The Har ha-Bayit Dilemma

From my spot in the Beit Midrash at Yeshivat Hakotel, I looked out upon a clear view of Har ha-Bayit each day. I could see the giant, golden dome dominating the mountain, where kohanim and leviim once served, and I gazed out at a mosque where the mizbeah once stood. However, I remained an observer, watching this scene from afar, as I abided by the opinion of my rebbeim who had told me it is forbidden to ascend Har ha-Bayit. Nonetheless, I still felt a deep connection to the site of the destroyed Beit ha-Mikdash, and felt compelled to learn more about its holiness and status nowadays.

History of Har ha-Bayit

Although Har ha-Bayit is the holiest place in Judaism, the specific site of Har ha-Bayit is never explicitly mentioned in the Torah. Rather, the Torah refers obliquely to the future site of Har ha-Bayit as “ha-Makom asher yivkhar,”or “the place that Hashem will choose.” [i] Here, the Torah develops the concept of designating one location to be a focus of holiness, but it was not until later that the exact location of this “holy place” was revealed. The books of Divrei ha-Yamim I and Shemuel II[ii] tell the story of how David ha-Melekh came to determine the exact location of Har ha-Bayit. David had sinned by counting the Jewish people without proper reason, and in order to punish him, Hashem brought a deadly plague upon Benei Yisrael. In order to demonstrate his sincere teshuvah, David ha-Melekh purchased a plot of land on which to build a mizbeah, offered korbanot, and in response the plague indeed stopped. After this episode, David ha-Melekh declared that the place where this miracle occurred should be the future site of the Beit ha-Mikdash[iii].The obvious question arises: How could David choose the site without first being told to by God? The Sifrei [iv] states that David ha-Melech did the correct thing by seeking out a place to build a mizbeah and lay the foundation for the future Beit ha-Mikdash. Har ha-Bayit could not be revealed without human effort and money; those efforts helped to solidify the site as an important place that Klal Yisrael themselves established, a place which therefore should be eternally important to each Jew.

Since the times of David ha-Melekh, Har ha-Bayit has been endowed with a special level of kedushah. The modern questions about the status of Har ha-Bayit began after Israel recaptured the site during the Six Day War. Shortly after the war, Prime Minister Levi Eshkol returned the authority over the administration of Har ha-Bayit to the Jerusalem Islamic Waqf. In deference to the waqf, the Israeli government has placed severe limitations on Jewish access to the site, most notably by banning non-Muslims from praying on the mountain.[v] Some argue that this ban is in fact illegal and violates the 1967 Protection of Holy Places Law, which guarantees freedom of access for all people to all religious sites for the purpose of worship.[vi] Additionally, many believe that the waqf is intentionally removing and destroying Jewish archeological artifacts from Har ha-Bayit, in order to delegitimize the Jewish claim for the site, another major violation of Israeli law.[vii] Surprisingly, these issues have gone relatively unopposed in the Jewish community. This relative lack of concern for Jewish access to Har ha-Bayit is likely due to the fact that most rabbis prohibit access to Har ha-Bayit on halakhic grounds. For example, the official position of the Chief Rabbinate of Israel is that it is forbidden for Jews to go up to Har ha-Bayit, but the issue is debated. What is the basis for this total prohibition, and how in fact should Har ha-Bayit be treated today?

Position of the Chief Rabbinate

            When the Beit ha-Mikdash was standing, there was a clear issur to be on Har ha-Bayit in a state of tumat met, and there was a more stringent issur to enter either the area of the Beit ha-Mikdash itself (the heikhal) or the Kodesh ha-Kadashim while tamei.[viii] Several rishonim debate the extent to which the prohibition remains in effect today when, unfortunately, the Beit ha-Mikdash is no longer standing.

