Responsa

RRT 80-83

PRESERVING A TORAH FRAGMENT

QUESTION:

Congregation Habonim of New York has a membership composed chiefly of refugees from Germany. The congregation had built a memorial to the Six Million composed of stones from the debris of wrecked synagogues in Germany. Now the congregation is in possession of a fragment of a Sefer Torah which consists of one roller (etz chayim) surrounded by about an inch of parchment. Can this fragment be preserved in a receptacle built into the vestry wall near the memorial of the Six Million? If so, must it be horizontal or vertical? (Question asked by Rabbi Bernhard N. Cohn, New York.)

ANSWER:

IF THIS WERE a complete Torah, then even if it were, for the present, unfit for public reading (posul) and needed correction, the proper place for it (if it was not buried in the cemetery) would be in the Ark, and certainly not in a museum case. The reason for this is as follows: In the presence of the Torah, people must comport themselves with dignity, even if the Torah is kept in a room of a private house (see Berachos 25b and Yore Deah 282:8). If there is a museum case in a vestibule where people go to and fro, it would be impossible to expect them to maintain a respectful demeanor at all times. Therefore it is better that the Torah be kept in the Ark if it is, as I say, largely an intact Torah. See the responsum on this question in Contemporary Reform Responsa, pp. 110 ff. Furthermore, as to whether a posul Torah should be placed in the Ark (instead of being buried), see Contemporary Reform Responsa, pp. 114 ff. (especially p. 116).

However, we are not dealing here with a Torah that is posul but largely intact. We are dealing with a fragment. But how large a fragment? It is not quite clear to me how much of the Sefer Torah is included in this remnant. The inquiry says that it “consists of one etz chayim surrounded by about an inch of parchment.” Does that mean that around the etz chayim there are enough turns of parchment to make a cylinder with the thickness of one inch? If so, this remnant is of considerable size. Nevertheless, considering the thickness of a complete Sefer Torah, a cylinder of one inch is very much less than one-fifth of the total girth and, therefore, must be much less than one complete book of the Five Books. But let us assume that it is a complete Genesis. If on the left-hand roller, it would be the complete Deuteronomy. Yet even if there is a complete book, this one book has not enough sanctity for it to be read in the synagogue. The Shulchan Aruch, Orah Hayyim 143:2, says that even a complete book (of the five) may not be read in the synagogue. Only all five books sewn together may be read. Therefore, even if it is a complete Genesis or Deuteronomy, which is improbable, there would be considerable freedom in the handling of this fragment. But in all likelihood we are speaking here of a small fragment around one of the rollers. So it is primarily the roller that is seen. The roller itself has the status of only “auxiliary holiness” (tashmishey kedusha; see Mogen Avraham, par. 14 to Orah Hayyim 153). An etz chayim may, for example, be cut up or it can be made into another synagogue object (see Current Reform Responsa, pp. 36 ff.). Since, therefore, we are dealing with an etz chayim and not more than a fragment of scroll, this may be put into a case, especially if the case is embedded in the wall near the memorial for the Six Million, where whoever visits the place will certainly conduct himself with dignified demeanor.

Now as to the question of whether it would be proper for this fragment to be placed vertically or horizontally in the case: There is an interesting analogy relevant to this question with regard to a smaller scroll, namely, the mezuzah. Rashi says, in his commentary to Talmud Menachos 33 a, that the mezuzah should be placed in a vertical position on the doorpost. However, the great fourteenth-century German authority, Maharil of Mainz, reports that Rashi’s grandson, Rabbenu Tarn, says that the mezuzah should be affixed horizontally. Then Maharil says that we ought not to contravene either of these great authorities. Therefore we should put the mezuzah diagonally (as we do today) in order to defer as much as we can to the opinion of both Rashi and Rabbenu Tarn (see Minhage Maharil, the section on “Mezuzah,” near the end of the section). At all events, if the mezuzah were affixed in a horizontal position, it would have the justification of one great authority at least, Rabbenu Tarn. But besides the analogy with the mezuzah, we have more direct evidence as to the placing of the Torah. The Talmud, in Megillah 27a, discussing the relative sanctity of the Torah, the Prophets, and the Hagiographa, gives the general principle that the scroll of lesser sanctity (say the Hagiographa) may not lie on top of the scroll of greater sanctity (say the Prophets or the Torah). The Talmud continues by saying that one Torah may lie on the top of another. This indicates, of course, that the Torah can be kept horizontal. As a matter of fact, although today it is our prevalent custom to keep the Torahs standing vertically in the Ark, there were times when the Torah was kept in a series of pigeon-holes lying horizontally (see the end of the article by Ludwig Blau in the Jewish Encyclopedia, “Scrolls of the Law”).

To sum up: If this were an intact Sefer Torah or a complete one of the Five Books, then if not buried (as it may be), it should be kept in the Ark, not in a museum case in the vestry where people walk to and fro. But since this is a smaller fragment, and the most conspicuous part of it is an etz chayim, which is in itself of secondary holiness, it may certainly be kept in an exhibition case, especially if the case is near the memorial, where the demeanor will always be dignified. As for the position of the Torah fragment, there is no real choice as between horizontal or vertical except perhaps that our modern custom is to have it vertical. But if for some artistic reason it is preferred to place the Torah fragment in a horizontal position, there is no Halachic objection to so doing.

RRT 303-305

ESTHER AND THE SECOND SEDER

QUESTION:

Is there actually a minhag to dedicate the second Seder to Esther and to the woman of the house because it was on that night that Esther prepared the fatal banquet for the king and Haman? (Asked by Rabbi M. Arthur Oles, San Francisco, California.)

ANSWER:

NONE OF THE classic books of minhagim available to me even mentions such a minhag. For example, the Ta’amey Ha-minhagim, the Ozar Kol Minhagey Yeshurun, and the classic Mateh Moshe have no mention of such a minhag. Of course there well may be such a custom somewhere, especially nowadays, when the Seder is being extended in various ways as a means of honoring different groups in our recent history, as, for example, an extra matzo to recall the heroism of the Warsaw ghetto and the third Seder for some similar purpose. So if some modern writer thought up this minhag that you mentioned, it would not be surprising.

Yet as a matter of actual tradition, if there is such a minhag somewhere (of which I have been unable to find any specific notice), or if someone started it, there does exist a large amount of material in the traditional literature that might amply justify it.

