In the beginning of this week’s parshah, the Torah warns us against planting trees adjacent to the Mizbeiach: “lo sita l’cha asheirah kol eitz eitzel mizbach Hashem” (Devarim 16:21). Rashi explains that this prohibition applies not only to the area adjacent to the Mizbeiach, but to the entire Har HaBayis. The Rambam (Hilchos Avodah Zarah 6:9) and the Ramban (in his commentary on this pasuk) argue that the prohibition to plant trees only applies to the area adjacent to the Mizbeiach and the azarah (courtyard); the rest of Har HaBayis is not included in the prohibition.
Rav Akiva Eiger, in his commentary on the Shulchan Aruch (Orach Chayim 150), quotes, and agrees with, R’ Arma’ah who says there is a rabbinic prohibition against planting trees adjacent to a shul. In contrast, the Netziv (in Teshuvos Meishiv Davar) and Binyan Tzion (1:9) maintain that planting trees next to a shul is permitted. They believe the prohibition only extends to the Beis Hamikdash, which has greater kedushah than a shul.
One simple explanation of this dispute is as follows: Rav Akiva Eiger and R’ Arma’ah equate the kedushah of a shul – on some level – to that of the Beis Hamikdash (this fact is evident in other places of halacha). The Netziv and Binyan Tzion, however, maintain that a shul is on a lower level of kedushah than the Beis Hamikdash, and the prohibition against planting trees therefore doesn’t apply to it.
The sefer Harirei Kedem suggests an alternative solution. Perhaps the Netziv and the Binyan Tzion agree that a shul’s level of kedushah is indeed great enough to prohibit planting trees in it. Its courtyard, though, is a separate entity – one which doesn’t possess kedushah. (Indeed, the Mishnah Berurah [154:3] cites the Maharit [2:4], who that says the garden of a shul possesses no kedushah.) Therefore, one may plant trees in it. It’s true that the courtyard of the Beis Hamikdash did possess kedushah, but we cannot compare the two courtyards since the place of the entire Beis Hamikdash was chosen and made kadosh by Hashem.
When I first encountered this explanation, I took issue with it. For even if a shul’s courtyard does not possess kedushah, planting in it could still be prohibited. The prohibition of planting a tree next to a shul is derived from the prohibition of planting a tree next to the Mizbeiach. It is not at all evident that the place next to the Mizbeiach needs to be kadosh for the prohibition to be in effect. For example, if a flowerpot (with no holes in it) was magically suspended in the air adjacent to the Mezbeiach, I believe planting in it would be prohibited even though the flowerpot is clearly not kadosh. The same, therefore, should be true of the area next to the shul. It should be prohibited to plant there even if the area possesses no kedushah.
I called the author of the sefer Harirei Kedem, my rebbe, Rabbi Shurkin, and he immediately responded that the prohibition of planting next to the Mizbeiach is definitely dependent on the kedushah of the area.
As proof, he cited a machlokes Rishonim whether the prohibition applies only in the azarah or if it extends throughout the entire Har Habayis. According to the Rishonim who opine that the prohibition only applies to the azarah, there are places on Har Habayis that are closer to the Mizbeiach than the furthest parts of the azarah. And yet, one may plant in those places, but not in the azarah. This proves that “proximity” is determined solely based on the kedushah of the area, not geographical distance.
Thus, the explanation given by the Harirei Kedem that the Netziv and the Binyan Tzion maintain that it is permitted to plant next to a shul because it possesses no kedushah remains sound.