Volume 62 Number 91
Produced: Fri, 27 May 16 12:27:51 -0400
Subjects Discussed In This Issue:
"Kinyan" in the Context of Marriage
[Saul Mashbaum]
Forbidden relationships (was Concubinage Relationship)
[Perets Mett]
Homosexuality (2)
[Martin Stern Martin Stern]
Some Thoughts on An'im Zemirot (2)
[Dr Russell Jay Hendel Dr Russell Jay Hendel]
Specific or General Prohibition
[Martin Stern]
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From: Saul Mashbaum <saul.mashbaum@...>
Date: Thu, May 26,2016 at 03:01 PM
Subject: "Kinyan" in the Context of Marriage
When we go to a Rabbi to sell our chametz, he usually makes a "kinyan" with us.
Some think that by this act, the Rabbi is purchasing our chametz. This is
erroneous; the Rabbi is selling chametz to a non-Jew on our behalf, as our
agent; he of course has no interest in purchasing our chametz himself at this
point. What, then, does the "kinyan" accomplish? What is being purchased by this
kinyan? Surely not the Rabbi :).
It is clear than this kinyan makes binding our agreement that the Rabbi act as
our agent. Although strictly a verbal agreement may suffice, and signing a
document to that effect is even better, a "kinyan" in addition to the above is
preferable. This illustrates that a kinyan is an act which finalizes an
agreement; in this case, by virtue of the kinyan, the Rabbi is empowered to act
on our behalf. This is the kind of kinyan "kinyan kiddushin" is " a formal act
which makes a verbal agreement binding. Nothing is being purchased.
At a wedding, after the ketuba is filled out, the chatan makes a kinyan on the
terms of the ketuba. This fact is written in the ketuba itself ("ve-kanina
minei"). What exactly is the chatan purchasing by this kinyan? It is indeed not
a purchase of a tangible object; rather, this kinyan makes the monetary and
other obligations set forth in the ketuba binding. Again, this kinyan is not a
matter of buyer, seller, and transfer of ownership, but of making financial
obligations binding.
The Torah sets forth the degree of responsibility a guardian has for the object
he is entrusted with, if it is lost, stolen, damaged, etc. The Sages learned
that some categories of objects are outside the range of responsibility of the
guardian entirely. The gemara says that nevertheless, a guardian may agree to
accept responsibility for damages to things strictly not subject to the laws of
guardianship. This agreement may be made binding when "kana mi-yado", a kinyan
was made on this arrangement (See SA ChM 301:4). Here is another example of a
kinyan which does not involve purchase of a tangible object.
There are many other examples of kinyanim in halacha like those described above.
However I am convinced that these suffice to demonstrate that the kinyan made in
the course of kiddushin is not a "purchase". Much ink has been spilled, and many
quills broken, in explaining the "purchase" of the bride by the groom (and for a
trifling sum, no less), when in fact in this case no purchase in the
usual sense of the word takes place at all.
Saul Mashbaum
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From: Perets Mett <p.mett00@...>
Date: Thu, May 26,2016 at 01:01 AM
Subject: Forbidden relationships (was Concubinage Relationship)
Russell Hendel wrote (MJ 62#90):
> Susan seems to indicate that there are ways a Mamzer (illegitimate) can live
> with a Shifchah Kena'anit (non-Jewish female slave). I don't see that any place
> in the Rambam (Since this is new I would be happy to answer it if there are
> sources).
The reference is Isurei Bio 15:4
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From: Martin Stern <md.stern@...>
Date: Wed, May 25,2016 at 02:01 PM
Subject: Homosexuality
Lisa Liel wrote (MJ 62#90):
> Martin Stern wrote (MJ 62#89):
>
>> Unfortunately some Jewish persons, mainly Reform et al. but also those of
>> the "gay Orthodox" persuasion, try to make this argument.
>
> Not all of us. That's an argument that's been put forward by Steve Greenberg,
> the so-called "first openly gay Orthodox [sic] rabbi". Labeling his faulty
> reasoning as the view of gay and lesbian Orthodox Jews simply empowers him and
> his ilk.
