Volume 59 Number 91 
      Produced: Tue, 11 Jan 2011 01:59:24 EST

Subjects Discussed In This Issue:

From The Jewish World Review (2)
    [Frank Silbermann  Mordechai Horowitz]
Legal Shiluach Hakein (3)
    [Avraham Walfish  Chana Luntz  Orrin Tilevitz]
Little-known Kiddush Levana law 
    [Shmuel Himelstein]
Need for new moderators on mail jewish 
    [Mordechai Horowitz]
New Moon Sanctification 
    [Yisrael Medad]
Opening / closing the Ark 
    [Martin Stern]
Salaries for public charity leaders 
    [Joseph Kaplan]
Shamash and MyJewishLearning 
    [David Rosenthal, DO]
Shehecheyanu and bird watching 
    [David Tzohar]
Shuckling (2)
    [Frank Silbermann  Yisrael Medad]
Spanish words in Shulchan Aruch 
    [Emmanuel Ifrah]
Willow species for aravot 
    [Ashley Tugendhaft]


From: Frank Silbermann <frank_silbermann@...>
Date: Fri, Dec 31,2010 at 04:01 PM
Subject: From The Jewish World Review

Jeanette Friedman wrote (MJ 59#87):

> Rabbi Judah says: Whoever does not teach his son 
> a trade or profession teaches him to be a thief.

Alex Heppenheimer (MJ 59#89) responded:

> ... Incidentally, too, the same word "umanus" ("profession," or more
> precisely, "craft") is used to describe a full-time Torah  scholar: "toraso
> umanuso," his Torah is his craft or profession (Tosafos, Sotah  21a, s.v.
> Zeh; Shulchan Aruch, Yoreh De'ah 243:2; et al). We may therefore derive from
> this statement of R' Yehudah that one who raises his son to be a full-time
> Torah scholar has taught him well.

Of course, one has to fear the meaning of the word, "full-time."  Someone who
doesn't have the discipline to avoid goofing off (e.g. because he's not
emotionally suited for full-time study) might not qualify.  Someone who raises
such a son without any other "umanus" might indeed be viewed as like having
raised him to be a thief.

Frank Silbermann           Memphis, Tennessee

From: Mordechai Horowitz <mordechai@...>
Date: Sun, Jan 2,2011 at 01:01 AM
Subject: From The Jewish World Review

The Gemorrah in kiddushim is quite clear that Torah is not considered a 
profession as it says just "..just as he is required to teach him Torah 
he is required to teach him a trade"

So there is no question this section of Talmud categorically rejects the 
idea of the "scholar" who refuses to work so he can learn.

And indeed have we seen the results of this world. We have a problem. Why did we
ignore the warnings of our great Torah leaders of the past to embrace this Torah
only view that has devastated the Torah true community.


From: Avraham Walfish <rawalfish@...>
Date: Wed, Jan 5,2011 at 04:01 PM
Subject: Legal Shiluach Hakein

In MJ 59#90 Orrin Tilevitz wondered about the conflict between the mitzvah
of *Shiluah hakein* and federal laws prohibiting taking the eggs or

The assumption that there is indeed a conflict is based on assuming that sending
away the mother and taking the eggs/fledglings are unconditional positive
mitzvah obligations, regardless of whether or not the person has any desire to
make use of the eggs/fledglings. 

Both parts of this assumption are highly questionable. Arukh Hashulhan Yoreh
De'ah 292:1-2 (based on Havot Ya'ir 67) does indeed advocate the first part,
that sending away the mother is an unconditional obligation, but the Hatam
Sofer, Orah Haim 100 and Hazon Ish Yoreh Deah 175 2 (p. 203, s.v. umikan) rule
that if the person has no desire to take the offspring, there is no obligation
to send away the mother at all. This view is also advocated (without source) by
the Star-K article referenced by Orrin


Moreover, even Arukh Hashulhan, who accepts the first premise regarding the
absolute obligation of sending away the mother, questions (292:3-4) whether
there is also an unconditional obligation to take the offspring, and concludes,
following Hakham Zvi 83, that there is not.