In the first place, it seems clear that many of the important events involving the rescue of the Jews on Purim began to occur on Passover of the preceding year. The record of the official decree to slaughter the Jews of Persia is mentioned in Esther 3:12 as follows: “And the scribes of the king read on the first month, on the thirteenth day of the month [i.e., Erev Pesach].” This dating of the murderous decree left its mark in the minhagim observed in the preparation for Passover. The Sefer Hamatamim (p. 26b, item # 15) states that when we make the formal search for leaven before the Passover (b’dikas chometz), we place around the house ten pieces of leaven to be found in the search. Why ten? Because the scribes mentioned in the verse were actually the ten sons of Haman; and as a symbol of their ultimate removal, we have ten pieces of leaven which we remove in preparation for the Passover.

More directly, when Esther called for a fast of three days (Esther 4:17), it is understood that these three days were the thirteenth, fourteenth, and fifteenth of Nisan. See Rashi to the reference in Megilla 15a, who also explains the next verse in the Book of Esther, “And Mordecai passed” (va -ya-avor Mordecai), as meaning “And Mordecai transgressed,” i.e., he transgressed the Halacha by having a fast day on the first day of Pesach. This is amplified in the Midrash to Esther, verse 4:16, in which Mordecai complains to Esther that the three-day fast she is proclaiming for the Jews to observe will include the first day of Pesach. To which complaint by Mordecai she rejoined: “If there will be no Jews left, what becomes of Pesach?”

Furthermore, Esther is praised in many ways as being especially meticulous in observing the law, and among these various praises of her as an observant Jewess, it is said that she actually observed the ritual of cleaning out the chometz from the house (biyur chometz). See Koheles Rabba to the verse in Ecclesiastes 8:5: “He who observes a commandment will not know any evil thing.” To which the Midrash there says: “This verse refers to Esther, who engaged in the mitzvah of removing the chometz. ”

Perhaps the closest justification for the possible custom that you mention is the statement in the Pirke Rabbi Eliezer (chap. 50) that the banquet which Esther arranged for the king and Haman actually occurred on the sixteenth of Nisan, the day before the second Seder. This is the source of the statement to which you have referred.

Therefore, while I cannot find in any source among the minhagim that the second Seder is (or should be) dedicated to Esther, nevertheless, if such a custom does exist somewhere, i.e., if it is not merely a modern concoction, it has plenty of classical justification, as mentioned above.

RRT 40-44

CANDLES AT THE SATURDAY NIGHT SEDER

QUESTION:

At the Seder in the Jewish old folks’ home, it is customary for the ladies to have a candle-procession as part of the candle-lighting for the holiday. This year, however, the Seder is on Saturday night, and since the Seder will begin rather early, the candle-lighting would take place while it is Sabbath, which is forbidden. The suggestion has been made to postpone the candle-lighting until later in the Seder, say, before the door is opened for Elijah. By that time it would be quite dark. Is this procedure permissible? (Asked by Louis J. Freehof, San Francisco, California.)

ANSWER:

THE FACT THAT this year Erev Pesach is on the Sabbath creates many ritual difficulties. This occurs rather frequently, since the first day of Passover may occur on Sunday, Tuesday, Thursday, or Saturday. In fact, there is a whole section in the Shulchan Aruch (Orah Hayyim 444) dealing with this situation, namely, when Erev Pesach comes on the Sabbath, as it does this year. However, this section deals only with the ritual matters in preparation for Passover, namely, the searching for the chometz on Thursday and the removal of the chometz the next day. But it gives us no guidance as to the problem of the Saturday night Seder ritual itself.

If the Seder this year is held when it is fully dark, there is no problem at all because, since it is the end of the Sabbath, Havdala is recited. The Havdala is combined with the Kiddush in the merged formula called Yaknahaz, which means the blessing over the wine, the Kiddush, the light (which may now be kindled), the Havdala (marking the end of the Sabbath), and Zeman, i.e., the blessing Shehechionu (cf. Chaye Adam, “Laws of Passover; the Seder”). Thus the light is lit at the very beginning of the ceremony, and no violation of the law has occurred since the Sabbath is over.

However, clearly it is the custom at the Home, and in many institutions, to begin the public Seder before it is dusk, and it is this custom which creates the difficulties this year.

There is a basic question involved in this enquiry. Is the kindling of the Yom Tov lights indispensable to the beginning of the Seder, or can the Seder begin without it? First, it is important to note that the Mishnah and Talmud and all the Codes lay heavy stress on the Sabbath lights on Friday night: the Mishnah, in Sabbath, chap. 2, toward the end; the Talmud (b. Sabbath 25b), which declares the lighting of the light on Friday evening a religious duty; and the Shulchan Aruch, which discusses the Sabbath lights in six full sections (Orah Hayyim 261 to 266). By contrast, the kindling of the lights on the holiday eve has only scant mention. (The statement in the Mishnah, 2:2, and the Talmud, 24b, is that we do not kindle with oil of burning, i.e., oil obtained from burning unfit heave-offering, on Yom Tov. ) This does not refer to the lights for the ushering in of the holiday but to the light ushering in the Sabbath which comes at the close of the holiday. The kindling of the light on a holiday receives only a passing reference in the Shulchan Aruch (Orah Hayyim 263:5) and is not even mentioned in the Chayye Adam in the description of the Seder. Of course it is an established observance to kindle lights ushering in the holiday meal according to Jacob Emden in his Siddur (Laws of Passover Eve 4:2). But the lack of adequate reference to it in the Codes indicates that its status in the law is not very firm.

Not only is the kindling of the light on a holiday of much lesser importance than the kindling of the light on the Sabbath; it is also of lesser importance than the Kiddush which ushers in the holiday. The Kiddush on Passover, for example, is the first of the obligatory four cups of wine, and is discussed fully in the law (Orah Hayyim 473:1). Yet even this important ceremony, the Kiddush, may at times be postponed. For example, generally the Seder should take place when it is dark because it is analogous to the Passover lamb eaten in Egypt, which, according to the Bible (Exodus 12:8) took place at night. Nevertheless, according to the law (Orah Hayyim 472:1), if for the sake of the children (and we may well say if for the sake of older people also) the Seder is to be held earlier than nightfall, then the head of the house must postpone the Kiddush until it is dark. If, then, the Kiddush, which is indispensable to the Seder and to the announcing of the holiday, may be postponed until after the Seder has gone on for a while, it stands to reason that the holiday light, which is not so firmly founded in the law, may certainly be postponed.

