Planting Trees next to a Shul
One of the Mitzvos in Parshas Shoftim is לֹא־תִטַּע לְךָ אֲשֵׁרָה כׇּל־עֵץ אֵצֶל מִזְבַּח ה' אֱלֹהֶיךָ אֲשֶׁר תַּעֲשֶׂה־לָּךְ - You shall not plant an Asherah, any tree, beside the altar of Hashem your G-d that you make[1].
We are forbidden from planting any tree in the Beis Hamikdash or near the Mizbeach. The prohibition applies anywhere in the Azarah[2] and applies to all types of trees, whether they are fruit-bearing or not[3]. According to Rashi and Ramban, the prohibition applies to entire Har Habayis[4].
In Sefer Hamitzvos, the Rambam[5] explains that the reason for this Mitzvah is to distance us from Avodah Zarah and its practices. Idolaters would beautify their houses of idol worship by planting trees. These trees also directed people to where to gather[6]. Asherah was a tree that was worshipped and placed next to places of worship by the Canaanites in Biblical times.
From the additional phrase כל עץ, “any tree”, the sages derive that even building wooden structures, such as a portico, is forbidden in the Beis Hamikdash. There is a debate between the Rishonim whether this extension of the prohibition is also Biblical[7] or is only a Rabbinic law.
In almost all classic Halachic literature; the Talmud, Rambam and the Halachic codes including the Shulchan Aruch, there is no suggestion that this prohibition may also apply to planting trees next to a Shule.
However, in a gloss on the Shulchan Aruch[8], Rabbi Akiva Eiger writes in the name of the commentary of Rabbi Dovid Armaah on the Rambam, that it as a Rabbinic extension of this Mitzvah, it is forbidden to plant trees in the courtyard of a Shule as well. This is the only early source that applies the prohibition to a Shule.
This ruling is discussed and debated by the later Poskim, some dismissing it and others accepting it.
Underpinning this extension is the association of a Shule to the Beis Hamikdash. The Novi Yechezkel[9] refers to a concept of a Mikdash Me’at – a micro-sanctuary. The sages[10] explain that this refers to Shules and Batei Midrash.
From this comparison, we derive that many Halachos from the Beis Hamikdash apply to a Shule as well[11] such as; the requirement that the Shule be built as the tallest structure in the town[12], that one may not destroy or even remove stones from a Shule[13], one may not use a Shule as a shortcut[14] and that one may not use funds from harlot’s fee in the building of a Shule[15].
The question is how far do we take this association and in relation to which laws.
One of the great Poskim who accepted and strengthened this prohibition was the Maharam Shik, who has two Teshuvos on this topic[16].
In the first Teshuvah dated 1873, Maharam Shik[17] was asked about planting trees next to a Shule for beauty and to provide shade and shelter from the elements.
He writes that based on the rationale of the Mitzvah as described by the Rambam and Ramban, that it is to avoid emulating the idolaters who planted trees next to their houses of worship, the same logic would apply to a Shule.
He gives a further, pragmatic reason to not plant trees next to a Shule as they will result in people hanging-out outside and not coming into Shule at the time of Davening (Kiddush club?) or Shiurim. There is also the concern that it may lead to mingling of men and women.
In a second Teshuvah on the topic, he responds to a Rabbi of a community where they had planted trees next to the Shule without his knowledge. The Rabbi asked the Maharam Shik whether he should arrange to cut them down.
The questioner references a similar incident in Serdehali where trees were planted in the courtyard of the Shule and that the G-d-fearing scholars sent people at night to uproot them.
Maharam Shik asserts that even though the prohibition seems to be on the planting, where they were planted in a forbidden manner, it would also be forbidden to leave them up as well. We find a similar case in the laws of Kilayim or grafted trees. Whilst the prohibition is on the act of planting or grafting seeds, it is forbidden to be Mekayem (keep) the growth as well.
Certainly, in this case, based on the rationale of the Mitzvah, the prohibition is related not just to planting, but to having the trees up. Therefore, one must uproot the trees so as to minimise the prohibition.
Even though the Rambam permits planting of trees on Har Habayis, the Shule (which has less Kedusha than the Har Habayis) is considered like being “next to the Mizbeach” because (unlike Har Habayis) it is the place of prayer - which was instituted to replace the Korbanos.
He concludes that based on the above reasons, they should certainly uproot the trees and that the community will certainly agree to fulfil this Mitzvah and will be blessed as a result.