Hence there is strong halakhic basis for concluding that Orrin's problem
regarding the birds is a red herring (sorry, couldn't resist).

Avie Walfish

From: Chana Luntz <Chana@...>
Date: Sat, Jan 8,2011 at 07:01 PM
Subject: Legal Shiluach Hakein

Orrin Tilevitz wrote (MJ 59#90):

> 2. At least according to the Arukh Hashulchan, the commandment is to drive
> away the mother and take the eggs (or chicks). One may not say "I don't
> want, or can't eat, the eggs, and therefore will abstain". So unless dina
> demalchuta applies, one may not use it as an excuse not to perform the
> mitzvah.

Note that this is a makhlokus between the Chavos Yair and the Chatam Sofer.
The Aruch HaShulchan does indeed posken like the Chavos Yair (indeed he
brings the reference there) but the Chatam Sofer holds in his commentary on
Shas on Chulin 142a (d"h "Uma") not like this and suggests that if you don't
want the eggs then there is no mitzvah at all.

> 5. While the mitzvah is Toraitic and dina demalchuta is rabbinic, so
> that ordinarily the mitzvah should take precedence, negative rabbinic
> commandments at least some times take precedence over positive Toraitic
> ones under the principle of "shev ve-al taaseh". (That is how, for example,
> the rabbis could ban blowing the shofar on Shabbat.) Does that reasoning
> apply here, or is shiluach hakein different because, perhaps, the reward for
> it is long life?

The Chatam Sofer there also specifically refers to this, holding that shev
v'al ta'aseh vis a vis rabbinic prohibitions does apply to shiluach hakein
(and he does not attempt any suggestion that shiluach hakein might be
different from the normal rule). The issue he was discussing there was
performing the mitzvah of shiluach hakein on Shabbas, with rabbinic issues of
muktzah arising if you touch the bird.  And he clearly holds that if, in order
to perform the mitzvah, one needs to violate rabbinic prohibitions of muktzah,
shev v'al ta'aseh would seem to override.

> Another, chicken-and-egg (I could not help myself) question:
> It is possible (I have not analyzed the issue) that notwithstanding the
> Migratory Bird Treaty Act, shiluach hakein would be permissible under
> the Constitutions free exercise clause. (See, e.g., Employment Division v.
> Smith, Smith, 494 U.S. 872 (1990) and the subsequent federal Religious
> Freedom Restoration Act).
> Assuming that shiluach hakein would otherwise be barred because of dina
> demalchuta, which doctrine does one apply first, dina demalchuta or the
> free exercise clause? That is, does one say
> (1) one never gets to dina demalchuta because the mitzvah is protected
> by the free exercise clause, or
> (2) the free exercise clause is designed to break an otherwise
> unavoidable conflict between secular law and the practice of religion, and
> here the religion itself defers to secular law so one need not invoke the
> free exercise clause? It is not clear to me whether this a question of
> halacha, U.S. constitutional law, or both.

I am no US Constitutional lawyer (being merely a UK and Australian one), but
I struggle to believe that the free exercise clause is as wide ranging as
you suggest it is.  The classic hard case of this is female circumcision,
because there are indeed those who claim that this is a religious exercise,
and yet, as far as I am aware, it is banned in all Western Countries.  If I
am right about it being banned in the US, as it is elsewhere, then the free
exercise clause must have some limits on it (how about blowing up
unbelievers as another example?).  Certainly in the UK free exercise of
religion does not extend so far, and a law that is for the welfare of birds
in general, and does not single out a particular religion, would not allow
for religious exceptions unless specifically drafted into the legislation.  

But it also seems to me, even if you posit a conflict, and even you hold
like the Chavos Yair and the Aruch HaShulchan, you might struggle to rely on
the free exercise clause.  Because the mitzvah is clearly according to the
Aruch HaShulchan, even when obligatory, only if "it comes to one's hand".
So the obvious way to avoid any conflict is to avoid running into kosher
birds sitting on their nests, which in modern day cities are probably
reasonably easy to do.  If you deliberately were to avoid such nests, then
one would never come to chiyuv, and one would never come to conflict with
the secular law.  Admittedly, that might not be a very satisfying answer for
a self confessed "bird watcher" but it does solve the problem.