Actually, we do not need to rely solely on the above inference. There is, in fact, a close analogy to this proposed postponement of the candle lighting. The Talmud (Berachos 27b) speaks of Rabbi Josiah, who would pray the weekday prayer (i.e., Maariv or Havdala) while it was still Sabbath. The Tosfos comments that normally this should not be done, for we should lengthen the sacred day (the Sabbath) and not shorten it. But in case of necessity, for the sake of a mitzvah, the Sabbath may be thus shortened. This becomes the rule in the Shulchan Aruch (Orah Hayyim 293:3) in the laws of Sabbath-closing, namely, that we may recite the Havdala at plag ha-Mincha, i.e., just before dusk. But if that is done, one must leave out the blessing over kindling the light (M’orey ha-esh) because the Sabbath is not really over, and it is still forbidden to light fire. Thus there is a real precedent in the law for delaying the candle-lighting at this Seder.

The above refers to any Saturday night, but the law is even more direct and refers precisely to the situation this year, when the Seder comes on Saturday night. On that occasion (see Orah Hayyim 473:1 and Chayye Adam, Laws of Seder), the first of the four cups, which is the Kiddush cup, must be part of the larger Saturday night Yom Tov prayer (Yaknehaz), which combines both Kiddush and Havdala (especially the blessing over light, M’orey ha-esh). The law states that if, when the Seder is on Saturday night, the man forgets to recite (with the first cup) the blessing for the light and the other Havdala prayer, then he should nevertheless continue with the Seder and wait to pronounce the lightand-Havdala blessing till after most of the Haggadah is over and before the meal begins. This is very close to the procedure that is suggested by the question (Orah Hayyim 473:1).

Therefore, the proposed idea to light the candles later in the Seder not only is unobjectionable, but may even be considered desirable, since it avoids the violation of the Sabbath and, further, has a firm basis in the law.

RRT 57-62

CEMETERY MEMORIAL SERVICE ON SECOND DAY ROSH HASHONAH

QUESTION:

Our congregation plans to have a congregational memorial service in our cemetery on the second day of Rosh Hashonah. Does this type of service on that date comport with the traditional spirit of Rosh Hashonah, or should the service be discouraged as contravening the mood of the holiday? (Asked by Rabbi Elbert Sapinsley, Blucfield, West Virginia.)

ANSWER:

IT IS NOT CLEAR from the question whether this cemetery memorial service on the second day of Rosh Hashonah is one that had been held by the congregation in past years, or whether this is the first time that such a service is being proposed. If it is a service which already has been observed for a number of years, then it already has some standing as an established local minhag. Such a local minhag always has some validity unless, of course, there are certain strong objections to it. However, if this is the first time that such a service is proposed, then it should be subjected to still closer scrutiny as to its possible disharmony with Jewish tra dition. In either case, we are dealing here with a type of service which at present is not widely observed in Jewish life, nor is it spoken of in Jewish traditional literature. Therefore it must be judged on the basis of a careful analysis of the mood of the New Year.

Does the mood of Rosh Hashonah include any element of festivity and happiness which might be marred by such a memorial service? The Shulchan Aruch is quite clear on the matter. In Orah Hayyim 597:1 the law states definitely: “We eat and drink and rejoice on the New Year, and we may not fast on it.” This law is based upon Ezra’s statement when he addressed the people on the New Year (Nehemiah 8 : 9 -10) . He said: “This day is holy to the Lord. Mourn not nor weep, neither be ye grieved, for the joy of the Lord is your strength.” This festive mood is also expressed in our custom of eating apples dipped in honey and of asking for a “year that is good and sweet.”

Since, then, Rosh Hashonah is a day on which “we are forbidden to grieve,” does it not seem that a communal cemetery service would contravene the mood of the festival? This question is answered clearly in the synagogue’s tradition. Fasting is indeed forbidden, but a communal memorial service would not at all mar the mood of the day. This is evident from the services on Passover, Shavuos, and Succos. These three festivals are completely joyous. Not only are we forbidden to grieve on them (as the Shulchan Aruch ordains for Rosh Hashonah), but we are ordered positively to rejoice on them and do nothing to spoil the happiness of the festivals. Yet in spite of this mandated rejoicing, the last day of each of these three festivals has a communal memorial service for the dead, namely, the Yizkor. This memorial service was originally held on Yom Kippur alone, a day on which it was completely appropriate. But from Yom Kippur it spread to these three festivals.

Surely this memorial service, Yizkor, would seem to be a violation of the mandate to rejoice on the three festivals. However, the contradiction in mood is explained away to some extent by the statement of Isserles in Orah Hayyim 288:2, where he speaks of the memorial mood in relation to the Sabbath (for example, the reciting of A v Ho-Rachimim, the prayer for the martyrs). He says that to weep for the departed is not entirely sorrowful. After all, tears often relieve the heart and bring consolation. Whether or not this explanation is adequate, the fact remains that for centuries now the Yizkor, a public and personal memorial service, has been a regular part of the synagogue ritual on the three joyous pilgrimage festivals.

Now the basic mood of Rosh Hashonah is quite different from that of the three festivals. We are indeed forbidden to grieve or fast on this day. Nevertheless, the main mood of it is not joyous at all. This is to be noted from the liturgical rule that for Rosh Hashonah we must change the happy phrase regularly used in each Shemone Esra of the three pilgrimage festivals. On these festivals we use a sentence thanking God for bestowing on us “festivals of joy and seasons of gladness.” This sentence must be omitted from the Shemone Esra of the New Year. The liturgical rule is given in Tur, Orah Hayyim 582, and goes back to the authority of the Gaon Hai.

Rosh Hashonah is primarily the Yom Ha-Din, the day of solemn self-judgment. If, in the development of the liturgy, it had happened that the Yizkor service had expanded from its original place on Yom Kippur and moved to the Rosh Hashonah service, this would certainly have been more appropriate than its moving to the three pilgrimage festivals, which actually occurred. Perhaps the reason that Yizkor did not carry over to Rosh Hashonah is that Yom Kippur, which already had the service, was only a few days away and both days are a unit as “Days of Awe.” At all events, it is clear that a memorial service as here proposed would not be at all discordant with the mood of the New Year.