My apologies for giving this impression. I had intended the word "some" at
the beginning of the sentence to cover the latter. Perhaps I should have
inserted "some of" between "also" and "those" to have made this entirely
clear.
> No one who takes the Torah and halakha seriously disputes the fact that the
> prohibition of mishkav zachor in the Torah is a prohibition of male-male anal
> sex -- period.
This was a point I made in my original submission (MJ 62#87) where I wrote:
>> Of course none of the above applies to those who claim to have innate
>> homosexual desires, any more than would love of close family members, only to
>> those who express them through forbidden activities (mishkevei ishah).
I deliberately used the title "Homosexual practices" there, rather than
"Homosexuality", for precisely this reason.
Martin Stern
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From: Martin Stern <md.stern@...>
Date: Wed, May 25,2016 at 04:01 PM
Subject: Homosexuality
Dr Russell Jay Hendel wrote (MJ 62#90) in response to me (MJ 62#89):
> The Anglican theologian's suggestion, which he is trying to counter, seems to
> be that the three prohibitions
>
> i) passing your children through fire
>
> ii) male homosexual relations
>
> iii) female bestiality
>
> form a new paragraph with some other theme: idolatrous vs. sexual.
I find Dr Hendel's restriction of the prohibition of bestiality to females
somewhat perplexing. As far as I can see Lev. 18:23 refers quite clearly to
both males (first half of the verse) and females (second half of the verse)
having sexual relations with an animal. Perhaps I have completely
misunderstood the passage. Can anyone enlighten me on why it only refers to
females?
Martin Stern
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From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Sun, May 22,2016 at 04:01 PM
Subject: Some Thoughts on An'im Zemirot
Rabbi Dr. Aryeh Frimer (MJ 62#88) makes 2 comments on the issue of female minors
leading An'im Zemiroth with which I disagree. But first let me mention two
comments on which we agree (It is very important when having a dispute to
acknowledge commonality):
#1) Rabbi Frimer states:
> it has been a bit nostalgic to interact again with many of the same
> individuals who made contributions to Mail-Jewish more than 25 years ago!
I agree. Actually Rabbi Frimer and I go back further. He was the Rabbi at
Harvard Hillel when I was going to M.I.T. and I do remember both leining (very
rarely) for Harvard Hillel as well as attending his shiurim.
#2) The other thing I wish to agree with is that women should not get aliyot nor
read the Torah. Both I and Rabbi Frimer agree because of what the Talmud calls
'the honor of the congregation.' I point out that Rabbi Frimer and I explain
this very elusive concept somewhat differently but since his explanation is
consistent with the majority of the Posekim I am willing to work with it.
Rabbi Frimer explains one approach on 'honor of the community' as follows:
> The second, Zilzul ha-Mitsva, [disparaging or belittling ones halakhic
> obligation] school maintains that the men, who are obligated in keri'at
> (reading the) ha-Torah, should be the ones fulfilling the mitsva - not those
> that are not obligated. To act otherwise reveals that one does not value
> their mitzva obligations - reflecting zilzul ha-mitsva.
I (MJ 62#83) however explained 'honor of the community' in terms of embarrassment.
> It is not clear what "honor of the congregation" refers to. However, one
> possible explanation is that it is embarrassing, for example, if a man cannot
> read the Torah and his wife has to do it for him. This embarrassment is
> phrased as a lack of honor.
I point out that my primary strength (as Rabbi Frimer acknowledged) is in clear
legal analysis. I certainly wish I knew sources better. Rabbi Frimer's
Tradition article certainly has many interesting sources and if I still disagree
they should be addressed. As pointed out, I am perfectly comfortable 'switching
gears' and using Rabbi Frimer's mainstream definition of 'honor of the
community' as 'disparaging or belittling one's halakhic obligations'.