And further, I do wonder whether the Chatam Sofer's logic would not also
help tip the balance (even if you held like the Chavos Yair and the Aruch
HaShulchan).  The reason the Chatam Sofer argues against the Chavos Yair is
because Chazal say explicitly that the mitzvah is an easy mitzvah [mitzvah
kalah], and he says that this is only true if one wants the eggs.  If one
does not want the eggs, and yet it is obligatory to chase away the mother
bird, then one could end up wasting significant time (which means money) in
performing this mitzvah (and refers one to the discussion in Baba Matzia
regarding loading and unloading an animal).  Now even if the free exercise
class could be invoked, the amount of time and money that would
unquestionably be required in arguing this to the authorities would seem to
have turned this from an easy mitzvah to a difficult and complicated one.
Could you then say that today, what is involved in shiluach hakein, given the
reality of the authorities, is not longer the same mitzvah that it was in
the days of Chazal, and just as the Aruch HaShulchan and the Chavos Yair
agree that one is not required to go out searching for a bird to send away,
because of the tircha [effort] involved, one is no longer required to perform
the mitzvah if it does come to your hand, because the tircha involved in such a
performance is so much greater than ever contemplated by Chazal.  And
especially given the general limitations placed on performance of positive
mitzvos (in terms of the amount of money required to be spent on them, which
- it seems to me, legal fees might well exceed), added to the nature of
shiluach hakein as by definition a mitzvah kalah, it might be required to
leave the bird and the eggs and not perform the mitzvah even might one be
ultimately likely to succeed on the legal front.

> And that is far as I've gotten. Comments?

Me too. Thanks for a fun bit of Shabbas research.


From: Orrin Tilevitz <tilevitzo@...>
Date: Sun, Jan 9,2011 at 12:01 AM
Subject: Legal Shiluach Hakein

Chana Luntz writes in this digest:

> I struggle to believe that the free exercise clause is as wide ranging as
> you suggest it is.

Perhaps I misspoke in suggesting that I thought the free exercise clause would
apply; what I meant to suggest is that it could apply. Like Chana, I am not a
U.S. constitutional lawyer (when permitted to I specialize in U.S. tax law), but
it seems to me that comparisons to female circumcision and the like are not on
point. The Religious Freedom Restoration Act provides that the standard in
determining whether a statute trumps a religious practice is whether the
government has a compelling interest. I don't know that this is the case,
particularly if one is talking about the more common migratory species (e.g.,
Canada geese or American robins).

> So the obvious way to avoid any conflict is to avoid running into kosher
> birds sitting on their nests, which in modern day cities are probably
> reasonably easy to do.

American robins nest fairly low to the ground in public parks. If one knows what
one is looking for, one cannot easily avoid them if one goes to a park.

BTW, New York City Department of Parks rules bar disturbing any wildlife,
migratory or not, on park grounds, on penalty of a fine. House sparrows are
prolific nesters all over the place. For that matter, so are feral pigeons. It
is impossible to avoid their nests in parks. Of course, one could simply avoid
going to parks during nesting season, but that wouldn't be much fun, would it?

> Could you then say that today, what is involved in shiluach hakan, given the
> reality of the authorities, is not longer the same mitzvah that it was in the
> days of chazal, and just as the Aruch HaShulchan and the Chavos Yair agree
> that one is not required to go out searching for a bird to send away, because
> of the tircha involved, one is no longer required to perform the mitzvah if
> it does come to your hand, because the tircha involved in such a performance
> is so much greater than ever contemplated by Chazal.

AFIK, whether dina demalchuta applies may depend on whether the law is enforced,
not whether one is in actual fear of the laws being enforced in one's own case.
That is, if a practice is banned because of dina demalchua, it is banned even if
one can do it with no fear of civil punishment (e.g., by raiding a nest when no
witnesses or enforcement agents are around.) So I don't think you can avoid the
question by arguing that the possibility of arrest changes the nature of the


From: Shmuel Himelstein <himels@...>
Date: Thu, Jan 6,2011 at 11:01 AM
Subject: Little-known Kiddush Levana law

Most of us think that when we recite the Kiddush Levana [sanctification of the
new moon --MOD] , when we get to the Shalom Aleichem part, we need to say it to
three people. The halachah, though (Tur) is that there have to be three
"exchanges of greetings, " and if you answered three people, without asking
anyone yourself, you have fulfilled your obligation. 