Besides this question of the basic mood of the festival, a second question arises. The regular synagogue Rosh Hashonah services are solemn enough. Would it not be excessive, therefore, to add another solemn service in addition to the synagogue service and outside of it? Here again tradition gives us a clear precedent. In the Middle Ages there had indeed developed a service of penitential type on Rosh Hashonah outside of and in addition to the regular synagogue liturgy. This is the widely observed Tashlich service. On the afternoon of the first day of Rosh Hashonah, the people go to the river, shake crumbs from their garments, and speak prayers dealing with the forgiveness of sins. This custom is comparatively new. It is not mentioned in the Mishnah or the Talmud. Nevertheless, by the Middle Ages it became firmly established. Some authorities say that the water to be visited for the Tashlich should be a lake or a river where fishes are seen to swim about, thus to convey the idea that like fishes in a net, we are caught in the toils of life and death and must repent. The penitential mood of Tashlich is certainly close to the mood of the proposed communal memorial service on Rosh Hashonah.

A third and final question needs to be mentioned. Is it appropriate that this communal memorial service should be held in the cemetery? For a communal service in the cemetery there is more of a precedent than for the Tashlich. The Talmud, in Ta’anis 16a, says that on every fast day that is proclaimed, people should go to the cemetery to pray. In fact, if there is no Jewish cemetery available, they may go to a non-Jewish cemetery, for there too they would achieve a penitential mood.

Of course Rosh Hashonah is not a fast day for which the Talmud speaks of holding cemetery services. Nevertheless, it is worth noting that among the days when it is customary and appropriate to visit the cemetery are the “Ten Days of Penitence.” Since we in Reform Judaism observe only one day of Rosh Hashonah, the second day of Rosh Hashonah may well be deemed for us to be the first day of the Days of Penitence on which cemetery visitation is traditional.

To sum up then: The mood of a communal memorial service, such as Yizkor, has spread from its original observance on Yom Kippur to the last days of the three joyous pilgrimage festivals and is not considered as marring their mood of happiness. Rosh Hashonah has some touch of the joyous holiday spirit but is mainly penitential, and therefore a communal memorial service, such as Yizkor, would have been even more fitting had it developed on that day. As for our adding a new memorial service on Rosh Hashonah to be held outside the synagogue, this too has its precedent in the post Talmudic ceremony of Tashlich. Finally, among the days deemed most appropriate to visit the cemetery are the Ten Days of Penitence; and for us, who observe one day of Rosh Hashonah, the second day of Rosh Hashonah counts as the beginning of our penitential days.

For all these reasons, one may well say that a congregational cemetery memorial service on the second day of Rosh Hashonah is not at all inappropriate and might well become an established custom among us. Possibly it might be preferable if this service is not held in the morning, when the regular Rosh Hashonah services are being held in Orthodox and Conservative synagogues, but, perhaps, on the afternoon of the second day of Rosh Hashonah, which is exactly when the Tashlich service is held when the first day of Rosh Hashonah happens to be on the Sabbath.

RRT 279-281

THE “KERIAH” RIBBON

THE LAWS GOVERNING the tearing of the garments at the death of a relative (keriah) are detailed, extensive, and very strict. In the Shulchan Aruch, they occupy an entire large section of thirty-nine subdivisions ( YoreDeah 340). There the law is given that whoever is present at the death of a worthy Israelite must tear his garments. Even if not present at the death, relatives must tear their garments for the seven relatives for whom they are in duty bound to observe mourning. For a parent the laws are stricter than for other relatives. While for other relatives it is sufficient if one garment is torn, for a parent all the garments must be torn until the heart is exposed.

With all these strict detailed laws, it seems strange that it has become customary among modern Orthodox in America not to tear the garments at all, even for the death of a parent. It is now a widespread custom in many (modern) Orthodox funerals for the undertaker to pin a small bit of black ribbon (about four inches long) onto the garment of the mourners and to cut that ribbon in lieu of keriah. Greenwald, in his compendium of mourning laws, is shocked at this new custom. He calls it “a mockery and a joke,” and he blames it on the undertakers, who, he says, violate the old laws and make laws for themselves.

Yet, although this black keriah ribbon is a mere evasion of the required tearing of the garments, nevertheless questions of observance and proper usage have already begun to cluster around it. People ask for guidance as to how long the ribbon should be worn. Should it be transferred from one garment to another during the week of shiva, or during the thirty days of mourning, shloshim?

Of course there can be no definite answer to these questions because they are based upon a new American usage which all Orthodox authorities would scorn (as Greenwald did) as an avoidance of the basic religious obligation. Nevertheless, evidently rabbis are groping about for answers to the questions that are now being asked of them in this regard.

If an answer can be given at all, it must be based upon the distinction which the laws of keriah make between the keriah observance for parents and the observance for other deceased relatives. For parents, if during shiva the mourner changes from one garment to another, he must tear this second garment, but for the other relatives one need not do so. So one might answer, then, that if it is a mourning for parents, the ribbon should be transferred from one garment to another during the mourning period.

And people also ask how long the ribbon should be worn. That, too, may be answered by analogy. For all other relatives the tear may be basted up after seven days (and permanently sewn after thirty days). But for one’s parents, one may not even baste it until after thirty days. Thus one might extend this to apply to the ribbon and say that the ribbon, when mourning for a parent, should be worn for thirty days and for other bereaved for seven days.

But it must be understood that all the above suggestions are merely theorizing on the basis of analogy. The whole use of the ribbon, instead of actual tearing of the garments, is brushed aside as meaningless by Orthodox authorities.

RRT 266-270

POSSIBLE PIDYEN OF SECOND SON

QUESTION:

In the law of redeeming the first-born son, Scripture speaks specifically of “opening the womb.” Therefore the following question arises: Suppose the first-born child was born by Caesarean operation and is, therefore, not eligible for pidyen, not being “the opener of the womb”; then a year later a son is born in the normal way; does the second son, being “the opener of the womb” require a pidyen? (Asked by Rabbi Kenneth Segel.)

ANSWER:

THE LAW IS STATED in Scripture in Numbers 18:15 as follows: “Everything that openeth the womb . . . both of man and beast … the first-born,” etc. The law thus mentions both requirements for redemption, namely, “the opener of the womb” and “first-born.” This dual requirement in the law becomes relevant in the later discussions of the question raised here. The two qualities are mentioned, for example, by Rashi to Bechoros 19a, in which he speaks of the first-born of “Vlados,” i.e., the order of birth, and the first-born of “Rachamim,” “the opener of the womb.”

