Volume 50 Number 81
                    Produced: Mon Jan  2  4:52:26 EST 2006

Subjects Discussed In This Issue: 

         [Sholom Parnes]
Chanuka Music Special
         [Gershon Dubin]
Common Law (3)
         [Jay F Shachter, Irwin Weiss, Keith Bierman]
Homosexuality (2)
         [Ari Trachtenberg, Lisa Liel]
Labels --   was  Frum and unconventional
         [Bernard Raab]
         [Noyekh Miller]
Question not about homophobia
         [Bernard Raab]
Source of Quote
         [Gershon Dubin]


From: Sholom Parnes <merbe@...>
Date: Tue, 27 Dec 2005 21:22:17 +0200
Subject: Abba/Ima

Dear MJ'ers,

In our family we have somewhat similiar experiences as some of the
previous posters. We originally decided to let each person
(parent/granparent) to decide what they wanted to be called. I started
out as "daddy" but that was very short lived. I have been Abba for
almost 18 years.  (My daughter has me listed in her cell phone as "ABBA
Hachi Tov" or " #1 Abba" in Hebrew. It is really nice when she calls my
cell phone and I get that greeting on the screen.) Sorry for the
digression. My kids Maternal Grandparents are Sov and Grandma. Their
Paternal grandmother is Savta.  It is interesting to see how my father
A"H is referred to by his grandchildren. He was not "zocheh" to see any
of his grandchildren. It seems that each of my siblings and myself refer
to our father as we think he would have liked to be known had he been
alive. So, to part of the family he is Zaide Yaakov and to other parts
of the family he is Sabba Yaakov.

Chanukah Sameach,


From: Gershon Dubin <gershon.dubin@...>
Date: Wed, 28 Dec 2005 08:35:09 -0500
Subject: Chanuka Music Special


Chanukah background music, 3 hours long.



From: Jay F Shachter <jay@...>
Date: Wed, 28 Dec 2005 13:08:40 -0600 (CST)
Subject: Re: Common Law

In mail.jewish v50n79, someone wrote:
> Stuart Pilichowski wrote:
>       I was under the impression that living with a women for more than
>       a year would ipso facto make her your wife both in common law and
>       in halacha.
> Neither of these statements is true.
> Halocho requires kidushin with witnesses.
> 'common law wife' is a fantasy; there is no such common law. Some
> jurisdictions may provide for a couple who live together for  a certain
> period of time (not usually a year) to be married. However since such a
> marriage is recognized by the civil law it is a form of civil marriage!!

This is an astonishingly bold statement, and it reveals a
misunderstanding of the nature of the common law.  The common law is not
a brooding omnipresence in the sky.  The common law is the corpus of all
law created by courts.  The common law changes every time a judge issues
a ruling.  Some of these rulings are sustained by higher courts and
acquire precedential value, some do not.  Sometimes courts choose not to
follow precedent, which they are free to do.  Precedent has a vote, but
not a veto.

Sometimes legislatures codify provisions of the common law, transforming
common law into statutory law, which cannot be changed by individual
courts.  The Author of the Torah did this, in places.  Some of the laws
of the Torah predate the giving of the Torah; they are found, e.g., in
the code of Hammurabbi.  Apparently there was a law common to many
Semitic tribes, portions of which were codified in the Torah.  The laws
that were codified in the Torah are no longer subject to change, except
in manners otherwise provided for in the Torah.

Sometimes statutes are enacted which limit a court's right to ignore
precedent.  In Illinois, for example, where I live, courts are required
to follow precedents established in England prior to the fourth year of
James the First, except, of course, for those that have been overruled
by subsequent legislation (5 ILCS 50/1).  In the absence of such
statues, courts can create new common law, or alter the existing common
law, at will.

Thus there is no way anyone can responsibly say that there is "no such
common law" as acquiring a wife through cohabitation.  If a judge rules
that my cousins Sid and Esther have acquired marital rights and duties
through one year of cohabitation, in matters where the statutory law is
silent, then there is such a common law, and no one can responsibly
assert that no judge, anywhere, has issued such a ruling.

As it happens, no Illinois court would create such a marriage, because
to do so would conflict with an Illinois statute, namely, 750 ILCS
5/214, which recites in pertinent part as follows:

       Common law marriages contracted in this State after
       June 30, 1905 are invalid.

