on Chanukah candles in shul developed later than the Talmud.  Another example is that we may now wear silk, contrary to the Mishna in Klayim because the socio-economic changes negated the reason behind the prohibition.  One must be careful, however, to carefully understand the parameters of how and why these changes have occurred.

The question is, in regard to the socio-religious change of the head-covering, what type of halachic change transpired?  And also, was there a second or third socio-religious change after the Shulchan Aruch was compiled?

The Shulchan Aruch (OC 2:6) rules that one should not walk four amos with a bare head.  Did the Shulchan Aruch mean this as a strict halachic prohibition?  Or did he mean it as merely a Midas Chassidus – a pious custom?

CONTRADICTION IN THE MOGAIN AVROHOM

To address this question, we find a contradiction in the words of the Magain Avrohom.  In (OC 2:6) he seems to qualify the words of the Shulchan Aruch and writes, “And it is a pious custom to cover the head even less than four amos.”  The implication of his words are that he understood the Shulchan Aruch obligation in regard to more than four amos as a strict halachic requirement.  Indeed, the Mishna Brurah 2:11 understands the Mogain Avrohom in this manner.

The Machtzis HaShekel (OC 2:6) reads the Mogain Avrohom differently.   He writes that the Mogain Avrohom meant that the obligation even for more than four amos is just a pious measure.

All this discussion so far centered around socio-religious change number one.  The Maharshal (Responsa #72) writes that in our times (read socio-religious change number two) it is forbidden because it is viewed as a major social breach by the masses.  It is therefore considered like a violation of Das Yehudis – the religion of the Jews.

The TaZ  (Orech Chaim 8:3) writes that in our times, since it is a gentile requirement to remove their hats upon sitting, it is now a violation of “Ubechukosaihem lo saylechu – do not walk in the ways of the gentiles..”  The TaZ clearly has a slightly different socio-religious change number two then does the Maharshal.

Rav Moshe Feinstein (Igros Moshe OC Volume IV #2) deals with what we can call socio-religious change number three.  He deals with the question of whether a person may accept a job where there is a requirement not to wear a Yarmulkah.  He writes that in our times, the gentiles do not remove their head coverings on account of a requirement to do so.  Rather, they remove it because it is easier and more comfortable.  Hence, the reasoning of the TaZ no longer applies in our times.  He also writes that the majority of authorities held that social change number one was only a Midas Chassidus, not an actual requirement.  He therefore invokes the view of the Ramah (OC 656:1) that one is not obligated to spend vast amounts of money to fulfill a positive Mitzvah in the Torah (one must do so to avoid a negative Mitzvah in the Torah, however).  Indeed, the limit on positive Mitzvah spending is twenty percent of assets.  Since a job is much greater than twenty percent of assets, Rav Feinstein permits it.

It is interesting to note that Rav Feinstein seems to be disagreeing with the conclusion of the Mishna Brurah, who held that socio-religious change number one was a requirement and not a Midas Chassidus.  Thus, Rabbi Feinstein’s initial heter would not have been held of by the Mishna Brurah.  If there are cases of need, however, even the Mishna Brurah would perhaps hold that one may rely upon the lenient view of the Machtzis HaShekel.

One final note for our Lubavitch readers out there:  The Tzemach Tzedek (Lubavitch Rebbe number three) writes (OC chapter two note 1 and 7) that even the lenient view that it is a Midas Chassidus is only referring to short periods of time.  However, being bare-headed for long periods of time would be an actual violation.  Thus, he too disagrees with the leniency of Rav Feinstein.  Once again, however, it must be stressed that in cases of need, Poskim allow one to rely upon a more lenient view.  For any questions regarding work and Yarmulkah-wearing   please ask your neighborhood Rav or Posaik.

ANSWER TO QUESTION #2

A political yarmulkah should not be worn in shul.  The reason for this is that a shul is a holy place and other conversation or distractions should not be placed or brought to shul.  It is for this reason that one does not kiss other people and certainly a baby in shul (See Shulchan Aruch OC 98:2) – because it distracts people from Ahavas Hashem and the davening.  The same would be true with political messages.  The Kaf HaChaim 98:13 rights that one should not even look into the eyes of another person to show that in shul – we are only concerned with our relationship with Hashem and that is all.

