Tzniut: Married Orthodox Woman Covering Her Hair (or Not)

Shimshonit, discussing her being Orthodox, but not covering her hair, at http://shimshonit.wordpress.com/2009/03/22/tzniut/.

I found her comments to be very interesting indeed. There, I comment as follows:

Shimshonit: very interesting post.

I was recently reading Rabbi Avraham Shamma's heter on kol b'isha (see http://michaelmakovi.blogspot.com/2009/02/kol-bishah-new-analysis.html), where, inter alia, Rabbi Shamma quotes the Maharam Alkashar, a Spanish refugee, as saying, "Response: Indeed, there is no concern about that hair [that is outside of the braid], because it is customary to reveal it ... and that [which is said] ‘a woman’s hair is a sexual enticement’ is only referring to hair that it is usual to be covered, but a person is accustomed to that which is usually uncovered [and therefore is not aroused] and it is permitted ... Likewise, the Ravya”h [of 12th-13th century Ashkenaz] wrote that all those [things] that we mentioned for [concern about] sexual enticement are specifically for things that are not customarily exposed, but an [unmarried] maiden who customarily has exposed hair – we are not concerned about sinful thoughts. ... all is according to the customs and the locations."

According to this, there'd be no basis to cover our hair at all today. So many gentiles and non-religious Jews leave their hair uncovered, that the religious Jews are by now inured to this, and there is no longer any sexual enticement. Already, the Aruch haShulhan has ruled that a woman's uncovered hair is not an impediment to a man's saying Shema, since he will not be enticed.

Thus, we can eliminate reasons 3 and 4, viz. enticement and saving the hair for the husband. But what of 1 and 5, viz it being an unequivocal halacha that pleases G-d, etc., regardless of enticement?

The Maharam Alkashar would say that 1 and 5 are simply false; he'd say that then need to cover hair is based exclusively on enticement, and the absence of enticement nullifies the law.

But the Aruch haShulhan holds that the two are separate; covering hair is an unequivocal law, that is not based on any enticement, and that because women followed this law, it eventually lead to a separate enticement issue. The absence of the enticement issue today, however, does not nullify the law of hair-covering itself. In his ruling that uncovered hair does not prevent Shema anymore (due to lack of enticement), he continues on to note, vociferously in fact, that women are in fact sinning by not covering their hair.

Moreover, I'd personally say that even if the Maharam Alkashar is correct, nevertheless, there is a minhag haMakom to cover hair, regardless of any intrinsic halacha or sexual enticement. Religious women cover their hair, and this is a minhag, even if not a halacha.

Most follow the Aruch haShulhan, obviously. But I'd say that even if he is correct, we should realize two things:
(1) There is still a significant opinion that hair covering depends only on enticement, and nothing else. Even if (hypothetically) this is a minority opinion, it is a strong minority opinion, and we shouldn't criticize women who follow it.
(2) Even if a woman IS sinning by not covering her hair, even if the Aruch haShulhan is the only valid opinion, even if my theory of minhag haMakom in this is correct, nevertheless, we should judge a person's religiosity by what he does in general. If you keep Shabbat and kashrut and taharat haMishpaha and tzniut, etc., in general, and you are generally a G-d-fearing Torah-observing individual, we should cut you some slack; no one is perfect. It is wrong to let one mitzvah be a deal-breaker, especially one such as this. It should depend on (1) the halachic severity of the mitzvah (Shabbat is ontologically more important than most mitzvot, for example), and (2) the sociological significance (keeping kosher and Shabbat is almost a badge of being Orthodox, and breaking them is tantamount to a conscious and deliberate declaration of non-Orthodoxy).

We should not scoff at the idea that a sociologically-bound mitzvah is nevertheless binding even when the reason no longer applies, as the Aruch haShulhan has it here. For example, Rambam says many mitzvot are designed to combat idolatry, including the entire system of sacrifices. But no one would suggest that the lapse of classical polytheism negates these mitzvot.

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Update:
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I'd like to note one thing: although my opinions tend to be lenient, and tend to create permissions rather than obligations, this is not always the case; I am not, G-d forbid, trying to blithely erase the difficulty and grandeur of being a Torah Jew. Rather, I simply take my opinions to wherever they lead. Case in point: at http://michaelmakovi.blogspot.com/2009/03/minhag-hamakom-or-avot.html, I argue, based on the concepts of minhag avot and minhag haMakom, that Ashkenazim today are permitted to consume kitniot. However, one will have seen above that based on the exact same concept, I conclude that even though a woman unconvering her hair is no longer erva (sexually immodest anymore), it is nevertheless a binding minhag on all Orthodox women. That is, even if the lenient opinion is correct, that there is no tzniut (sexual modesty)-related obligation (at all, whatsoever) today for women to cover their hair, nevertheless, I argue that it is still a minhag today for Orthodox women to cover their hair. I have applied my minhag opinion universally, whether this leads to a stringency or to a leniency.

In the comments section below, "Skeptic" notifies me of Professor Marc B. Shapiro's "Another Example of Minhag America", http://www.jofa.org/pdf/Batch%201/0060.pdf. This article comes to the exact same conclusion as the Maharam Alkashar, and Professor Shapiro tells me that as far as his memory serves him, Rabbi Isaac Hurewitz (about whom the article is) relies on the Maharam Alkashar in his reply to the controversy (not cited in Professor Shapiro's article).

Also, there is a particular opinion, controversial to be honest, which has made the rounds, particularly in the writings of Rabbi Marc D. Angel. Rabbi Angel, in an interview with the Jewish Press (http://www.urimpublications.com/Merchant2/merchant.mv?Screen=PROD&Store_Code=UP&Product_Code=Search), regarding his new novel, The Search Committee:

JP: In the book, Mrs. Mercado [the wife of Rabbi David Mercado, the book's protagonist] says women no longer need to cover their hair. Is that your opinion?

[Rabbi Angel answers] My opinion is that there are various opinions on the subject. There's a wonderful teshuvah by Rav Yosef Messas (a great Moroccan rabbi and later chief rabbi of Haifa). He says that not only do married women not have to cover their hair but that they shouldn't cover their hair. First of all he's 100 percent against a sheitel because it looks better than a woman's own hair. And to cover with a snood, hat, etc. is not healthy, he says, because they will become less attractive to their husbands who constantly see women with uncovered hair in the streets.

Not too many poskim follow him; he's a yachid. But when I was a kid there certainly were many rabbis' wives who didn't cover their hair. So, I'm not giving a psak. I'm saying there are different opinions.

In Rabbi Angel's book, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, we find the following on page 183. Whereas Rabbi Uziel was strict on women's hair covering, holding like the Arukh haShulhan that it is still obligatory,

Rabbi Yosef Messas, writing in Meknes Morocco in 1955, responded to a questioner who wanted to know the halakhic justification of wives of religious functionaries who kept their hair uncovered (Mayyim Hayyim, vol. 2, no. 110). The question made clear that even the wives of the most traditional and most learned members of the community no longer followed the age-old practice of hair-covering. Rabbi Messas, unlike Rabbis Israel and Epstein [previously cited] of the previous century, did not condemn the new practice. On the contrary, he viewed the rulings on hair covering to be in the category of custom rather than law. Since in olden times all women - Jewish and non-Jewish - kept their hair covered, our sages felt that any woman who did not follow this style was to be judged as being immodest. "However, since in our time all the women of the world have voided the previous practice and returned to the simple practice of uncovering their hair, and there is nothing in this which constitutes brazenness or a lack of modesty ... therefore the prohibition of uncovering one's hair has been lifted."