Due to our inability to obtain ashes of a parah adumah, we are no longer able t­o perform the required ritual to purify individuals from tum’at ha-met, and therefore virtually everyone is assumed to be tamei met nowadays[ix]. Rambam ­­believed that the kedusah of the makom ha-Mikdash is fully in force today because the kedushah established during the period of Bayit Sheni is everlasting[x]. Therefore, according to Rambam, the original prohibition in force during the times of the Beit ha-Mikdash remains in force today, and one should not ascend Har ha-Bayit while tamei. Some scholars, however, point to a letter from Ramabam which suggests that he himself did ascend onto Har ha-Bayit. [xi] R. Ari Zivotofsky disputes this letter’s authenticity. Instead, he suggests that Rambam may have davened at a shul near Har ha-Bayit, but maintained his opinion that entering the actual mountain is prohibited.[xii]

Raavad[xiii], however, disagrees with Rambam’s view, and argues that the stringencies of kedushah which applied during the period of Bayit Sheni do not apply to Har ha-Bayit after the Temple’s destruction. It is true that the Gemara states that the kedushah of the Beit ha-Mikdash is permanent[xiv], but this concept does not apply to Har ha-Bayit, rather only to surrounding areas of Erets Yisrael. Therefore, Raavad maintains that one who enters a holy area today would no longer be hayav karet, liable to the punishment of excision usually applicable to one who enters the Beit ha-Mikdash while tamei.

Former chief Rabbi of Israel R. Shlomo Goren discusses this opinion of Raavad. We know that Raavad believes an individual who goes up to Har ha-Bayit nowadays is not punished with karet, but it is unclear whether Raavad thinks that going up is totally permitted, or whether there remains an issur, albeit a lesser one, without the penalty of karet. R. Goren concludes that the opinion of Raavad is ambiguous, and therefore we must assume stringently that the Raavad maintains that there is still an issur..[xv] As Rambam explicitly states that Har ha-Bayit has the full level of kedusha today, and there is no clear opinion totally opposing him, many poskim prohibit Jews from going up to Har ha-Bayit even today after the destruction of the Beit ha-Mikdash.[xvi]

Basis to Permit Entry on to Har ha-Bayit

            Although both Rambam and Raavad prohibit going up onto sanctified areas, not all areas of present-day Har ha-Bayit constitute areas that are asur to enter while tamei. The Mishnah[xvii] tells us that Har ha-Bayit is 500 by 500 amot large, about 675,000-902,500 square feet. Today, however, the area of Har ha-Bayit is 1,566,149 square feet[xviii], significantly larger than the area described in Masekhet Middot. This discrepancy can be attributed to the area of Har ha-Bayit which was added during the time of King Herod, an area that was never sanctified. Based on archeological evidence, there is a consensus that part of this area lies on the southern side of Har ha-Bayit, near the ramp which ascends Har ha-Bayit adjacent to the entrance to the Kotel Plaza. One is allowed to enter the external area while tamei met, even though one cannot enter with other types of tumah, including the tumah of niddah and a ba’al keri, the two most common types of tumah today.[xix]  However, immersing in a mikvah removes these other types of tumah even in the absence of the ashes of the parah adumah.

            However, even if one does go up to these areas of Har ha-Bayit where the issue of tumah is less of a problem, there are still serious considerations regarding moreh Mikdash, proper fear of the Beit ha-Mikdash. The Torah emphasizes that we must have proper respect for the Mikdash, as the pasuk says, “You shall fear my temples.”[xx] Rashi[xxi] says that this verse teaches one must be careful not to enter the Mikdash with shoes, a money belt, a walking stick, or dusty feet as examples of precautions one needs to take in order to treat Har ha-Bayit with the sanctity that it deserves. This respect becomes especially important according to the opinion of Rambam, who says that Har ha-Bayit has the same level of sanctity today as it did when the Beit ha-Mikdash was standing. Therefore, even if one did go up today, it would be important to treat Har ha-Bayit with reverence. The Shulkhan Arukh, when discussing the halakhot of how to treat a regular shul, says that one may not use a shul as a shortcut, or speak about frivolous matters in it, even if it is destroyed[xxii]. At least the same level of respect would be required in the place of the actual mikdash.