ANSWER TO QUESTION #3

Generally speaking, not every time when something is correct should it be said.  People who wear their politics are not always the most rational of people and they are liable to react harshly.  This can often be a great distraction and undermine the achdus and shalom of a shul.  There is a fascinating Gemorah in Chulin 139b.  The Gemorah is discussing the etymological origin of a certain type of pigeon named Yoni Hardisayot.  One view is that they were named after King Herod. Rav Kahana said: I myself saw these pigeons, and they were standing in sixteen rows, each a mil wide, and they were calling out: My master, my master [referring to King Herod]. There was one of them who was not calling out: My master, my master. Another one said to it: Blind one, say it – “My master, my master, so that you will not be punished for refusing to acknowledge the authority of the king!” The pigeon responded, “Blind one, you should [rather] say: My master, my slave, as Herod is not a king but a slave. They brought that pigeon to a slaughterhouse and slaughtered it for speaking against the king.

Although it is debated whether the story actually transpired – the reason why the Gemorah cites it is precisely to teach us this lesson that not everything that is right and true should be said.  [See Agan haSohar Vol. I p. 240 – where Rav Avrohom Genakovsky derives this very lesson.]

ANSWER TO QUESTION  #4

If the shul has an established policy (which they probably should) about banning political Yarmulkahs, then – when asked – the yarmulkah wearer should comply.  The reason is that the shul policy is that all who are present must comply with the rules or they should leave.  If they do not leave that is considered a type of trespassing.

The violation is actually stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehudah and the chachomim (sages) as to whether borrowing an item without permission renders a person into a gazlan – a thief, or whether he simply has the status of a borrower.

WE RULE THAT BORROWING WITHOUT PERMISSION IS STEALING

Rabbi Yehudah maintains that he does not have the halachic status of a thief, while the sages maintain that he does. The Rif and the Rambam both rule in accordance with the sages that he is considered a thief. Indeed, this is also the ruling of the Shulchan Aruch in five different places (CM 292:1; 308:7; 359:5; 363:5).

Does this apply in all cases? Here there is no value per se in setting foot on the person’s property. While this may be the case, the Chazon Ish (BK 20:5) writes that the prohibition of sho’el shelo midaas – borrowing without permission applies even when the item is not something that generally has a market value, and even if the value is less than that of a prutah.

DOES IT APPLY TO LAND OR A SHUL?

Ah, but how do we know that borrowing without permission also applies to being on someone’s land or being in a shul without permission? Maybe in order to borrow, you have to physically take it. Here, you are just taking up airspace in shul or on someone’s land.

INDICATION FROM THE RASHBAM THAT IT APPLIES TO LAND

The Rashbam in Bava Basra 57b discusses a case of two partners in a property. There, writes the Rashbam, we are lenient and assume that one gives the other permission to place his animals on the land without explicit permission. In such a case, he would not be considered a shoel shelo midaas since they, in general, are partners, and would let the other do what they want with their property. The Rashbam, therefore, clearly states that when not dealing with two partners of a property, trespassing would be subsumed under the concept of shoel shelo midaas.

PSAK FROM RAV CHAIM KANIEVSKY

Backing up this idea is a ruling from Rav Chaim Kanievsky Shlita as related by Rabbi Pesach Krohn.  Rabbi Shimon Grama had posed the question.  If someone goes to minyan and parks in a handicapped spot it is considered a Mitzvah HaBaah b’Aveirah and one gets no credit for davening there.  This backs up the idea that trespassing on land is theft.  Rav Chaim added that it is NOT MESIRAH to call the police on someone who parked in such a spot.  Previously, this author reported that it was Rav Elyashiv’s view that it is NOT MESIRAH to tow away a car blocking your driveway.

IF ONE DID TRESPASS

What happens if someone did or does trespass? If you are standing, it is best to sit down in order to prepare for what you are about to read. He is considered a gazlan – a thief. What are the ramifications? According to the Shulchan Aruch (CM 34:7) he cannot be a witness at a Jewish wedding unless he does Teshuvah and makes restitution where applicable.

There is one caveat, however.  If he is unaware that it is forbidden – he does not lose his status as kosher witness, according to the Vilna Gaon.  Most authorities do rule like the Vilna Gaon.

So the shul is no different than land and he must comply with the rules or leave.

The author can be reached at [email protected]