Since Scripture mentions in the same verse both the redemption of a human child and also the redemption of the first-born of cattle, the law involved in the question asked is discussed both for cattle and for humans. The Mishnah (Bechoros 2:9), speaking of cattle, discusses the situation in which one calf is taken out of its mother’s body by Caesarean and the other is born naturally from the womb. In that situation, Rabbi Tarfon thinks that there exists some doubt as to which is truly the first-born, and therefore, because of this doubt, neither may be used by the owner. Both calves must be allowed to graze until they become overaged. However, Rabbi Akiba says that neither is “first-born” (in the sense of requiring redemption). The law is according to Rabbi Akiba—namely, as the commentators explain, for the calf to require redemption it needs to have both qualities, “first-born” and “womb-opening.”

Now this question is raised in the same tractate (8:2) in the case of humans. If the first child is born by Caesarean and the second is born from the womb, Rabbi Simon has the same doubts which Rabbi Tarfon voiced with regard to calves, and thinks that each child has some qualities of “first-born.” But the anonymous Mishnah states that neither requires redemption; and that is the law. Thus, too, the law is given by Maimonides (Yad, Hilchos Bekurim 11:16), who says simply that if one child is taken from the side (i.e., by Caesarean) and the other is born normally, both of them are free from redemption; the first because he did not go forth from the womb, and the second because another child had preceded him. And so the law is given in the Tur and the Shulchan Aruch, Yore Deah 305 (Y.D. 24).

Thus the law seems clear enough that the second son does not require redemption. However, there is some doubt involved in this question due to what might be called medical reasons. Both the commentator Bertinoro and Lifschitz (Tiferes Yisroel) say that this situation can only apply to twins, first of all because the analogous law with regard to the birth of the calves clearly deals with twin calves, and second for the following medical reason: Bertinoro says that the Rambam (who was, of course, a famous physician) said that in the case of a human mother, it is impossible for her to undergo a Caesarean operation and heal up sufficiently so that at a later date she can have a normal birth from the womb. Therefore, these commentators say, this law applies only in the emergency case of human twins, which evidently means that the mother will be dying of the Caesarean but before she expires the second child is born normally.

However, it is to be noted that Maimonides himself, in giving the law, does not restrict it to the birth of twins, nor does the Shulchan Aruch or any of the Codes so restrict it.

As for the statement ascribed to Maimonides by Bertinoro, Maimonides may have stated it so elsewhere, though not in his Code, as far as I can see. It is true also that the opinion ascribed to Maimonides by Bertinoro was held up to modern times by physicians. The rule was often cited as follows: once a Caesarean, always a Caesarean. But I inquired of a well-known gynecologist, who told me that medical and surgical practice has improved in recent years and that if, for example, the first Caesarean was made, not because of a narrowness of the passage but because of some infection, then it is quite possible, and, indeed, it happens, that the mother recovers from the Caesarean operation and at a later time can give birth in the normal way.

It is not an infrequent situation in the law that the law takes cognizance of changes in medical practice, and so it is clear in this case that the law is as stated. The second child, born a year or so after the Caesarean, requires no pidyen, since the two qualities mentioned in the original Scripture text, “womb” and “first-born,” do not apply to him.

ADDENDUM

It is worthwhile noting that Bertinoro (16th cent.) actually overstated the medical opinion of Maimonides (12th cent.). According to Bertinoro’s commentary (Bechoros XIII, 2), Maimonides said that it is impossible for a woman to recover from a Caesarean operation and be able to bear a child normally in the future.

The statement which Bertinoro refers to was made by Maimonides in his commentary to that Mishnah. What Maimonides actually said there (although it amounts to nearly the same thing) is the following: As to what people tell about (i.e., that a woman can recover from a Caesarean and later bear a child in a normal way), I cannot explain it; for that would be a very astonishing occurrence (davar n ifla m’ode).

The modern edition of the Mishnah commentary of Maimonides was made by Joseph David Kapach (Jerusalem, 1967), and he comments on Maimonides’ strong doubts. He says: “What was astounding in the days of our teaching [Maimonides’] is now, with the progress of medical science, an everyday occurrence.” In this way the legal literature takes note of medical progress.

At all events, while Maimonides would consider a normal child-birth after a Caesarean (except for twins) as “an astounding phenomenon,” that opinion of his would not lead him to state that if such an astounding phenomenon did occur, the second child would need redemption. Therefore in his Codes, as in all the Codes, the law is simply stated that neither child needs to be redeemed.

RRT 232-237

ANNULLING RABBI’S ORDINATION

QUESTION:

Is it possible to have a rabbi’s semicha taken away from him for reasons of moral turpitude? Have there been such cases in Jewish history? (Asked in a class of Rabbi J. B. Goldburg, Des Moines, Iowa.)

ANSWER:

THE QUESTION OF whether a rabbi can be “defrocked” is a complicated one because the meaning of ordination and the status of the rabbi have drastically changed in Jewish history. As for ordination, originally it was a mystical or spiritual transfer of sanctity by the laying on of hands. It was a process presumed to have begun by Moses, and carried on uninterrupted from ordainer to ordainee. This process ceased in the third century (although Maimonides hoped to restore it). It was, however, taken up by the Christian Church and greatly treasured as an evidence of the special sanctity of the sacraments by an ordained priest. Hence the dispute in the Church about “unbroken apostolic succession.” As for us, in place of the mystical ordination, we have hataras ho’roah. This is popularly, but erroneously, called semicha, although no laying on of hands (semicha) is involved. Our modern hataras ho’roah is merely a teacher’s certificate, a statement by one or a number of scholars that this person has studied and now has permission to serve as teacher, or rabbi.

It is clear that the two types of ordination differ as to their permanence inherent in the person ordained. It is hard to see how a sacred status, once bestowed, can ever be removed; but a teacher’s certificate may certainly be retracted if subsequent events, for example, prove that it was given by mistake. Maimonides, in his responsum cited by David ibn Zimri (his successor in the rabbinate of Cairo), says that no one may be removed from the historic Sanhedrin once he has been appointed there. The reason for this inviolability of status in the Sanhedrin was due to the fact that no one could serve as a member of the Sanhedrin unless he had the true ordination. On the other hand, in his Code (Sanhedrin 17:9) he says that the head of a Yeshiva who has sinned is removed and is not restored to his position. David ibn Zimri explains it by saying that the members of the high Sanhedrin in Jerusalem could not be removed, but a teacher of the Torah may be removed.