Notwithstanding the evidence to permit going up to the areas expanded by Herod, the poskim who prohibit ascending worry that our archeological evidence might be mistaken, and argue there is no way to know for sure which specific areas Herod added. Since there is a potential punishment of karet for someone who would enter the area of the true mikdash, these poskim are not willing to take a chance based purely on archeological evidence.

Building a Permanent Shul on Har ha-Bayit

            According to those who permit going up the mountain, an important question arises: can we build a permanent shul or beit midrash on Har ha-Bayit today in order to recreate Jewish presence on the mountain? While we may be tempted to add places of prayer and learning to such a holy site, any building on Har ha-Bayit is subject to the prohibition of adding on to and changing the original structure of the Beit ha-Mikdash.

The Gemara in Zevahim[xxiii] brings up this prohibition when it discusses the possibility of building a slot through one of the walls of Har ha-Bayit in order to allow a metsora to perform the mitzvah of semikha, of leaning on the korban he needs to bring as part of his purification process.[xxiv] A metsora needs to bring this korban in order to become tahor, and therefore, is not allowed to enter the inner parts of Har ha-Bayit until after the korban is brought, which would not leave an opportunity for him or her to do semihka. The Gemara, however, rejects the possibility of making a hole because this feature was not transmitted in the original plan to build the Beit ha-Mikdash. The Gemara learns from the verse, “Ha-kol biketav miyad Hashem alai hiskil,” “All this I give in writing as Hashem has made me wise with it,[xxv]” that any additions or changes to the original plans of the Mikdash would be forbidden. Consequently, any structure, including a beautiful shul or beit midrash, that was not mentioned in writing in the Tanakh may not be built on Har ha-Bayit[xxvi].

Non-Jews on Har ha-Bayit

            Potentially more complex than the discussion of Jews ascending Har ha-Bayit are the issues involved with non-Jews going up onto Har ha-Bayit– specifically in the politically sensitive area of the Dome of the Rock. A non-Jew is never permitted to go further than a Jewish tamei met can go on Har ha-Bayit[xxvii] . If Israel were to run the Har ha-Bayit according to halakha, this would pose a major problem, as the Dome of the Rock is almost certainly past this forbidden point. Additionally, while many Jews who would go up on to Har ha-Bayit would abide by the rulings forbidding entering the areas in the center of Har Ha-Bayit, non-Jews would be less likely to be aware of or adhere to this prohibition.  Because he believed that the Jewish people should protect the sanctity of Har ha-Bayit, after the Six Day War, R. Goren requested that the entire Har ha-Bayit be placed under the control of the Chief Rabbinate, and the entire middle section be entirely closed to visitors.[xxviii] Obviously, given the political ramifications of closing such a holy site for Islam, this was not a viable option for the Israeli government, even if it may be the most halakhically accurate approach.

Offering Korbanot Today

            The entire discussion of ascending Har ha-Bayit today assumes that the reasons one might do so are to see the Har itself, and are not related to the desire to perform parts of the Beit ha-Mikdash avodah. R. Tzvi Hirsch Kallisher, in his Sefer Drishat Tzion[xxix] , discusses the possibility that it could in fact be possible to reinstate some of the avodah even before the coming of Mashiah. According to R. Kallisher, reinstating the avodah may be possible for several reasons. He argues that there is no explicit link between bringing korbanot and having a physical Beit ha-Mikdash standing. The issue of tamei met would not apply in this situation, as one who is tamei is allowed to walk around Har ha-Bayit to build a mizbeah if there is nobody who is tahor available[xxx]. Additionally, many communal korbanot of the tzibbur, such as the daily tamid offering, the special pesah offering, and the holiday musaf offerings can be offered in a state of tumah if the majority of Am Yisrael is tamei[xxxi].