One of the noted Poskim who rejected the ruling of Rabbi Akiva Eiger was the Maharsham[18].
One of the main arguments that the Maharsham raises against the application against applying לא תטע to a Shule is that the prohibition in the Beis Hamikdash applied not only to planting trees, but also to building wooden structures (as discussed above). Even a structure that was up for 2 days would be considered Kavua and violate this law[19].
If we compare the Shule to the Beis Hamikdash for the prohibition of planting trees, we would also have to forbid building Shules out of wood or furniture such as the Aron Kodesh, Bimah and seating out of wood.
Yet many Shules were historically built out of wood and it is widespread practise throughout the Jewish world to use wood for seating and for structures such as the Aron Kodesh or Bimah[20] and no one has ever questioned it. This must be because we do not compare a Shule to the Beis Hamikdash in relation to לא תטע.
In truth, Rabbi Dovid Armaah himself addressed this question. He explains that the Biblical prohibition in the Beis Hmikdash only applied to planting. Building wooden structures in the Beis Hamikdash was only a Rabbinic prohibition. Therefore, when extending the prohibition of לא תטע to a Shule, the sages applied the prohibition of planting trees, but did not extend it to building wooden structure.
In his Teshuva, the Maharsham shares the following Teshuvah from Rabbi Yosef of Trani[21]. The Shule burned down in a particular community. Lacking the funds to rebuild it, they planted a garden and fruit trees next to the courtyard of the Shule and put up a bench where people could gather and eat on Shabbos “as we find next to other Shules”.
The discussion on the Teshuvah only revolves around whether it was appropriate to socialise and drink in. There is no mention of any issue of לא תטע and it highlights that having trees next to a Shule was commonplace. This Teshuvah is quoted in the Magen Avraham[22] who also writes that it was commonplace to plant gardens next a Shule[23].
Another argument is that according to the Rambam, one would be allowed to plant trees on Har Habayis. Only the Azarah is forbidden. Har Habayis certainly has greater sanctitiy that our Shules and certainly their courtyards. so our Shules should not be treated more stringently[24].
Another one of the Rabbis who rules leniently is Rabbi Yaakov Ettlinger, author of the Aruch Laner[25]. The case at hand was a Shule that purchased a garden next to the courtyard of the Shule to enlarge it. In the garden was a nut tree which they wanted to remove. The question related to the Torah prohibition of cutting down a fruit tree.
Rabbi Ettlinger responded that even though one may not cut down a fruit tree, it may be done for the sake of a Mitzvah. However, he writes that there is no Mitzvah in this case. He asserts that the Shule should not be stricter than Har Habayis where even according those who forbid planting trees on Har Habayis, would allow trees to be planted outside of the gates. Further, prohibition does not apply to trees that were pre-existing.
After asserting that no prohibition applies to a Shule, he writes that if we were to adopt this as a stringency, it would result in a certain Biblical prohibition by cutting down fruit-bearing trees where there is no real Mitzvah to remove them. He did not permit the tree to be cut down even by a non-Jew.
The Netziv[26] also writes that we do not compare the Shule to a the Beis Hamikdash in all regards.
Based on our discussion, when designing or building a new Shule, it would be preferable to not plant trees next to the Shule in deference to the stricter authority. One would not need to protest against those Shules who do have trees planted outside relying on the lenient approach and it would not be necessary to cut them down once planted already, especially if they are fruit or nut-bearing trees.
Even when adopting the stricter opinion, it would only apply to the courtyard of the Shule, but not in the street or a garden that adjoins the courtyard. If a Shule sits on a large campus (such as the Yeshivah), one would only have to be careful in close-enough proximity to the Shule that it would look like the tree was planted to be a decoration for the Shule[27].
The Poskim also write that any prohibition would only relate to trees that are tall enough to provide shade or protection. It would not include flowers, bushes or hedges[28].
Even according to the lenient opinions, this would only apply to the courtyard of the Shule. In the Shule may be more similar to the courtyard of the Beis Hamikdash and have more basis to be strict[29].
This discussion only relates to the prohibition of לא תטע. If non-Jews were to plant trees next to their places of worship nowadays as a customary practice, we would be forbidden to copy them based on a different Mitzvah of בחוקותיהם לא תלכו.[30]
Whilst there is debate in relation to trees on whether we compare our Shules to the Beis Hamikdash, in other areas there is absolute consensus that we do treat our Shules like we would the Beis Hamikdash. One of these is the awe and respect[31] that we must demonstrate for our Shules. This governs our behaviour in Shule and includes the avoidance of idle chatter.