However, there was great hesitation about the removal of a teacher or, as we would say, a rabbi. The Talmud states in two places (Moed Katan 17a and Menachos 99b) that if a teacher has sinned or has to be put under the ban, this must not be done publicly, but secretly. Resh Lakish bases this caution on the verse in Hosea 4:5, which says: “Therefore shalt thou stumble in the day, and the prophet shall also stumble with thee in the night.” In other words, the disgrace that comes to the prophet is also a disgrace which comes to the people; both of them stumble together. Then Resh Lakish emphasizes the phrase “in the night” and says: “Keep the disgrace as dark as the night.”

Thus, whenever it was necessary to rebuke or to punish a leader of the community, it was important to keep it quiet and so avoid public shame. Aside from the question of public shame involved, we must note that while the rabbinate is a profession, and a rabbinical position is based upon the choice of the congregation, the rabbi is considered to have a special status which gives him almost automatic tenure in his position. Note the following in the responsum on tenure in Contemporary Reform Responsa:

To sum up: The general principle that “we do not degrade in holiness” (En Moriddin Bakodesh) stands against removal of any appointee of a congregation for sacred work. Such removal was possible, however, in the early days when the rabbinate was not a profession. After it became a profession it is unheard of that a rabbi be removed after the formal term of three or five years mentioned in the rabbinical contract has passed.

Of course that does not mean that they were insensitive to an unworthy person functioning as a leader in public service. The Talmud (Berachos 32b) says that a priest who has killed somebody should not lift up his hand to bless the people, and the proof verse that is cited is from Isaiah 1:15: “When you lift up your hands, I will hide my face from you. Your hands are filled with blood.” The Shulchan Aruch (Orah Hayyim 128:35), giving this as a law, says that even if the priest killed a man by accident, and even if he has made full repentance, he shall not publicly stand up to bless the people. (However, Isserles is more lenient to the repentant priest.) Thus we see that the law is, indeed, sensitive to ethical purity on the part of leadership, but it is hesitant in taking drastic steps because of the public shame involved.

The specific question asked here is whether any such cases have actually arisen. We may say theoretically that such cases must indeed have arisen, considering the complaints that are found in the literature about men who have received their rabbinate through the influence of the secular authorities. In other words, there is an awareness in the literature of unworthy men occupying the position. As to actual incidents, there are some discussions in the responsa literature. The great Hungarian authority Moses Sofer, in his responsa (Choshen Mishpot 162), discusses the case of a rabbi against whom pious members of the community made a series of complaints. The first complaint was that the rabbi was not observant about hand-washing, grace after meals, etc.; the second, that he was too lenient in his decisions about Kosher and Trefe; and the third was that he gave divorce documents (gittin) in a city where no divorce documents should be issued. (There is an objection in Jewish legal practice to giving a get in a city where no legal get had been given before because the various spellings of the names and the status of the city on rivers were never settled, and the wording of a get must be precise. In the case discussed here, a well-known rabbi forbade any get to be written in the city where the accused rabbi lived.) As for the first two objections, Moses Sofer is doubtful whether the rabbi should be removed; but as for the third, with regard to the get, he states clearly that this cannot be forgiven. He says, therefore, that they should take away from him the hataras ho’roah because it was given to him by rabbis before they could have known the evil that he has committed (in other words, his ordination was an ex post facto mistake), and he says specifically: “They shall take from him completely the crown of the name of Rabbi.”

On the other hand, a later responsum by the great Galician authority Sholom Mordecai Schwadron (II, # 5 6) comes to a different conclusion (because the case was different). But it has its special interest: A rabbi of Rumanian origin was established as a rabbi in Manchester, England. He then moved to London. The Chief Rabbi, Adler, wanted to have him removed from the rabbinate, but the Sephardic Rabbi Gaster (who was also a Rumanian) came to his defense. Schwadron discusses all the material cited above and comes to the defense of the rabbi.

In summary we may say that the rabbinate today is a profession and does not have the mystical holiness of the old ordination. Nevertheless, the rabbi’s status is involved in the honor of the whole community, and therefore public disgrace is to be avoided. However, it is clear that cases came up in which scholars recommended that a rabbi be deposed. But even so, many scholars (cited by Moses Sofer, ibid.) said that the members of his community are not always to be trusted as witnesses against him because they may be motivated by hostility that has grown up between the rabbi and them. In brief, a rabbi can be deposed, as Moses Sofer says, and the title “rabbi” should not be used by such a man. Yet the cases are rare, and for the sake of the public good, they are handled with caution.

RRT 90-94

WOMAN DOCTOR AS MOHEL

QUESTION:

Women in increasing numbers have entered the medical profession, and many of them are obstetricians and gynecologists. Since it is a growing custom among Jewish parents (especially non-Orthodox parents) to have their baby boys circumcised in the hospital by the obstetrician, this raises the question whether, according to Jewish tradition, a woman (and even a Gentile woman) is eligible to perform the operation of milah. (Asked by L.S.F.)

ANSWER:

THE GENERAL QUESTION of who may circumcise was discussed in Reform Responsa, responsum #24, p. 105. Since, however, the above question adds an entirely new element, it seems worthwhile to review, first of all, the general background as mentioned in that responsum. The law as it stands is given in summary in Shulchan Aruch, Yore Deah 264:1. It begins with the general statement that “all are eligible to perform circumcision, even a minor, even a slave, even a woman; and even an uncircumcised Jew, provided there was a medical reason [i.e., hemophilia] for the circumciser not being circumcised.”

This general statement is followed by exceptions, mostly made by Isserles, who ends up with the statement that “a man should seek around for the best and most pious mohel. ” Nevertheless, it must be pointed out at the outset that a mohel is not in any sense an official functionary of the community. A rabbi or a cantor must be appointed formally by the community. A shochet must get a special certificate from the rabbi ( kabbala) attesting to his knowledge of the laws of shechita and his skill, but there is no license, no appointment, required for a man to be a mohel. Anybody who is skilled can perform the function (of course, with the exceptions referred to above). The father himself is, in fact, expected, if he is able, to circumcise his own child; if not, he can pick anybody who is skilled to do it for him. That is why Isserles says one should “look around for a skilled and pious person.” In other words, the mohel is not a functionary. Anybody who is suitable and capable can serve.