However, many other criteria need to be met in order to allow korbanot to be brought. One major obstacle is the necessity of determining the exact location of the mizbeah. Rambam[xxxii] says that since the act of Akiedat Yitzchak, the location of the mizbeah on Har ha-Bayit has remained the same and cannot be changed. Fortunately, even after the hurban, we do know the location of the mizbeah relative to the overall dimensions of Har ha-Bayit. Rashi learns from a pasuk in Tehillim that Bnei Yisrael will find and rebuild the mizbeah.[xxxiii]. In line with this interpretation, Rambam[xxxiv] identifies the location of the mizbeah relative to other areas of Har ha-Bayit.[xxxv] Even if the place of the mizbeah is crucial, the dimensions of the mizbeach do not prevent a korban from being offered.[xxxvi]

Another potential problem that would need to be resolved in order to bring korbanot today would be finding people fit to bring those korbanot. There is a mahloket whether the kohanim today are fit to perform the avodah. Rambam says that kohanim today can eat only terumah that is terumah midirabanan, rabbinically designated terumah, as we are not entirely sure that they are truly kohanim.[xxxvii] Because a kohen would need to be the one to perform the avodah, without the assurances that our kohanim are authentic, they may be disqualified from performing any of the avodah. R. Kallisher, however, argues from other places[xxxviii] that kohanim have a hazakah, a precedent, that they are true priests, which is powerful enough for kohanim to act as kohanim in all ways until they find out for sure (or with a high probability) that they are truly not kohanim. If this is true, then at least some kohanim would in fact be able to perform the avodah today.[xxxix]

R. Kallisher concludes that bringing at least a korban pesah today is theoretically possible, and therefore, should be encouraged. Through Rav Kallisher’s discussions, it is clear that that reintroducing korbanot was considered during the 1800s. R. Yosef Dov Soloveitchik, however, objected to reestablishing korbanot, citing Rambam, who says that Mashiah will build the Beit ha-Mikdash, and only then korbanot will be brought[xl]. Rav Soloveitchik argues that the order is important, namely, that Mashiah is needed before korbanot could be brought.[xli] Since we are still waiting for Mashiah, R. Soloveitchik believes that we cannot begin offering korbanot.

Rebuilding the Beit ha-Mikdash Today

Notwithstanding R. Soloveitchik’s opposition to offer korbanot, R. Goren believes there is significant basis to permit (and possibly require) rebuilding the Beit ha-Mikdash today. He cites Rambam,[xlii] who says that there is a mitsvah to build the Beit ha-Mikdash. Goren argues that the return of Har ha-Bayit to Jewish sovereignty is basis enough to allow the building of the Beit ha-Mikdash to start. This is a minority school of thought, as many do not believe that the modern-day Israeli government has the status of Jewish sovereignty.[xliii]

Conclusion

Although I do not personally go up on to Har ha-Bayit, I am comforted by seeing how practical these issues have become, and look forward to a time when everyone will go up to Har ha-Bayit to visit the Beit ha-Mikdash. The fact that poskim are discussing details related to Har ha-Bayit is significant, as it demonstrates how far along the ge’ulah process has come. In recent years, a greater number of observant Jews have been going up onto Har ha-Bayit, including notably several religious members of the Knesset. There is current legislation in the Knesset to provide greater freedom of access and prayer to Jewish people on Har ha-Bayit. Regardless of one’s opinion about going up on to Har ha-Bayit, it is important to be sensitive to those Jews who believe that going up to Har Habayit is acceptable, and allow them access to Judaism’s holiest site.

Shaul Yaakov Morrison is a sophomore at Sy Syms School of Business, majoring in Finance.



[i] Devarim 14:23, author’s translation.

[ii] In chapters 21 and 24 respectively.

[iii] Divrei ha-Yamim I 22:1, Rashi ad loc.

[iv] Re’eh Pesikah 62.

[v] Jodi Rudoren, “Jews Challenge Rules to Claim Heart of Jerusalem,” The New York Times, 21 September 2012, available at: nytimes.com.