Through respecting the Mikdash Me’at, may we merit the return of the Mikdash Gadol – the Beis Hamikdash Hashlishi in Yerushalaim with the coming of Moshiach.
________________________
[1] Devarim 16:21
[2] According to the Raavad it is only applicable in the Ezras Kohanim which was where the Mizbeach was situated
[3] Rambam Hilchos Avodah Zarah 6:9, Sefer Hachinuch Mitzvah 414
[4] This is also the opinion the Yere’im
[5] Sefer Hamitzvos negative Mitzvah 13
[6] Rambam Hilchos Avodah Zarah 6:9
[7] This view is supported by the Sifri. Rashi on the chumash
[8] Orach Chaim Siman 106:1
[9] 11:15
[10] Megillah 29a
[11] See Beis Yosef end of Siman 151. See Maharik Shoresh 161
[12] Shulchan Aruch OC
[13] Shulchan Aruch YD 252
[14] Megillah 3:3, Shulchan Aruch 151:5
[15] Shulchan Aruch OC 153:21. The Levush does not bring this ruling – see Elya Rabbah
[16] OC 78 and 79
[17] Siman 78
[18] Orach Chaim Siman 5
[19] Based on the Yerushalmi that the reason Hakhel is delayed when it occurs on Shabbos is for the Bimah to be constructed. It could not be built before Yomtov because then it would remain in the Azarah for 2 days.
[20] The Gemara discusses the wooden Bimah in the great Shule of Alexandria
[21] Maharit Sheniyos YD Siman 4
[22] Beginning of Siman 154
[23] The stricter authorities would argue that the garden adjacent to the Shule courtyard has a different status and the prohibition remains applicable in the courtyard itself
[24] In last week’s edition we presented an answer to this challenge
[25] Binyan Tzion Siman 9
[26] Meishiv Davar Siman 14
[27] Har Tzvi OC Siman 74
[28] Shu”t Kinyan Torah 4:14
[29] See Keren Ledovid OC Siman 9
[30] See Maharsham Siman 5, Keren Ledovid OC Siman 9
[31] The Yere’im (Eliezer of Mitz) Mitzvah 409 writes that the awe of a Shule is a Biblical requirement and disrespectful behaviour would be a Biblical violation!
We are forbidden from planting any tree in the Beis Hamikdash or near the Mizbeach. The prohibition applies anywhere in the Azarah[2] and applies to all types of trees, whether they are fruit-bearing or not[3]. According to Rashi and Ramban, the prohibition applies to entire Har Habayis[4].
In Sefer Hamitzvos, the Rambam[5] explains that the reason for this Mitzvah is to distance us from Avodah Zarah and its practices. Idolaters would beautify their houses of idol worship by planting trees. These trees also directed people to where to gather[6]. Asherah was a tree that was worshipped and placed next to places of worship by the Canaanites in Biblical times.
From the additional phrase כל עץ, “any tree”, the sages derive that even building wooden structures, such as a portico, is forbidden in the Beis Hamikdash. There is a debate between the Rishonim whether this extension of the prohibition is also Biblical[7] or is only a Rabbinic law.
In almost all classic Halachic literature; the Talmud, Rambam and the Halachic codes including the Shulchan Aruch, there is no suggestion that this prohibition may also apply to planting trees next to a Shule.
However, in a gloss on the Shulchan Aruch[8], Rabbi Akiva Eiger writes in the name of the commentary of Rabbi Dovid Armaah on the Rambam, that it as a Rabbinic extension of this Mitzvah, it is forbidden to plant trees in the courtyard of a Shule as well. This is the only early source that applies the prohibition to a Shule.
This ruling is discussed and debated by the later Poskim, some dismissing it and others accepting it.
Underpinning this extension is the association of a Shule to the Beis Hamikdash. The Novi Yechezkel[9] refers to a concept of a Mikdash Me’at – a micro-sanctuary. The sages[10] explain that this refers to Shules and Batei Midrash.
From this comparison, we derive that many Halachos from the Beis Hamikdash apply to a Shule as well[11] such as; the requirement that the Shule be built as the tallest structure in the town[12], that one may not destroy or even remove stones from a Shule[13], one may not use a Shule as a shortcut[14] and that one may not use funds from harlot’s fee in the building of a Shule[15].