However, there is a difference between this general legal permissibility and the strong preference of pious people. For truly Orthodox Jews, the various permissibilities in the law are of no importance. What matters is to find a truly pious (and, of course, skilled) mohel.

This preference was expressed most strongly by Rabbi Eliezer Silver (Honorary President of the Agudas Harabonim), quoted in Taharas Yom Tov by Yom Tov L. Deutsch, Vol. VIII (see Hamoar for Elul 1957). He said: “I have forbidden physicians, most of whom are not observant Jews, to circumcise, but have permitted only skilled mohelim who are religious to approach the fulfillment of this commandment.”

This is, of course, a strict decision beyond the actual requirement of the law, but still it is a permissible one. The rabbinical authorities may always make extra-cautionary decisions, forbidding what may actually be permitted, in cases where they feel the religious situation requires such strictness. These extra prohibitions generally apply for the time of the emergency and in the city of the rabbi’s authority. That is why Rabbi Silver continues: “Thank God, in my city [i.e., Cincinnati] and in my area they listen to me, and they do not permit just any physician to perform the circumcision.” However, aside from this local, extra strictness, our concern is: What is the actual state of the law?

1. There is no question that a Jewish physician who is himself circumcised may legally perform the ritual circumcision. The only question about a Jewish physician arises from the concern expressed by Isserles (ibid.) as to a nonbeliever. Isserles says that a man who rejects the entire Torah or rejects the idea that circumcision is a Divine commandment (i.e., a mumar, one who turns aside or rebels against the Torah), such an irreligious doctor may not legally circumcise. This question has been discussed by many modern authorities, and the tendency of their decision is to be lenient on the matter. The question of the irreligiousness of the Jewish physician is fully discussed by David Hoffmann in his Melamed L’ho-il ( Yore Deah, responsum #80), and he shows that most authorities are lenient on this matter, and even those who are inclined to be strict and agree with Isserles (that a nonbelieving doctor is ineligible) nevertheless grant that if no other mohel were available, he would be acceptable. There is, therefore, no question that a religious Jewish doctor may circumcise and that even a nonreligious one is acceptable when no other is available.

2. May a Gentile doctor perform the operation? The laws which forbid a non-Jew to circumcise were based upon the fact that in the early days every non Jew was an idolater, and there was fear that the idolater would harm the child (see Tosefta, Avoda Zara, 3:12). However, even an idolater was permitted if others were present or if he were a professional. So Israel of Kremsier (14th cent.), in his Hagahos Asheri to the Rosh, b. Avoda Zara 27a, says: “All prohibitions against using Gentile physicians [in general] apply only if the healing by a physician is done by an amateur and without pay, but if done by a professional and for pay, it is absolutely permitted.” Of course, in the spirit of the law, if a Gentile doctor is to do the circumcision, the family should be present, and, of course, the ritual prayers, etc., should be recited by a rabbi or a member of the family.

3. The question of whether a woman may circumcise is based upon the discussion in the Talmud {Avoda Zara 27a) between Rav and Rav Yochanon. The debate centers upon the question as to which is the crucial verse in the commandment given to Abraham when he is given the command to circumcise himself and his family. Rav says that the crucial verse is “Thou shalt keep my covenant” (Genesis 17:9), and Yochanon says that the crucial verse is “Let all born in thy household be circumcised” (17:13). From the analysis of these respective verses, Rav concludes that a woman may not circumcise, and Yochanon concludes that a woman may circumcise. The Tosfos (ad loc.) says that the law is according to Rav arid that a woman may not circumcise; whereas almost all other authorities declare that in all disputes between these two scholars, the decision is according to Yochanon, and most of them agree that a woman may circumcise. Therefore she is listed in the Shulchan Aruch among those who may circumcise. But, of course, it is added that one should in preference look for a skilled man to perform the circumcision.

Let us say, then, that the situation of the law is as follows: Orthodox Jews, out of the natural desire to avoid such changes in practice as may affect Orthodox life, will always prefer a pious mohel. Other people, less Orthodox, will have the physician perform the operation whether he is personally religious or not, and when no Jewish doctor is available, will have a Gentile obstetrician perform the operation; and if the obstetrician is a woman, she will perform the operation. As to all these choices by non-Orthodox Jewish families, it can be said that they are going counter to Orthodox preference; but it cannot be said that such choices are violative of Jewish law.

RRT 274-277

JOINT MIKVEH AND BAPTISTRY

QUESTION:

The military is working on new plans for the building of chapels for the joint use of the different religions. Consideration is being given to the inclusion of a pool which can be used both as a baptistry by Baptists and a mikveh by Jews.

The purpose of this inqury is to learn whether, if the pool is built as a kosher mikveh, would those who follow the traditional Jewish law be able to share their kosher mikveh with those who use it for baptizing Christians.

Of course the oceans and streams were the original sources of mayim hayim —used by both Jews and Christians to meet their respective needs. (Asked by Rabbi Aryeh Lev, Director of the Commission on Jewish Chaplaincy.)

ANSWER:

BASIC TO THE INQUIRY is the larger question, whether a chapel used by Catholics and Protestants may also be used by traditional Jews for regular worship, provided, of course, that the ritual objects specific to one religion are removed before the chapel is used by another re ligion. It is true that this question was settled pragmatically during the war, but that was under war conditions. Now that we are not at war, the question of the propriety of using such a joint chapel may well arise again. Besides, the question of the usability of a joint chapel has direct bearing on the specific question asked here, namely, the joint use of an immersion pool by Baptists and traditional Jews.

All the laws stemming from the Bible against close association with non-Jews refer specifically to idolaters, which all the non-Jews in earlier days were. However, it must be clearly stated that in the eyes of Jewish law, Christians are not idolaters and, in fact, Rabbenu Tarn and other prime authorities state that when Christians speak of the Trinity, etc., they really mean God (see the references given in Isserles to Orah Hayyim 156).

Nevertheless, although Christians are not deemed to be idolaters, many of their ritual objects, such as crucifixes, etc., are deemed to be idolatrous objects (indeed, many Protestants also consider them to be such). Therefore the question arises in the law as to Jewish worship in a place where there have been or there are such objects as crucifixes, etc. Specifically the question is asked: Suppose crucifixes were brought into a Jewish house of worship and then removed; could the house be used for Jewish worship thereafter? Elijah Mizrachi (in his Kenesses Hagdolah, Orah Hayyim 151) says that a synagogue is not invalidated if the idols are removed from it, and the Mogen Avraham to Orah Hayyim 154 (end of par. 17) says that the reason this is so is that the building itself was not dedi cated to idolatry, and therefore it does not lose its sacredness after the objects are removed.

