Tag Archives: halakha

Essays by Raḥmiel Ezra Travitz

About the author: I love studying and the pursuit of knowledge. I have wide-ranging interests in many fields, including philosophy (especially epistemology and legal philosophy) and specifically Jewish philosophy; Jewish law, western law and comparative law, politics, general semantics and languages (including ancient languages and comparative language), psychology, economic theory, anthropology, and much more.

Rabbinical College of Australia, Talmud and Jewish Studies, Alumnus
Deakin University, Faculty of Arts and Education, Faculty of Business and Law, Undergraduate

Calligraphic Art by Rahmiel Ezra Travitz

 

The Original Source and Halakhic Status of the Custom of wearing Costumes on Purim

The Custom (Minhag) of Eating Dairy on Shavuot

Practical Guide to the Laws of Ḥanukka according to the Geonic/Maimonidean Tradition

Responsum on the Applicability of Decrees and Laws in Changing Circumstances in Jewish Law: the legal principles ‘Shema’ and ‘BeMiltha deLo Shekhe’ha Lo Gazru Rabbanan’ in Jewish Law

The Arabic Poem “I am the Iraqi, I am” by Emile Cohen, with a Historical and Explanatory Commentary

The Lubavitcher Rebbe’s Decree Against Drunkenness (Booklet titled “To Drink Like a Chossid”)

Pages of Talmud

 

Gambling

A Statement on Gambling
Rabbi Henry A. Sosland, 1981

CJLS (Committee on Jewish Law and Standards) of the Rabbinical Assembly

The recent widespread experience of synagogues with the problem of gambling has led to a reappraisal of the subject by the Committee on Jewish Law and Standards. Central to the present concern about games of chance are the long-range consequences for the sanctity and tenor of the synagogue, along with its negative “educational” effect on the membership of the congregation.

Rabbis Ben Zion Bokser, Sanford D. Shanblatt and David Novak wrote responsa on the subject in 1978.1 All of them pointed out the harm of regular gambling within the synagogue as undermining the role of the congregation as the “custodian of moral and spiritual values (with the) mission … to summon man to a higher level of life”(Bokser). All of them are unalterably opposed to such games of chance in the synagogue as a “form of hillul Hashem.” (Novak).

Shanblatt counters many of the rationalizations for bingo. He challenges the claim that the real motive for attendance is amusement rather than making money, noting that there are innumerable other pleasant activities which synagogues might “wisely sponsor,” and that when such games are held for fiscal reasons, “the time spent in soliciting volunteers could be better used in seeking other methods of fundraising.”

It is well to remember that the Committee overwhelmingly approved a teshuvah by Rabbi Phillip Sigal in 1957, which concluded that although no halakhic basis could be given to bar games of chance used for fundraising in the synagogue, “the spirit of the age and of our land may be such as to dictate an evolving halakhic position, or what we call ‘spiritual standards,’ which is part of the approach of this Committee.”2 Basing the prohibition on the need to establish such standards, the Committee clearly opposed any
“games of chance or skill involving stakes.”

While in 1967 the majority of the Committee concurred with Rabbi Fink’s responsum on games of chance that “it is incumbent upon the leadership of our movement to concern itself with the needs of less affluent congregations,”3 a minority sided with Rabbi Aaron Blumenthal’s demurral “that full permission to sponsor bingo can be disastrous to proper fiscal policies and to the moral integrity of the synagogue.”4

Rabbi Novak is quite helpful in his analysis of Jewish law on the subject. The rabbis of talmudic times were obviously men of unusual insight and ethical sensitivity. They went far beyond the simple legality of the problem of gambling. Rav Sheshet’s statement that gamblers are not engaged in socially useful activity (yishuvo shel olam) goes beyond the matter of whether the professional gambler is qualified to become a witness (Sanhedrin 24b). Novak draws attention to the implication “that the gambler makes a negative contribution to society” and that the “overall social consequences” are the real issue here.

The responsa submitted to the Committee in 1978 tended to focus on the view of Rav Sheshet as it specifically applies to what we might call the sphere of influence of the synagogue, as if the synagogue itself, and everything that is done there, or that is affected by what is done there, needs to be considered separately from the secular world. If we then deal with what we might call yishuvo shel alamo shel beit hakenesset, the problem becomes more circumscribed. When the hours spent by synagogue members in supeiVising or playing at regular gambling activities become the major pursuit of those congregants within the congregation, we must be very concerned at how socially useful such hours may be or may not be for the synagogue community and for those affected by-the presence of the synagogue in the area. The proceeds alone from these fundraising activities can hardly be used to justify the results of such long periods of time concentrated on games of chance (diverting so much potentially constructive energy)!