The question is how far do we take this association and in relation to which laws.
One of the great Poskim who accepted and strengthened this prohibition was the Maharam Shik, who has two Teshuvos on this topic[16].
In the first Teshuvah dated 1873, Maharam Shik[17] was asked about planting trees next to a Shule for beauty and to provide shade and shelter from the elements.
He writes that based on the rationale of the Mitzvah as described by the Rambam and Ramban, that it is to avoid emulating the idolaters who planted trees next to their houses of worship, the same logic would apply to a Shule.
He gives a further, pragmatic reason to not plant trees next to a Shule as they will result in people hanging-out outside and not coming into Shule at the time of Davening (Kiddush club?) or Shiurim. There is also the concern that it may lead to mingling of men and women.
In a second Teshuvah on the topic, he responds to a Rabbi of a community where they had planted trees next to the Shule without his knowledge. The Rabbi asked the Maharam Shik whether he should arrange to cut them down.
The questioner references a similar incident in Serdehali where trees were planted in the courtyard of the Shule and that the G-d-fearing scholars sent people at night to uproot them.
Maharam Shik asserts that even though the prohibition seems to be on the planting, where they were planted in a forbidden manner, it would also be forbidden to leave them up as well. We find a similar case in the laws of Kilayim or grafted trees. Whilst the prohibition is on the act of planting or grafting seeds, it is forbidden to be Mekayem (keep) the growth as well.
Certainly, in this case, based on the rationale of the Mitzvah, the prohibition is related not just to planting, but to having the trees up. Therefore, one must uproot the trees so as to minimise the prohibition.
Even though the Rambam permits planting of trees on Har Habayis, the Shule (which has less Kedusha than the Har Habayis) is considered like being “next to the Mizbeach” because (unlike Har Habayis) it is the place of prayer - which was instituted to replace the Korbanos.
He concludes that based on the above reasons, they should certainly uproot the trees and that the community will certainly agree to fulfil this Mitzvah and will be blessed as a result.
One of the noted Poskim who rejected the ruling of Rabbi Akiva Eiger was the Maharsham[18].
One of the main arguments that the Maharsham raises against the application against applying לא תטע to a Shule is that the prohibition in the Beis Hamikdash applied not only to planting trees, but also to building wooden structures (as discussed above). Even a structure that was up for 2 days would be considered Kavua and violate this law[19].
If we compare the Shule to the Beis Hamikdash for the prohibition of planting trees, we would also have to forbid building Shules out of wood or furniture such as the Aron Kodesh, Bimah and seating out of wood.
Yet many Shules were historically built out of wood and it is widespread practise throughout the Jewish world to use wood for seating and for structures such as the Aron Kodesh or Bimah[20] and no one has ever questioned it. This must be because we do not compare a Shule to the Beis Hamikdash in relation to לא תטע.
In truth, Rabbi Dovid Armaah himself addressed this question. He explains that the Biblical prohibition in the Beis Hmikdash only applied to planting. Building wooden structures in the Beis Hamikdash was only a Rabbinic prohibition. Therefore, when extending the prohibition of לא תטע to a Shule, the sages applied the prohibition of planting trees, but did not extend it to building wooden structure.
In his Teshuva, the Maharsham shares the following Teshuvah from Rabbi Yosef of Trani[21]. The Shule burned down in a particular community. Lacking the funds to rebuild it, they planted a garden and fruit trees next to the courtyard of the Shule and put up a bench where people could gather and eat on Shabbos “as we find next to other Shules”.
The discussion on the Teshuvah only revolves around whether it was appropriate to socialise and drink in. There is no mention of any issue of לא תטע and it highlights that having trees next to a Shule was commonplace. This Teshuvah is quoted in the Magen Avraham[22] who also writes that it was commonplace to plant gardens next a Shule[23].
Another argument is that according to the Rambam, one would be allowed to plant trees on Har Habayis. Only the Azarah is forbidden. Har Habayis certainly has greater sanctitiy that our Shules and certainly their courtyards. so our Shules should not be treated more stringently[24].
Another one of the Rabbis who rules leniently is Rabbi Yaakov Ettlinger, author of the Aruch Laner[25]. The case at hand was a Shule that purchased a garden next to the courtyard of the Shule to enlarge it. In the garden was a nut tree which they wanted to remove. The question related to the Torah prohibition of cutting down a fruit tree.