Shmuel Himelstein


From: Mordechai Horowitz <mordechai@...>
Date: Sun, Jan 2,2011 at 11:01 AM
Subject: Need for new moderators on mail jewish

Shame on the moderators of mail Jewish for their current way of 
moderating the list.

They allow personal attacks on me on a discussion by posters with an 
open agenda of promoting the violation of Torah law and refuse me the 
the right to defend myself, and when I complain instead of addressing my 
complaint rudely respond "The subject is now closed" refusing to treat 
me as a human being and instead dismissing me as if I am a insignificant 

I believe this list needs new moderators and call on the current 
moderators to resign the position and allow others who are committed to 
Torah values to replace them.

[Mods:  We feel that this thread is now worn out and generates more "heat"
than "light."  We would be happy to consider anyone who would like to join
the M-J moderation team.  The main criteria for consideration include a history
of balanced Mail-Jewish posts, an open mind, ...and thick skin :).]


From: Yisrael Medad <ybmedad@...>
Date: Fri, Jan 7,2011 at 04:01 AM
Subject: New Moon Sanctification

An attempt to renew the process of the sanctification of the New Moon, 
on the Temple Mount, with witnesses, has been accomplished.

So far, item only in Hebrew:




From: Martin Stern <md.stern@...>
Date: Wed, Jan 5,2011 at 01:01 PM
Subject: Opening / closing the Ark

Stu Pilichowski <cshmuel@...> wrote (MJ 59#90):

> When is the Aron supposed to be open before reading the Torah to remove the
> Torah? Vayehi Binsoaah Haaron? Can it be opened at Ayn Kamochah? Is it a big
> deal one way or the other?

As far as I am aware, the procedure is as follows:

At 'Ein Kamochah', the person moves towards the Aron, ascending the steps as
the chazan sings or says 'Av Harachamim' but only opens it when the chazan
begins 'Vayehi Binsoaah Ha'aron', taking out the Sefer Torah when he comes
up to fetch it. Incidentally, I consider it unseemly (bizayon) for the Sefer
Torah to be taken down to the chazan at the Amud as I have seen on occasion.

There then seem to be two customs, either the Aron is closed before the
chazan turns to face the tzibbur and say Shema etc. or it is left open until
he descends to take the Sefer Torah to the Bimah -  every congregation
should follow its practice in this matter. Unfortunately confusion has
arisen on this point. Where the aron is open, the custom is for the chazan,
holding the Sefer Torah, to turn to it and bow as he says 'Gadlu' and then
raise it when he says 'Unerommema". Where the Aron is already closed, this
does not make sense and he should not turn to it and only raise the Sefer
Torah when he says 'Unerommema". He then takes it to the Bimah while the
tzibbur sings or says Lecha Hashem, Al Hakol and Av Harachamim.

> How about when you return the Torah? As early as Mizmor LeDovid? Or do you
> have to wait for Uvenoochoh Yomar?

The Sefer Torah is taken from the Bimah to the aron while the tzibbur sings
or says Mizmor LeDavid (on Shabbat) or LeDavid Mizmor (on other days) and is
handed to the person to put back which he should do while the chazan sings
or says Uvenoochoh Yomar, at the conclusion of which the Aron is closed and
the person returns to his place, thanking the gabbai on his way.

Probably none of this is me'akev bedi'eved [a big deal if not followed

Martin Stern


From: Joseph Kaplan <penkap@...>
Date: Tue, Jan 4,2011 at 10:01 AM
Subject: Salaries for public charity leaders

After complaining about the high salaries paid to rabbis and Jewish
educators, Mordechai Horowitz writes (MJ 59#89): "Let's focus on the
corruption of our Orthodox Rabbinic leadership."  