Now, if a synagogue is not invalidated if Christian symbols are removed from it, then this applies all the more to a mikveh for the following reasons: A mikveh is not a sacred object, as a synagogue building is. A synagogue building has sacredness inherent in it even when it is in ruins. But no one would argue that a ruined and abandoned mikveh has any inherent residual sanctity and therefore must be respected. A mikveh is only a convenient appurtenance to the mitzvah of the ritual bathing, which in fact can take place anywhere. The bathing can be legally fulfilled in a river, provided that most of the water in the river is not rain water, but comes from the river source. So, too, a ritually legal bath can be made in an overflowing wave from the sea. Surely no one could argue that since John the Baptist baptized people in the Jordan, the Jordan thereafter could not be used for Jewish ritual bathing; or that a seacoast would be forbidden if Christians were baptized a little farther up the coast.

But actually we do not need to rely upon this a fortiori argument (i.e., if a synagogue once used by Gentiles is usable, then surely a mikveh, which is less sacred, is usable). The actual fact is that they frequently used mikvehs that belonged to Gentiles and were on Gentile premises. Asher ben Jehiel takes that fact for granted in the question that was asked him about such a mikveh (see his responsa, sec. 18, #8). All he is concerned about is whether or not a Gentile might be suspected of filling the mikveh with rain water from the roof when it needs replenishment; to which he replies that if the diminished mikveh still has twenty-one seahs of proper water (i.e., more than half of the forty seahs required), the addition of the rain water will not invalidate it. This is cited by Asher’s son, the Tur, in Yore Deah 201, and a full discussion is given by Isserles in Yore Deah 201:4, and he indicates that if we know that the mikveh was filled by a Jew according to law, it is certainly a legal mikveh.

To sum up: A synagogue is not invalidated by the fact that idolatrous objects were once in it. All the more is it true that a mikveh, which is a mere appurtenance to the mitzvah of ritual bathing, is not invalidated if it were used by non-Jews. Furthermore, the law specifically mentions mikvehs actually belonging to Gentiles, which are kosher if properly filled, just as a river, which is generally kosher for Jewish ritual bathing, is not made useless by the fact that Gentiles baptize in it, even in the vicinity of Jewish bathing. We might add that Baptists certainly avoid crucifixes, etc.

The military authorities may well be informed that if the mikveh is made according to Orthodox rules, its use is not inhibited if Baptists use it also.

RRT 25-27

TALIT AND MEZUZAH TO GENTILES

QUESTION:

A Christian minister is to participate in a joint service with us in the synagogue. He is eager to wear a talit as the rabbi does. May we give him one to wear? Also, a Gentile friend asked for a mezuzah to be affixed to his door. Should that be granted? (Asked by Rabbi Jay B. Goldburg, Des Moines, Iowa.)

ANSWER:

THESE QUESTIONS come up frequently in the increasing ecumenical meetings between rabbis and the Christian clergy. While in Reform Judaism we do not ascribe especial sanctity to ritual objects, nevertheless we should be considerate of their use. It is therefore of importance to consider the attitude of traditional Halacha on these questions.

The four questions asked are really two. The first two questions involve the lending of a talit to a Christian minister to wear during a joint service. The answer depends on the classification of the talit in the order of sanctity ascribed to the various articles of worship. Some articles, such as the mantle of the Torah and the ark in which the Torah is kept, are called “appurte nances of sanctity” (tashmishey kedushah). Other objects, such as a Succah and a lulav after the holiday, and fringes, are of a lower degree of sanctity. They are considered “appurtenances of a mitzvah” (tashmishey mitzvah).

The law has, naturally, a different attitude to the “appurtenances of sanctity” (such as Torah mantles, etc.) than it has to the “appurtenances of a mitzvah.” The general principle is stated quite clearly in the Talmud (Megillah 26b), namely, that when these objects are no longer to be used, they, respectively, must be treated differently. The principle is stated there tersely as follows: Appurtenances of a mitzvah can be thrown away. Appurtenances of sanctity must be hidden away (nignozin), i.e., kept in a special place or buried. The Shulchan Aruch, in Orah Hayyim 21, says that the threads of a talit no longer used or broken “may be thrown onto the ash heap because it is an appurtenance of a mitzvah and not inherently holy.” Of course, as long as the fringes are in the talit they should be treated respectfully. However, it will be noticed in Orah Hayyim 21:3 that it is permitted to go to the toilet wearing the talit, and Isserles adds that it is permitted to sleep in it.

If, therefore, the talit may be worn in all sorts of places, and if its fringes (when separated) may even be tossed onto the ash heap, there is no question that one may lend it to a Gentile minister who will handle it reverently. In fact, thus we will fulfill the basic mitzvah of acting “to follow the paths of peace” (mipney darche shalom). As you will see, the same principle is involved in the second question.

The second question is whether it is permitted to give a mezuzah to a Gentile to affix on his doorpost. Or if a Jew moves from his house or rents it to a Gentile, whether he may allow the mezuzah to remain on the doorpost. Actually, only a house inhabited by a Jew requires a mezuzah. Thus, for example, if a Jew rents a house from a Gentile landlord, he must affix a mezuzah. If a Jew rents a house to a Gentile tenant, the mezuzah, if there was one there, must be removed (see the discussion in Yore Deah 291:2).

The note of Isserles is of considerable interest in this matter. He cites a responsum by Maharil of Mainz (14th cent.) that even if the Gentile asks for a mezuzah to be affixed on his doorpost, we may not give it to him. It is of interest to note that even in the fourteenth century in the Rhineland, Gentiles occasionally would ask for mezuzahs to put on their doors. However this prohibition by Maharil was evidently not firmly based because Isserles, in the sixteenth century, contravenes it. He says: “If the refusal to give the Gentile the mezuzah would create ill will, we may give it to him.”

Thus we see that both the question of the talit and the question of the mezuzah are related in the question of ecumenical relationships. In Jewish law such relationships are stated in two ways: in a positive way “because of the paths of peace,” and in a negative way “to avoid ill will” (meshum evah).