According to Rashi 5 and Maimonides, 6 it is the moral atmosphere that our rabbis must have had in mind when they included the results of gambling as some of the rabbinically prohibited forms of robbery (gezelah derabbanan and gezel medivreihem). Further, Maimonides defined undignified behavior in the synagogue (se}Jok vehitul) with the very same words he used to decry gambling, as Novak notes. 7

The “proliferating increase of gambling in our society” (Bokser) and in the synagogue makes it obvious today that bingo, for example, is not limited to urban areas or to synagogues with serious budgetary problems (which was the main thrust of Fink’s teshuvah). Suburban congregations have often come to adopt games of chance as a solution for their financial situations because they have wearied of exploring more imaginative programs. Further, bingo is no longer primarily of interest to senior citizens, or even to the members of our congregations. Depending on the community, gambling may bring in mostly outsiders of various ages, 124 whose contact with the synagogue may be limited to this one activity each week. That such forms of gambling may occur in other religious institutions is irrelevant. In our secular society, we Jews cannot afford any rationalization which would permit us to ignore the sanctity of the synagogue.

CONCLUSION

In conclusion, the Committee on Jewish Law and Standards urges all members of the Rabbinical Assembly to be alert to the evils of gambling in general, and to oppose not only the more obvious problems of involvement with individuals or groups making a profession of gambling within the synagogue, but even more so the subtle and decidedly unwholesome consequences of gambling as a mainstay of synagogue fiscal management.

NOTES

1. Ben Zion Bokser, “Regarding Gambling,” RALA III, pp. 663-665; Sanford D. Shanblatt, “Bingo: Degradation in Our Midst,” RALA #090678; David Novak, “Gambling in the Synagogue,” RALA III, pp. 651-662 (July 1978) (all unpublished responsa).
2. Phillip Sigal, “Games of Chance on Synagogue Premises,” RALA W, pp. 286-290 (and III, pp. 666-670), 1958, an unpublished responsum.
3. Leon B. Fink, “Games of Chance,” Proceedings of the Rabbinical Assembly XXXI (1967), pp. 209-218.
4. Aaron H. Blumenthal, “Bingo in Conservative Congregations,” Proceedings of the Rabbinical Assembly XXXI ( 1967), pp. 219-221.
5. See Shabbat 149b, s.v. “mishum”; Rosh Hashanah 22a, s.v. “bekubya”; Shevuot 47a, s.v. “mesahek”.
6. See Gezelah 6:10 andEdut 10:4.
7. Tefillah 11:6
Editor’s Note: While the portion of Rabbi Fink’s paper (See Note 3 above) which is cited above implies that he sanctions games of chance, the conclusion of his paper reads as follows: “… although bingo is halakhically permissible, we reaffirm that it is not an ideal or even desirable form of fundraising. However, for the above-stated reasons, we view with extreme disapproval the singling out of bingo as grounds for expulsion of a synagogue from the fellowship of our movement. The United Synagogue should now begin to develop a comprehensive set of synagogue standards which affect all congregations equally, regardless of their financial status.

Mikveh Can Solve Conversion Problem

Mikveh Can Solve Conversion Problem

Leading Conservative rabbi suggests novel idea in bid to broaden the definition of who is a Jew.

By Rabbi Elliot Cosgrove, April 13, 2017

http://jewishweek.timesofisrael.com/mikveh-can-solve-conversion-problem/

Mikveh

Mayyim Hayyim, a beautiful new mikveh in Newton, MA.

Much has changed since our greatest generation was liberated from Egypt, but the challenges and opportunities that come with being an emancipated mixed multitude remain ours to address.

Ours is an age where the nature of Jewish identity and boundaries of communal definition are becoming more, not less, complicated. The numbers speak for themselves — some 70-plus percent of non-Orthodox marrying Jews being married to non-Jews. The age-old definition of defining Jewish identity by way of the mother was upended decades ago by the decision of the Reform movement to accept patrilineal descent. Whatever the conventions of Jewish definition may once have been, any study of Jewish demography makes clear that Jewish identity is shifting from an objective top-down religious or inherited definition to a subjective bottom-up matter of cultural, ethnic or other identification.

And in this new world of shifting terrain the one constant that remains is love. Love is a powerful thing, and time and again, young people find themselves, as the song from “Fiddler on the Roof” goes, wanting to build a home with a person not from the home they love. As a rabbi, this conversation is not a matter of theory, but of deep pastoral consequence. More than the statistics and sociology are the real-life stories that walk into my office all the time. What to do when a child of my congregation wants to marry a non-Jew or a patrilineal Jew? Am I to tell a woman descended from a former Soviet Union family that her Jewish journey is less authentic than another’s? When a child born to a non-Jewish mother seeks to enter my congregational school, wishing to celebrate her bat mitzvah, would I dare derail her emerging Jewish identity by suggesting that she isn’t really Jewish?

