Are There Leniencies Regarding Music During The Three Weeks In A Pandemic?

Dear JITC-

I’ve already been experiencing a very hard time with lockdown. Not listening to music during the three weeks seems daunting from a mental health perspective. Is there any leniency in that regard considering the state of the world?

Thanks,
Tsippy

Dear Tsippy-

I hesitate to answer this question because it strays dangerously close to poskining a shaila (ruling in a matter of Jewish law). Aside from the fact that such is above my paygrade, I am a firm believer that shailos are best addressed to one’s own rabbi rather than strangers on the Internet. Additionally, the danger exists that, even if there were reason to be lenient in your particular circumstances, others who are not in the same boat might misapply the leniency to themselves. So we won’t be addressing your particular situation. Rather, we’ll just address the question of music during the Three Weeks in general.

I’m a big proponent of the idea that there’s usually not just one way to do things. There are very few situations where only A is right and B is necessarily wrong. The idea of listening to recorded music during the Three Weeks is one of those few cases where I think that, generally speaking, those who are lenient are just wrong. (I’ll explain shortly why that is.)

The logic underlying the supposed leniency is, “Recordings didn’t exist when this rule was made, so they couldn’t have been included.” There’s a substantive difference between a man listening to a woman sing on a recording – which may be a reason to be lenient – and listening to recorded music during the Three Weeks, which might not be. The prohibition of kol isha requires the presence and participation of a live woman, which is lacking on LP, CD or MP3. But during the Three Weeks? These things are undeniably music. (If we were to accept the logic of “didn’t exist yet so couldn’t have been included in the prohibition,” then the same should apply to all modern instruments, electric or acoustic, even when performed live. To my knowledge, no one has ever suggested such a thing.)

It is true that the Chelkas Yaakov (1:62) does differentiate between recorded and live music in the manner described above. However, he seems to do so only in the context of refraining from music year-round.[1] Neither Rav Moshe Feinstein (Iggros Moshe OC 1:166 and 3:87; YD II 137:2) nor Rav Ovadia Yosef (Yechaveh Daas 6:34) agrees with this leniency when it comes to days on which music is particularly excluded, like sefirah, the Three Weeks or during mourning.

Allow me to explain the prohibition against listening to music year-round. Talmud Brachos (31a) cites a verse referring to our future redemption: “Then our mouths will be filled with laughter and our lips with joy” (Psalms 126:2). Rabbi Shimon bar Yochai explains that then our mouths will be filled with joy, but not now. For this reason, we temper our joys with reminders of the Temple, which is still in ruins. The most well-known of these is no doubt the practice to break a glass under the chuppah at a wedding.

The gemara in Gittin (7a) says that music was prohibited altogether after the destruction of the Temple. This is codified as law in both the Rambam (Taaniyos 5:14) and the Shulchan Aruch (OC 560:3). The Rema, however, rules like the opinion of Tosfos, only prohibiting music at feasts where wine is being served. Our common practice is to be lenient like the Rema, but there are those who are stringent. (There is a practice – though, based on reader feedback, apparently not universally observed – for Jerusalem weddings not to have bands, only drummers!) For this reason, there’s not a lot written in earliest codes about prohibiting music during sefirah or the Three Weeks, because music was considered prohibited year-round. The halachic consensus, however, is that our usual leniencies do not apply during these mourning periods. (See, for example, Magen Avraham 10 on OC 551:2.)

Getting back to the question of recorded music during the Three Weeks, I’m not saying that absolutely no authority permits it but the halachic consensus is certainly not that way. In my anecdotal experience, the overwhelming number of people who say they rely upon this leniency cannot cite it as practical halacha in the name of any contemporary halachic authority, let alone one upon whom they rely as a matter of course. (Any talmidim of Rav Shlomo Dichovsky here?) People who follow this leniency are generally just doing what they want and attributing it after the fact to a rationale that sounds good, regardless of what their normal halachic decisors may have to say. That’s wrong. (I do not include in this critique anyone who may rely upon this leniency because their usual halachic authority actually recommends it.)

