Volume 50 Number 82
                    Produced: Thu Dec 29  6:15:51 EST 2005

Subjects Discussed In This Issue: 

Common Law Marriage
         [Stuart Pilichowski]
Question not about homophobia (2)
         [Lisa Liel, Paul Azous]
Rabbi Rapoport's book
         [Rabbi Y. H. Henkin]
Who does represent Jews? (2)
         [Carl A. Singer, Avi Feldblum]


From: Stuart Pilichowski <cshmuel@...>
Date: Wed, 28 Dec 2005 14:35:32 +0000
Subject: Re: Common Law Marriage

From: Perets Mett <p.mett@...>
Date: Tue, 27 Dec 2005 12:04:03 +0000
Subject: Unconventional

> 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.

I unfortunately don't have the sources in front of me, but this is the
crux of the difference of opinion between R' Moshe Feinstein and R'
Henkin. The ramifications are of course whether a get would be required
down the road if there is a breakup in the marriage/relationship and
whether the offspring of a future union sans get would be a mamzer.

Generally speaking, I'm opposed to such definitive statements as
"Neither of these statements is true." Perhaps, but the responsa
literature deals with what happens when halacha is not followed
exactly. Or in our case, when marriage/living together took place
without witnesses. Is it halachik marriage? Well depends on the posek
and circumstances.

Chag Urim Sameach

Stuart Pilichowski
Mevaseret Zion, Israel


From: Lisa Liel <lisa@...>
Date: Wed, 28 Dec 2005 07:51:36 -0500
Subject: Re: Question not about homophobia

From: Ben Katz <bkatz@...>
>I would like to see the sources for this.  I didn't think the
>beracha "she-asani kirtzono (or betzalmo)" was extant in Rashi's 
>time.  I thought it was first introduced in ~ 14 the century (a 
>bit before the time of the Abudraham).

Really?  I thought there was a thing that no new brachot were created
after the close of the Gemara.


From: Paul Azous <azous@...>
Date: Wed, 28 Dec 2005 18:09:40 +0000
Subject: Re: Question not about homophobia

In regards to what Ben Katz wrote:
> I would like to see the sources for this.  I didn't think the
> beracha "she-asani kirtzono (or betzalmo)" was extant in Rashi's time.
> I thought it was first introduced in ~ 14 the century (a bit before the
> time of the Abudraham)."

The Tosefta gives a rough version of these three early berachot.  A
pre-Rabbi Meir version of the three berachot is given in the Tosefta
(Berachos 6:23):

       1- who did not make me a non-Jew (goy)
       2- who did not make me a woman
       3- who did not make me a boor (the word used is actually "bur")

Furthermore, The Yerushalmi on Brachos 9:2 reads:

"Manni Rav Yehudah omare shloshah dvarim tsarich adam lomar b'chol yom:
... barcuh shello assani isha, /she'ain ha-isha metsuvah al hamitzvos/."

"A braissa teaches: Rebbi Yehuda said, 'Each day one should say
... "Baruch the One Who has not made me a woman," /because a woman is
not commanded to perform [all] the mitzvos/."

Although the exact formation of the berachot may not have been extant
during the times of the Gemarot, the ideas certainly were. Thus, Rashi
and Rambam both had these berachot, pre-dating the Abudruham and Tur by



From: Rabbi Y. H. Henkin <henkin@...>
Date: Wed, 28 Dec 2005 10:04:31 +0200
Subject: Rabbi Rapoport's book

Following is a haskama I wrote some years ago for Rabbi Rapoport's book,
but which he did not use.  


Rabbi Chaim Rapoport has written a forthright, insightful and important
book. Carefully researched and passionately argued, his "Judaism and
Homosexuality: An Authentic Orthodox View" is a major contribution to
public awareness and debate of an increasingly salient issue.