As a rabbi I have a commitment to uphold Jewish law and, as such, not officiate at interfaith weddings. As a rabbi, I also have an obligation to meet people where they are, and serve the Jewish future by helping build Jewish identity. So what exactly is a rabbi to do?

It is a question that I have been wrestling with for some years and that has becoming increasingly pressing in the Conservative movement and world Jewry as a whole. Given that not doing “anything” strikes me as lacking in a certain courage, I offer a proposal for consideration, for synagogue communities like my own, for the Conservative movement and perhaps other arms of Jewish life to consider.

By my read of the sources, from the Talmudic period onward, there is an established position permitting conversion to Judaism by way of mikveh immersion for a woman, and for a man, circumcision and immersion in a mikveh, coupled with a course of study.

Mikveh immersion is the Jewish act ritualizing a sacred transformation from one state of being to another. For the conversion of newborns or minors the course of study is waived, the act of being called up as a bar or bat mitzvah signaling a willed acceptance of an adolescent’s Jewish identity. The duration and content of the course of study is not specified in rabbinic sources, merely to teach the would-be Jew some of the strict and lenient commandments along with the obligations and misfortunes that can accompany being a Jew. Furthermore, on the question of the degree to which that would-be convert must be observant of the totality of Jewish law, there exist multiple opinions amongst respected authorities ranging from comprehensive observance to a sincere assent to the ideal of living an observant Jewish life.

It is because I am eyes wide open to the demography of American Jewry, it is because my read of the tradition is what it is and, most of all, because everything I do as a rabbi is done on behalf of the Jewish future, that I believe that the same body of Jewish law that mandates that I only officiate at weddings of one Jew to another may also be leveraged towards a maximally embracing approach as to who is or isn’t a Jew according to Jewish law.

The needs of the hour call on us to invoke the rabbinic principle of Kocha Deheteriah Adif — “The power of rendering a lenient ruling is preferable.” In our world where there are no guarantees regarding who our children will fall in love with, it is incumbent upon us to lower, not raise, the barriers to entry to being a Jew. If a non-Jew desires to build a Jewish home with a Jewish partner, a rabbi’s job is to nurture that desire, draw both partners close and make the onramp to Jewish life as inviting and doable as possible.

The length of the process should be up to the discretion of the sponsoring rabbi, not based on some magic number of classes.

As for the argument that only by being fully observant may one convert, we would do well to acknowledge that this is a self-validating criterion imposed by those who would limit the definition of what it means to be a Jew only to those who are fully observant — a definition that devalues the Jewish authenticity of the entire non-Orthodox world.

Jewish identity can be measured by observance, but it can also be measured by way of culture, ancestry, nationality, communal affiliation, philanthropy and otherwise. Like-minded communities must invest in outreach, education and programming towards creating as many pathways to Jewish life and living as possible, all with the aim to bring the maximum number of people into the definition of a Jew as defined by Jewish law. The Conservative movement should be the movement of conversion; that should be our mission. There is a need to be met and a market share to be had were we to have the courage and wherewithal to do so.

As to the question of the weddings of patrilineal Jews, Jews of uncertain descent and Jews of any other shades of Jewish identity, I would suggest the possibility that mikveh immersion become a requirement for rabbinic officiation. As it stands now, I require brides and grooms to get genetic testing, see a couples’ counselor and be a member or child of a member of my synagogue. Under this proposal, another requirement would be added: Regardless of whether one can trace their lineage back to Moses, every bride and groom immerses in the mikveh prior to the chuppah.

I did so before I got married. It was an incredibly transformative ritual that enabled me to reflect on my past and prepare for the exciting chapter to come. Such a requirement or stringency (which is really a leniency) would serve the purpose of leveling the playing field of Jewish identity — much in the same way, incidentally, that Israel should have done when hundreds of thousands of Jews of uncertain Jewish descent emigrated from the former Soviet Union. No vetting, no making someone feel “less than”— rather, the same rule applied to all. An affirmation to create a Jewish home and raise Jewish children, mikveh immersion — everyone equal in the eyes of Jewish law.

And so too, with our children. Due to the legal status of a minor in Jewish law, it is easier to address matters of Jewish identity prior to a child reaching maturity than after. What if we were to explore the possibility that every child who wants to celebrate their bar or bat mitzvah, matrilineal or patrilineal — my kid, or anyone else’s — takes a dip in the mikveh?

For those children whose identity is not in question — mikveh immersion will serve to announce that theirs is a Jewish identity derived not merely by way of an accident of birth, but as a willed choice to be a stakeholder in the Jewish destiny. For those whose Jewish past calls on them to affirm their commitment to the Jewish future — mikveh immersion further serves to dot the “I’s” and cross the “T’s” of their identity for the remainder of their lives.