Rabbi Ettlinger responded that even though one may not cut down a fruit tree, it may be done for the sake of a Mitzvah. However, he writes that there is no Mitzvah in this case. He asserts that the Shule should not be stricter than Har Habayis where even according those who forbid planting trees on Har Habayis, would allow trees to be planted outside of the gates. Further, prohibition does not apply to trees that were pre-existing.
After asserting that no prohibition applies to a Shule, he writes that if we were to adopt this as a stringency, it would result in a certain Biblical prohibition by cutting down fruit-bearing trees where there is no real Mitzvah to remove them. He did not permit the tree to be cut down even by a non-Jew.
The Netziv[26] also writes that we do not compare the Shule to a the Beis Hamikdash in all regards.
Based on our discussion, when designing or building a new Shule, it would be preferable to not plant trees next to the Shule in deference to the stricter authority. One would not need to protest against those Shules who do have trees planted outside relying on the lenient approach and it would not be necessary to cut them down once planted already, especially if they are fruit or nut-bearing trees.
Even when adopting the stricter opinion, it would only apply to the courtyard of the Shule, but not in the street or a garden that adjoins the courtyard. If a Shule sits on a large campus (such as the Yeshivah), one would only have to be careful in close-enough proximity to the Shule that it would look like the tree was planted to be a decoration for the Shule[27].
The Poskim also write that any prohibition would only relate to trees that are tall enough to provide shade or protection. It would not include flowers, bushes or hedges[28].
Even according to the lenient opinions, this would only apply to the courtyard of the Shule. In the Shule may be more similar to the courtyard of the Beis Hamikdash and have more basis to be strict[29].
This discussion only relates to the prohibition of לא תטע. If non-Jews were to plant trees next to their places of worship nowadays as a customary practice, we would be forbidden to copy them based on a different Mitzvah of בחוקותיהם לא תלכו.[30]
Whilst there is debate in relation to trees on whether we compare our Shules to the Beis Hamikdash, in other areas there is absolute consensus that we do treat our Shules like we would the Beis Hamikdash. One of these is the awe and respect[31] that we must demonstrate for our Shules. This governs our behaviour in Shule and includes the avoidance of idle chatter.
Through respecting the Mikdash Me’at, may we merit the return of the Mikdash Gadol – the Beis Hamikdash Hashlishi in Yerushalaim with the coming of Moshiach.
________________________
[1] Devarim 16:21
[2] According to the Raavad it is only applicable in the Ezras Kohanim which was where the Mizbeach was situated
[3] Rambam Hilchos Avodah Zarah 6:9, Sefer Hachinuch Mitzvah 414
[4] This is also the opinion the Yere’im
[5] Sefer Hamitzvos negative Mitzvah 13
[6] Rambam Hilchos Avodah Zarah 6:9
[7] This view is supported by the Sifri. Rashi on the chumash
[8] Orach Chaim Siman 106:1
[9] 11:15
[10] Megillah 29a
[11] See Beis Yosef end of Siman 151. See Maharik Shoresh 161
[12] Shulchan Aruch OC
[13] Shulchan Aruch YD 252
[14] Megillah 3:3, Shulchan Aruch 151:5
[15] Shulchan Aruch OC 153:21. The Levush does not bring this ruling – see Elya Rabbah
[16] OC 78 and 79
[17] Siman 78
[18] Orach Chaim Siman 5
[19] Based on the Yerushalmi that the reason Hakhel is delayed when it occurs on Shabbos is for the Bimah to be constructed. It could not be built before Yomtov because then it would remain in the Azarah for 2 days.
[20] The Gemara discusses the wooden Bimah in the great Shule of Alexandria
[21] Maharit Sheniyos YD Siman 4
[22] Beginning of Siman 154
[23] The stricter authorities would argue that the garden adjacent to the Shule courtyard has a different status and the prohibition remains applicable in the courtyard itself
[24] In last week’s edition we presented an answer to this challenge
[25] Binyan Tzion Siman 9
[26] Meishiv Davar Siman 14
[27] Har Tzvi OC Siman 74
[28] Shu”t Kinyan Torah 4:14
[29] See Keren Ledovid OC Siman 9
[30] See Maharsham Siman 5, Keren Ledovid OC Siman 9
[31] The Yere’im (Eliezer of Mitz) Mitzvah 409 writes that the awe of a Shule is a Biblical requirement and disrespectful behaviour would be a Biblical violation!