His book reflects both breadth of scholarship and depth of compassion.
His Halachic conclusions in chapter 7 are correct, in my opinion. A man
with an exclusively homosexual orientation, let alone an active
practitioner, should not be pressured into attempting a normal marriage.
As ruled by Rema in Even haEzer 1:3, Beth Din today no longer coerces
anyone to marry, and while this certainly does not free one from the
obligation of non-coercive tochecha - urging and encouraging others to
fulfill the mitzvah of procreation - there is nothing to be gained by
advocating the impossible or the highly improbable. Rabbeinu Yonah, in
Igeret haTeshuvah, lists giving proper advice as part of the mitzvah of
gemilut chessed. In any case, full advance disclosure to the prospective
bride is mandatory, rendering such a marriage unlikely.

Gradualism in teshuvah, i.e., attempting to wean an active homosexual
from forbidden acts over a period of time, discussed in chapter 8, is
usually the only course possible and is supported by Sotah 48a
l'vetulei ha mikamei ha.

If I have any qualifications to my approbation of this excellent book,
they are primarily in the areas of emphasis and nuance. I will, however,
offer a few material observations:

1. Concerning chapter 2. A rosh yeshivah I studied with was asked
permission by a sociologist to conduct a survey of the religious beliefs
and practices of his students. The questionnaire included the query "do
you believe in G-d?" and the rosh yeshivah declined permission. He was
concerned lest some students ponder the question, conclude "well,
actually - no!," and leave the yeshivah. Translated into the terms of
our topic, it is not our responsibility to insure that a youth with
homosexual tendencies be honest with himself, if such honesty will lead
him from homosexual tendencies to overt homosexual practice.

2. The statement in chapter 2 "Judaism looks negatively at homosexual
activity, but not at the homosexual," mirrors the famous comment by
Bruriah in Berachot 10a that the Torah seeks the extirpation of the sin
and not of the sinner. Until recently, Judaism's opposition to
homosexual activity was well-known and was true of society in general,
and it was the second half of the above statement that needed
emphasizing. There are campuses today, however, where the strength of
gay/lesbian politically-correct opinion is such that those who eschew
experimentation with homosexuality find themselves under siege. For
Jewish students exposed to such a climate, it is often opposition to
homosexuality itself that needs reinforcement. For that and other
reasons there is much to be said for the utility of maintaining a
feeling of abhorrence as a barrier against homosexuality, irregardless
of how one understands the Biblical term to'evah and in spite of the
risks of improperly confusing the sin with the sinner. It is, alas, only
a small remnant of the visceral horror of sinning in general, (yir'at
cheit), which was more prevalent once than it is today.

3. On the subject of tinok shenishbah, " a child brought up among the
nations," in chapter 6. Originally, tinok shenishbah was a transient
status: once a person found out that he was Jewish and that Jews kept
the Torah, he was no longer a tinok shenishbah. It was axiomatic that
birth into a community entailed following the practices of that
community; therefore, it was enough to discover one's real identity in
order to be bound by it. There are still echoes of this today, as in
those survivors of the Holocaust who were raised from infancy as
Catholics and whose discovery at a later age that they had been born
Jewish started them on the road back to Judaism.

Once he discovered who he was, a tinok shenishbah could not continue to
plead ignorance. If he did not know the details of Judaism, for instance
that there was such a thing as Shabbat, it was now his responsibility to
go and learn them. This presupposed that there was only one recognized
version of Judaism. If rival claims existed, as in the case of the
Karaites, how was the tinok shenishbah to know what version of Judaism
he was bound to adopt? This was the background to the Rambam's
transforming tinok shenishbah into a permanent status, transferable even
from one generation to the next.