Let me now turn to the items I disagree with in Rabbi Frimer's posting. For
purposes of expositional clarity I prefer dealing with female minors leading
Kabbalat Shabbat rather than An'im Zemirot. My reasons for this are as follows:
First the ark is opened during An'im Zemirot perhaps giving this song more
respect than it should get. Secondly, Kabbalat Shabbat has no shmoneh esray
connected in the service so it is easier to discuss it than An'im Zemirot which
comes at the end of a double shmoneh esray service.
#A) Modesty considerations.
Rabbi Frimer explains modesty requirements as follows:
> The synagogue is the one place that we try to sanctify our thoughts, and we
> make particular efforts to avoid all sexual distraction. The concern here is
> for unnecessarily being at the center of communal (not private) religious
> ritual.
To disagree with this I cite the two opposing opinions on the height
requirements for a Mechitzah and their associated reasons:
i) A Mechitzah must be 6 feet tall so that women cannot be seen. In other words
Mechitzah prevents visibility. Certainly, then a synagogue which uses 6 feet
Mechitzahs can rightfully object to allowing female minors to lead because they
would be visible.
ii) A Mechitzah must be 40 inches (3' 4", about waist high). Here the Mechitzah
is simply a symbolic border but it does not prevent visibility. A synagogue that
uses 40 inch mechitzahs therefore, need not be concerned if female minors (or
adults) are on the Bimah since the issue is borders rather than visibility. As a
simple example, there is nothing wrong, provided the mechitzahs are 40 inches,
with a woman getting on the Bimah and making announcements after service.
(Although the woman is no longer behind the mechitzah, by having a 40 inch
mechitzah, the shule states its position that visibility is not an issue and as
long as the woman has some natural border (such as the Bimah height) this is OK)
#B) Rabbi Frimer states (for example about female minors leading Kabbalat
Shabbat):
> The zilzul ha-mitsva view of kevod ha-tsibbur maintains that since it is the
> men who are obligated in public prayer rituals, they should be the ones
> fulfilling them - not women who are not at all obligated. To have women lead
> the community in fulfilling these communal rituals and obligations would
> reveal that the men-folk do not value their communal responsibilities and
> obligations, and that is a serious issue of zilzul or bizyon ha-mitsva ...
> The source and nature of these communal rituals and obligations is not
> critical, argue these posekim.
Here is the strongest place I disagree with the Posekim that Rabbi Frimer cites.
a) Kabbalat Shabbath is *not* a communal service. There is no prayer of sanctity
which requires 10 males. True, it is said in a synagogue but it doesn't have a
status of 'communal'
b) As previously discussed (MJ 62#85-86) women **are** biblically obligated to
pray according to all authorities. This is fundamentally different from, say,
reading the Torah. Women are not obligated to learn (though they receive reward
if they do); women are obligated to pray. Since they are obligated to pray there
is definitely a requirement of Hinuch.
c) The particular aspect of prayer discussed here is 'praise'. Women excel over
men in praise. For example the Talmud Berachot (31a) learns the laws of prayer
from Hannah not King David. Other examples of women 'leading' in song are
Devorah (Jud. 5) and Miryam (Shirat Yam Suf).
Let me put it this way, would Rabbi Frimer, or the Posekim he cites, object to
women leading men in a prayer at home (Say a few couples get together for
Shabbat dinner and the women lead in Kabbalat Shabbat). I can't see any problem
with this. My position is that saying Kabbalat Shabbat in shule is basically the
same as saying it at home. Men are not disparaging their obligation; rather they
are learning from the expert: the women who typically surpass them in the
ability to praise.
The above arguments have been technical so let me summarize with some intuitive
arguments. If the Mechitzah of the shule is 40 inches, thereby showing that the
shule does not mind seeing women, is there any problem with a woman making
announcements after services? If 3 couples get together for a shabbat dinner is
there any disparagement in women leading the Kabbalat Shabbat. And, if not, what
is the real difference with doing this in a synagogue.