Under (common-law) rules of statutory construction, this means that
there were valid common-law marriages prior to June 30, 1905 -- at least
in Illinois -- despite the bold assertion to the contrary quoted above.

Jay F. ("Yaakov") Shachter
Chicago IL  60645-4111

From: Irwin Weiss <irwin@...>
Date: Wed, 28 Dec 2005 05:58:18 -0500
Subject: Common Law

In the US, some states recognize common law marriage for its residents,
while others (like Maryland where I am a lawyer) do not. However, in
Maryland, we will recognize a couple as married if they have achieved
that status in accordance with the law of a foreign jurisdiction, so, if
a couple has become married by virtue of common law marriage in
Pennsylvania, which recognizes common law marriage, we recognize them as
married in Maryland.

Irwin Weiss

From: Keith Bierman <Keith.Bierman@...>
Date: Wed, 28 Dec 2005 13:59:51 -0800
Subject: Re: Common Law

http://www.co.travis.tx.us/dro/common_law.asp certainly suggests that 
the term is legally correct in some states. As does: 

Indeed, it would seem that this concept was widespread until dealt with 
Legislatively (generally banning it as such, but in the US it's 
recognized if the "common law marriage" was established in a state which 
hasn't banned it. For example, a couple meeting the Texas three part 
test moving to California would be treated as married by the State of 
California even though California banned the practice. Palimony suits 
notwithstanding ;>).

As to the definition of "Common Law" at least on dictionary (American 
Heritage) holds
> common law
> /n./
> The system of laws originated and developed in England and based on 
> court decisions, on the doctrines implicit in those decisions, and on 
> customs and usages rather than on codified written laws.

So I'm at a bit of a loss to see the distinction Matt is trying to make.
However, I would agree with his assertion that this is a form of Civil /
Secular law and not a halachic argument.

Even in the halachic setting it still seems to me that "living together"
needs to be qualified more precisely than the same building. Relatives,
and even strangers sharing separate rooms and a common kitchen may well
be fully shomer mitzvot irrespective of their mailing address.

Keith H. Bierman    <keith.bierman@...>|
Sun Microsystems PAE                     | <khbkhb@...>
12 Network Circle UMPK 12-325            | 650-352-4432 voice+fax
Menlo Park, California  94025            | sun internal 68207
http://blogs.sun.com/khb        <speaking for myself, not Sun*>


From: Ari Trachtenberg
Date: Tue, 27 Dec 2005 14:27:05 -0500
Subject: Re: Homosexuality

> From: Lisa Liel <lisa@...>
> The Christians attribute to their deity the sentiment that one who has
> adulterous feelings is as guilty of adultery as one who actually commits
> the act.  We, on the other hand, say "*Ein* machshavah k'maaseh".

I'm afraid that this is an unfortunate choice of example.  There is a
commandment "lo tachmod/tit'aveh" [loosely: do not covet ... your
neighbor's wife/house] which seems to be prohibit specific thought and
feeling, with the rationale being that these thoughts are likely lead to

I would be interested in sources either supporting or refuting your
claim that homosexual thoughts may be permitted in separation from
(male) homosexual actions.


From: Lisa Liel <lisa@...>
Date: Tue, 27 Dec 2005 14:50:18 -0500
Subject: Re: Homosexuality

Ari Trachtenberg wrote:
>I'm afraid that this is an unfortunate choice of example.  There 
>is a commandment "lo tachmod/tit'aveh" [loosely:  do not covet ... 
>your neighbor's wife/house] which seems to be prohibit specific 
>thought and feeling, with the rationale being that these thoughts 
>are likely lead to action.

There's a difference between thoughts and fantasizing.  Or obsessing.  A
Jewish man who feels an attraction to another man's wife has committed
no aveira.  If he wallows in hirhurim over her, he has.  I don't see why
this would be any different for someone whose attraction is to members
of the same sex.  I don't picture the women I pass going down the street
naked.  Do you?

>I would be interested in sources either supporting or refuting your
>claim that homosexual thoughts may be permitted in separation from
>(male) homosexual actions.

With all due respect, don't you have that backwards?  Ha-motzi
mi-chaveiro, alav ha-raayah.