It took recent generations to apply the concept of tinok shenishbah to
simple backsliding, even in the absence of a competing religious claim.
The problem with this expanded usage of tinok shenishbah is that the
concept can be used to justify and exonerate anything past, present and
future. The worshippers of the Golden Calf were tinokot shenishbu as
slaves in Egypt. The worshipers of Ba'al were tinokot shenishbu on
account of the pervasive Canaanite influence in the region. And so

If taken at face value, other Talmudic statements can also be employed
to free anyone from any responsibility for his actions. In Sotah 3a, "no
one violates a prohibition unless he is first possessed by a craze
(ruach shel shtut)." Or in Yoma 86a, "If one violates a prohibition and
repeats it, it seems to him to be permitted [thereafter]." One who is
temporarily crazed and who believes that what he does is acceptable, is
hardly culpable, nor is someone whose beliefs and behavior can be
completely attributed to his upbringing and environment. And while the
above are non-Halachic formulations, Tosafot in Sanhedrin 9b refer to
someone as being "coerced (anus) by his sexual inclinations."

  Orthodox Jews today, as they cast the net of tinok shenishbah wider
and wider and use it to exonerate increasingly larger circles of Jewish
society, run the risk of its ultimate corruption: applying the concept
of tinok shenishbah to themselves, and thereby eradicating any sense of
guilt and precluding the need for and possibility of teshuvah. That is
the prospect which gives me pause, even as I second and support every
display of graciousness and loving-kindness shown to those who suffer
the disability not of their own making of being homosexuals, or even

Yehuda Herzl Henkin


From: Carl A. Singer <casinger@...>
Date: Wed, 28 Dec 2005 06:05:41 -0500
Subject: Who does represent Jews?

> I speak for many frum gay and lesbian Jews when I say that Steve
> Greenberg does *not* represent us, in any way, shape or form.

I don't know who Steve Greenberg is -- and this isn't about him -- other
than that the above response triggered these thoughts:

At many levels the only person who represents "us" (Jews, stam) is
ourselves.  Yes, we have Rabbi's, some of great stature, some otherwise.
Yes, we have organizations, some broad based and some with narrow focus.
But NO - we don't have any form of representative governance.

Having spent good chunks of my time as the only "visibly Jewish" Jew
(wearing a yarmulke when not in uniform) in a predominantly non-Jewish
environment (The US Army) well meaning friends (and some less well
meaning strangers) have often asked me to be the spokesperson for all of
Jews since the time of Moshe Rabbainu.

Whether it's "How to Jews feel about Jesus?" or "Dr. Laura said ...." or
we read that Rabbi Boteach ....  Even Madonna and Kaballah.  Or "How do
Jews feel about the death penalty, or abortion?"  Or something much
simpler -- "Goldberg says keeping kosher has something to due with lack
of refrigeration in the desert." ....

The point is that anyone who comes forward and claims to represent k'lal
Yisroel (or some subset) is mis-representing themselves.  They are also
obscuring an important aspect of Yiddishkite as a thinking religion.

This is especially so for non-Jewish people whose religion is
accompanied by a governing structure -- be it Catholic up to the Pope,
or various Protestant denominations with their tight organization
leadership -- they find this concept very hard to believe -- and thus
they are in essence gullible when they hear a Rabbi speak -- believing
that he speaks as a representative of an entire people not (perhaps) as
a interpreter of halacha.

Carl Singer

From: Avi Feldblum <avi@...>
Date: Thu, 29 Dec 2005
Subject: Who does represent Jews?

I basically agree with what Carl writes above, but I also sympathize
with Lisa's comment that triggered Carl's remarks. I would point out the
following: Most of the cases Carl is referencing is where you have a
non-Jewish group and they automatically assume that the one Jew is the
one that represents all of Judaism, or a non-religious Jewish group who
them assume that the one religous person represents all of religious
Judaism. I see the issue of Steven Greenberg slightly differently. On
the one hand, from what I understand, he is actively trying to promote
that he does speak for the "Orthodox GL" community. On the other hand,
he is actively used by members of the frum community who want to show
that there is no such thing as a frum GL person - just look at what
Greenberg promotes - they say.

It is in this sense that I understand Lisa's desire that at least in
this forum it should be clear that Greenberg does NOT represent the frum
GL community. Even given the sense that Carl is talking about that
really no one ever fully represents any given community, here it does
appear that there may likely be an aspect of fraudulent claims and we
should be more sensitive to that.



End of Volume 50 Issue 82