Dr. Russell Jay Hendel
Rashiyomi.com
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From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Wed, May 25,2016 at 06:01 PM
Subject: Some Thoughts on An'im Zemirot
Based on the ideas of the thread I suggested that minor boys and girls can
lead together in Anim Zemirot according to those authorities that allow
mixed singing. Martin responded (MJ 62#90):
> There may be some leniency possible if a group of minors -- boys and girls --
> are singing together, but I thought we were arguing about a single girl
> leading the congregation in An'im Zemirot.
When someone asks me a religious question, I always try and generalize it so as
to be more flexible in answering. I hear not only a question about minor girls
leading in An'im Zemirot but in participation with the service. So I suggested a
group leading. (In one of the synagogues I go to there are groups of minors (all
male) that lead in Ayn Kaylokaynu.) I think such a perspective involving
generalization is appropriate.
In making this position I based myself on the leniency that some permit males
and females to sing together if no particular female voice is singled out. I
gave as an example males and females singing Sabbath Songs together. Martin
responded:
> I think this equation is questionable. What might be acceptable in a private
> Shabbat meal may be inappropriate in the confines of a synagogue because of
> the latter's greater sanctity.
But Synagogue sanctity is not an abstract notion. It is specific. For example,
you can't eat snacks in a synagogue except at a religious function. The burden
of proof is on Martin to show that some notion of synagogue sanctity prevents
what I suggested.
Also based on ideas of the thread to date, I suggested that women could lead the
congregation if they didn't sing and if the items they were leading in were not
mainstream prayer like Shmoneh Esray or Shema. I gave as an example a woman
making synagogue announcements. Martin responded:
> This last example is quite correct but hardly relevant, since making such
> announcements has no religious significance -- even an adult woman could make
> them though, in certain circles, this would be frowned upon as contravening
> "kol kevod bat Melekh penimah". Whether it could be extended to any formal
> participation in the Sabbath service is much more controversial.
Why is it controversial? I previously gave examples of women, in one of the
synagogues I go to, leading responsively in Av Harachamim and Ashray. The
'controversy' has to be based on something. If we avoid women singing and the
prayers which have a status of holiness what is the problem. The objection of
"controversy" has to be backed by specificity.
Let me summarize: There has to be some point of dispute. To date, people have
objected to solo women singing and to women acting as cantors in prayer items
that have sanctity (Kedushah) and must be recited in a quorum of at least 10. I
know of no specific objection to the ideas that I suggested.
Dr. Russell Jay Hendel;
Rashiyomi.com
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From: Martin Stern <md.stern@...>
Date: Wed, May 25,2016 at 02:01 PM
Subject: Specific or General Prohibition
Leah S. R. Gordon wrote (MJ 62#90):
> Martin Stern wrote (MJ 62#89):
>
>> I fear that Dr Hendel has missed the point: neither I nor the Anglican
>> theologian to whom I referred were suggesting this. The point he was making
>> was that by inserting the molekh prohibition before those of sodomy and
>> bestiality, the Torah may have wanted to indicate that the latter were
>> separate in nature from the preceding transgressions (hefsek ha'inyan) and
>> were, therefore, basically idolatrous rather than sexual. My analysis was to
>> counter THIS perception.
>
> It seems to me (Leah) that our goal isn't to "counter" a perception that might
> go against random feelings, but rather to find out textually what is meant
> le'chatchila. This interpretation of your friend is intriguing to me, and
> somewhat convincing, actually. We often have cases where the Torah becomes
> more or less specific and that has implications in halakha, and we also have
> cases where the juxtaposition of mitzvot is certainly counted as significant.
Of course Leah is quite correct that such a perception of the prohibitions
in Lev. 18 might be "somewhat convincing" but my analysis was to show it was
incorrect in this case. I did so (MJ 62#87) by showing that in a parallel
text, listing the punishments (Lev. 20), the arrangement is quite different
and suggests that both sodomy and bestiality are considered primarily sexual
transgressions rather than cult practices of some avodah zarah. I also
quoted some commentators who explain why the molekh prohibition was inserted
apparently out of place in Lev. 18 in order to derive a specific lesson
rather than as a hefsek ha'inyan which could lead to this misperception.
Martin Stern
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End of Volume 62 Issue 91