It should be noted that even the few authorities who do permit recorded music also limit it to slow, serious music appropriate to the mournful spirit of the period. Additionally, the Three Weeks are a period of intensifying mournfulness so what’s permitted at the beginning of these weeks may become prohibited during the Nine Days or during the week in which Tisha b’Av falls. Something that is permitted “during the Three Weeks” may not be permitted for the entire Three Weeks.

Some (though not all) authorities permit live a cappella music. Ironically, in this case, there is reason to be more stringent in the case of recordings! First of all, as with kol isha, recorded a cappella singing ceases to be “voices” and is just “music,” like any other recording. Additionally, a cappella CDs and videos are generally not pure recordings of voices. They are electronically enhanced, which again moves them from the category of “voices” to “music.”

Circumstances in which music would be permitted during the Three Weeks include one who plays or teaches music for a living, students who are practicing their music lessons, children’s camps which would be more chaotic without the assistance of music, and sleepy drivers who are worried about falling asleep at the wheel. Being sad without music is not a reason to be lenient because creating a mournful environment is the entire reason for the prohibition. But what if one has a legitimate mental-health concern?

Judaism has a standing rule that health concerns – including mental-health concerns – override almost all prohibitions. There are, however, parameters with certain limits. Allow me to illustrate with a real-life example. I once heard a student in a college disabilities office complaining that he couldn’t get a pass for the campus shuttle. When asked what his disability was, the student said ADD. The disabilities officer had to explain that the accommodation this student was seeking wasn’t an accommodation for his particular disability. Similarly, some conditions might permit one to eat on Yom Kippur but an earache wouldn’t. Some injuries might justify driving to the ER on Shabbos but foot fungus is not among them. The same is true of mental-health matters. Just saying “mental-health reasons” is too broad a stroke; it depends on the details.

Would your personal scenario call for leniency when it comes to music in the Three Weeks? Maybe, but that’s not my call to make. You should contact your own rabbi, or a recognized authority, and share the details of your situation. Even if there’s a reason for you to be lenient, that’s not carte blanche for others to follow your example; it would be an exception made because of your particular set of circumstances alone. Others’ mileage may vary.

Personally, I think that if one has a real need, it should be possible to get a legitimate heter, especially since some authorities – no matter how few – do actually rule this way. That’s definitely preferable to just doing whatever one wants and hoping that it’s in compliance with halacha.

If someone is legitimately able to endure the Three Weeks without music – as most of us are – then it’s certainly better not to rely unnecessarily on leniencies. As the gemara in Taanis (30b) tells us, all those who mourn for the destruction of Jerusalem will ultimately merit to rejoice in its rebuilding.

IMPORTANT ADDENDUM: In between the time in which I wrote this and the time it was posted, Rabbi Hershel Schachter released a statement saying that “one would be allowed to listen to music if they felt it was needed to help assuage their personal feelings of anxiety or depression,” particularly in these trying times. Unlike me, Rabbi Schachter is absolutely at a “pay grade” to make such a statement. Nevertheless, I caution readers to be intellectually honest in determining whether they need to rely on this leniency. Conversely, one shouldn’t be “too frum” to rely on such a leniency if he or she actually needs it.

Sincerely,
Rabbi Jack Abramowitz
Educational Correspondent
Follow Ask Rabbi Jack on YouTube

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[1] I generally like to look up all sources in the original but I don’t have access to the Chelkas Yaakov. Most of the secondary sources describe the Chelkas Yaakov’s leniency as applying only to music year-round; one source, however, says that it applies during the Three Weeks until the first of Av. If such is the case, and someone has a copy of the teshuvah, please share it so that we can correct this article. Even if such is the case, however, please note that the leniency still doesn’t apply to the Nine Days.

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