Reasonable people can (and do), of course, disagree about the salaries paid to
rabbis and Jewish educators.  But to call it "corruption" is baseless and an
unfair and mean-spirited slur on many fine people who have dedicated their lives
to serving their community.
Joseph Kaplan


From: David Rosenthal, DO <help@...>
Date: Mon, Dec 20,2010 at 01:01 PM
Subject: Shamash and MyJewishLearning

Shamash: The Jewish Network has recently found a new home with the good folks at

MyJewishLearning.com is a not-for-profit organization, and it depends on
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MyJewishLearning.com. Together, MyJewishLearning.com and Shamash touch hundreds
of thousands of people every month.

Last year MyJewishLearning was able to raise $10,000 from its readers and this
year they've set their sights even higher.

With your support we can help MyJewishLearning raise $18,000!

MyJewishLearning has already raised more than $15,000, but still has a ways to 

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The Shamash.org Staff
The MyJewishLearning.com Staff


From: David Tzohar <davidtzohar@...>
Date: Wed, Jan 5,2011 at 03:01 PM
Subject: Shehecheyanu and bird watching

Orrin Tilewitz wrote (MJ 59#90) of how he said shehecheyanu on seeing his "first
varied thrush" . I am afraid that Orrin erred and made a bracha levattala and in
so doing took the name of Adoshem in vain.

Even though Orrin wrote in an anecdotal and almost frivolous vein, I would
point out that there is nothing frivolous about dinei berachot. If there is
the slightest doubt on whether or not to say a beracha the rule is safek
berachot lehakel (when in doubt go according to the lenient ruling not to
say the beracha.)

The halacha on when to bentsch shechechyanu can be found in Shulchan Aruch
and Mishna Brurah Orach Chayyim 225.
David Tzohar


From: Frank Silbermann <frank_silbermann@...>
Date: Wed, Jan 5,2011 at 01:01 PM
Subject: Shuckling

Bernard Raab wrote (MJ 59#90):

> This discussion seems to have run its course without anyone mentioning the
> Christian sect which seems to have engaged in similar fervent forms of worship,
> whose very name honors the form: the _Shakers_. I don't think that their form of
> shuckling would seem very familiar to us, however, as it seems to have been
> accompanied by fervent singing and dancing, with men and women strictly 
> separated.
> On the other hand...

Come to think of it, don't many Long Island Jews today live in _Shaker_ Heights?
(I first heard the community mentioned in Alan Sherman's "Ballad of Sir Greenbaum"
of his 1962 album "My Son, the Folksinger).
Frank Silbermann          Memphis, Tennessee

From: Yisrael Medad <ybmedad@...>
Date: Fri, Jan 7,2011 at 05:01 AM
Subject: Shuckling

Bernie Raab (MJ 59#90) mentioned the Shakers.

First off, they are not relevant because David's first post mentioned 
sexual stimulation and as for the Shakers:

1.  The group was known for their emphasis on social equality and rejection 
of sexual relations, which led to their precipitous decline in numbers 

2.  Shakers worshiped in plain meetinghouses where they marched, sang songs, 
danced, twitched and shouted.

Shuckling is not twitching although some Carlebach services can get a-shakin'.



From: Emmanuel Ifrah <emmanuel_ifrah@...>
Date: Thu, Jan 6,2011 at 09:01 AM
Subject: Spanish words in Shulchan Aruch

I am looking for a book or academic paper listing all Spanish words used by R. 
Yossef Karo in Shulchan Aruch - kind of equivalent of what exists for Le'azey
Rashi. If it also has a transliteration and translation would be a bonus.
If anyone can help me find one, I'd be grateful.

Emmanuel Ifrah


From: Ashley Tugendhaft <ashertug@...>
Date: Mon, Jan 10,2011 at 07:01 AM
Subject: Willow species for aravot

I have growing in my garden a willow of the Chilean Pencil willow variety. It is
mainly an Australain species. Does anyone have any information or expertise
regarding the suitability of this willow species for both aravot usage and
hoshanos usage for Succot?

Ashley Tugendhaft


End of Volume 59 Issue 91