From: Bernard Raab <beraab@...>
Date: Tue, 27 Dec 2005 18:22:38 -0500
Subject: Labels --   was  Frum and unconventional

>From: Carl A. Singer:
>Even when it's something as simple as "I eat salads at Denny's" -- When
>you say this, what response are you expecting from me?  Why did you say
>this?  Should I ignore your statement?  Do you want me to give you
>mussar?  Do you want me to say that understand?  Should I hug you :)

Somehow, I doubt that such a confidante is looking for mussar from you
(unless that's your reputation). I think he is probably trying to gauge
how far out of the mainstream he (or you) are. Why not just tell him
"yes so do I" or "no I won't even take a coffee in their mug", or
whatever. If you don't want to be so engaged it's easy to avoid a direct
response, but why take offense?

b'shalom--Bernie R.


From: Noyekh Miller <nmiller@...>
Date: Tue, 27 Dec 2005 17:59:38 -0500
Subject: Politesse

Some time ago one of our southern brethren submitted a note on derekh
erets which he defined as "good manners" and offered that as an excuse
for not sending his young fry north where they could pick up a proper

I prefer to stay with the clear meaning of the phrase: derekh erets
means the way of the land, its style, its rhythm, etc.  What our Bourbon
friend had in mind was to privilege one region's style (together with
its particular hypocrisies), declaring it to be the yardstick of "good
manners".  All of which reminds me of when the great critic Edmund
Wilson finally visited Great Britain and wrote back that the
much-vaunted "manners" of the English upper classes was nothing but a
screen for all-out viciousness and meanness of spirit.  (If this sounds
strange, reread say Virginia Woolf.  Even better, Marcel Proust for the
French variety.)  And recall the British romantics like T.E. Lawrence
who wrote (and still write) of the exquisite courtesy they found in Arab
lands, no different I suppose from that of Avrom Ovinu at Mamre, which
didn't (and doesn't) seem to stand in the way of behavior of quite
another sort.

There is no benchmark I can think of that is culture-free.  The best we
can do is to adopt universalistic criteria that call for treating all
human beings with dignity and respect.  Not very likely to be adopted
now or in the distant future.  Halakhic Judaism contains an elaborate
code by which particularism trumps universalism at every turn and thus,
I'm sorry to say, does not serve as a light to the nations in this

Noyekh Miller


From: Bernard Raab <beraab@...>
Date: Tue, 27 Dec 2005 17:34:09 -0500
Subject: RE: Question not about homophobia

>From: Paul Azous <azous@...>
>There is a machloket between Rashi and Rambam regarding someone who
>either has an intentional sex change, or for who lost his private parts
>in battle. The machloket revolves around the beracha in Birkot Hashacar
>regarding "Shelo Asani Isha", or "Sheasani Bitzalmo". If a sex change
>takes place which beracha does the person now recite in the morning?

Ah...If this were the only issue. When I suugested to my Rav many years
ago that I was uncomfortable reciting "shelo asani isha", and that none
of the reasons given (rationalizations in my mind) were compelling (yes,
it was the height of the feminist movement and I was properly
"sensitized"), he said without hesitation that I could just as properly
use "she'asani kirtzono" (and without a sex-change operation!) .
"She'asani bitzalmo" would obviously carry the same heter. And so I did
for many years until I became an aveil and became a regular Sha"tz for
my minyan. At that point I felt I had to follow the minhag hatzibur, and
so reverted back. But I still think it is a change worth making. I felt
immediately more connected to the bracha by making a positive statement
of affirmation rather than the negative statement of avoidance. Think
about it.

b'shalom--Bernie R.


From: Gershon Dubin <gershon.dubin@...>
Date: Wed, 28 Dec 2005 08:36:20 -0500
Subject: Source of Quote

Anyone know the source of the quote wherein someone is asked by, I
think, a queen of England, for proof of the existence of God and he
answers "The Jews, your majesty, the Jews".



[A quick google search shows that Aish HaTorah has the following
sentence, which appears in identical form in a number of other hits as

Over 300 years ago, King Louis XIV of France asked Blaise Pascal, the
great Christian philosopher, to give him proof of God. Pascal answered,
"Why the Jews, your Majesty, the Jews!"

However, I did not see any source in my quick look.



End of Volume 50 Issue 81