[vi] “Protection of Holy Places Law,” adopted by the Knesset on June 27, 1967

[vii] Yaakov Lappin, “Archeologists: Waqf Damaging Temple Mount Remains,” Ynet News, 7 February 2007, available at: ynetnews.com.

[viii] Vayikra 12:4.

[ix] According to the Torah, a person contracts tum’at met by touching, carrying or being in the same room as a dead body. Because it is fairly easy to become tamei met, whether through visiting a hospital, attending a funeral or through direct contact with a deceased patient or relative, all people are assumed to have become tamei met.

[x] Rambam, Hilkhot Beit ha-Bekhira 6:14 and 7:7.

[xi] Rabbi Dr. Ari Zivotofsky, “Tzarich Iyun: The Har HaBayit,” available at ou.org.

[xii] Ibid.

[xiii] Commenting on Rambam’s Hilkhot Beit ha-Bekhira 6:14

[xiv] Zevakhim 107b.

[xv] Rav Sholomo Goren, Har Habayit, (Jerusalem, 2005).

[xvi] This is the opinion of Rav Avigdor Nebenzahl Shlit”a, former chief rabbi of the Old City of Jerusalem and Talmid of Rav Shlomo Zalman Aurbach zt”l, as quoted by Rav Baruch Vider, Rosh Yeshivah of Yeshivat Hakotel.

[xvii] Middot 2:1.

[xviii] “Temple Mount,” available at: www.bibleplaces.com.

[xix] Rambam, Hilkhot Beit ha-Bekhirah 7:15.

[xx] Vayikra 19:30, author’s translation.

[xxi] ad loc.

[xxii] Orakh Haim 151.

[xxiii] 33a.

[xxiv] Generally, there is an obligation to lean on the korban in the Beit Hamikdash before it is offered. The metsora, however, is unable to do so because he lacks atonement, a needed stage to enter most of Har ha-Bayit. He does not receive this until his korban is brought, and generally, he would do semikha before the offering. This is a catch-22, which the hakhamim struggled to resolve.

[xxv] Divrei ha-Yamim I 28:19, author’s translation

 

[xxvi] We do know that when the Beit ha-Mikdash was standing, there was a Beit Midrash that was used. Unfortunately, we do not know where the exact location of this Beit Midrash was, and if it were to be built in the wrong place, it is potentially a violation of ha-kol bikhtav.

[xxvii] Rambam Biat ha-Mikdash 3:5

[xxviii] Yoel Cohen, “The Political Role of the Israeli Chief Rabbinate in the Temple Mount Question,” available at http://www.jcpa.org/

[xxix] Maamar Shlishi.

[xxx] Rambam, Beit ha-Bekhira 7:23.

[xxxi]  Pesakhim 66b.

[xxxii] Rambam, Hilkhot Beit ha-Bekhira 2:1.

[xxxiii] Tehillim 84:4.

[xxxiv] Rambam, Beit ha-Bekhira 15:5.

[xxxv] Obviously, this presumes that we rely on our archeological evidence to define areas of Har Habayit, although ascending Har Habayit in the first place also assumes that we rely on this at least to some extent.

[xxxvi] Ibid 2:17.

[xxxvii] Rambam, Hilkhot Issurei Biah 20:2,

[xxxviii]  Kiddushin 76a, Ketubot 24b, Rashi ad loc, Rambam Hilkhot Melakhim 12:2.

[xxxix] With the likely reintroduction of the tekhelet dye, it is possible to recreate the bigdei kehunah, a necessary part of the avodah. Machon HaMikdash has made sets of bigdei kehuna that they believe fit the specifications.

[xl] Rambam, Hilkhot Melakhim 11:1.

[xli]   Rabbi Chaim Jachter, “Can We Offer Korbanot Today?” available at: koltorah.org.

[xlii] Rambam, Beit ha-Bekhira 1:1.

[xliii] See Cohen, “Political Role”.