It is a policy, which, if adopted by world Jewry would, over time, obviate the question of who is and who isn’t a Jew by the time these b’nai mitzvah kids are ready to get married.

There is much more to say, thousands of details to work out and more questions than answers, but we have to begin somewhere. In broad brushstrokes, what I am suggesting is: A conversion process whose length is left to the discretion of the sponsoring rabbi; mikveh immersion becoming part of the pre-wedding preparation for all couples; and mikveh immersion becoming part of the b’nai mitzvah process.

Such a policy would not meet the needs of every interfaith relationship. But it would indicate we are doing everything we can — in spirit and in deed — to meet people where they are while remaining within the bounds of Jewish law.

I believe that if a large enough swath of the Jewish world, in the diaspora and in Israel, embraced such an inclusive approach to Jewish identity, it may in the long term bear the potential to shift the politics on the age-old question of “Who is a Jew?” and redound to the benefit of the Jewish people as a whole.

At the seder table, we just declared, “All who are hungry come find a seat and be satisfied.” This year, let our focus turn to include those possessed with a spiritual hunger to sit at the table of our people. Passover reminds us that every child has a seat reserved for them. Let us fulfill our obligation to bring as many as we can into the narrative and covenant of our people, and in so doing serve the Jewish past by building a very bright and inclusive Jewish future.

Rabbi Elliot Cosgrove is senior rabbi of Park Avenue Synagogue in Manhattan.

Homosexuality

In Jewish thought, sexuality has both a positive and negative potential, depending on the context in which it is expressed. The commandment to procreate is the first mitzvah in the Torah. Yet aside from procreation, Judiasm recognizes that sexual need (Yitzra De’arayot) are essential.

 

Traditional understanding of the laws

Many religious believers (Jewish, Christian) are again homosexuality, because the Bible seems to explicitly prohibit homosexuality in the strongest terms. See Leviticus ch. 18, v. 22: Do not mishkevei ‘ishshah (“lie with a male as one lies with a woman”) it is an abomination.”

Understanding the verse in context

The JPS Torah Commentary – Leviticus. Commentary by Dr. Rabbi Baruch Levine.

Leviticus 18:22 – Do not lie with a male as one lies with a woman.

Hebrew mishkevei ‘ishshah means literally “after the manner of lying with a woman” by the introduction of the male member. Male homosexuality is associated with the ancient Canaanites, if we are to judge from biblical literature. Two biblical narratives highlight this theme, one about the men of Sodom in Genesis 19, and the other concerning the fate of the concubine at Gibeah in Judges 19. Although Gibeah was an Israelite town, the story clearly implies that Gibeah’s Israelite residents had descended to the abominable ways of the surrounding Canaanites.

Both of these accounts place the phenomenon of male homosexuality in a particular context: xenophobia. This extreme fear of strangers induces a community to attack visitors. In both of the stories cited here, the form of attack was homosexual assault. It is also thought that the pagan priests, called kedeshim, regularly engaged in homosexual acts (cf. Deut 23:18; I Kings 14:24; and Job 38:14). The term mehir kelev, “the pay of a dog,” mentioned in Deuteronomy 23:18-19, refers to the wages of a male prostitute, who usually serviced men, not women, in ancient societies.

Male homosexuality is called to’evah, “abhorrence, abomination,” a term that occurs frequently in the admonitions of Deuteromony. It occurs no fewer than four times in this concluding section of our chapter. In Genesis 46:34 and Exodus 8:22, it serves to characterize what Egyptians considered abhorrent, principally pastoral pursuits (This was suggested by W. F. Albright in From the Stone Age to Christianity, 423f).

There has been considerable speculation as to why lesbianism is not explicity forbidden in the Torah. In due course, rabbinic interpretation added this prohibition, as well (See The Code of Maimonides: The Book of Holiness (Book V), trans. L. I. Rabinowitz and P. Grossman, 135).

Non-halakhic bigotry towards homosexual women and men

(section to be written)

Nothing shows the hypocrisy and illiteracy shown by some religious believers towards homosexuality better than this photo.

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Conservative Jewish responses

Homosexuality, Human Dignity and halakhah: A Combined responsum for the Committee on Jewish Law and Standards. By Rabbis Elliot N. Dorff, Daniel S. Nevins and Avram I. Reisner

Homosexuality, Human dignity, and Halakhah

Homosexuality, Choice, and Jewish Law: If homosexuality is not chosen, then there is precedent in Jewish law for condoning it. By Rabbi Elliot Dorff, from Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, Jewish Publication Society

Homosexuality, Choice, and Jewish Law:

“Dear David – Homosexual Relationships: A Halakhic Investigation” by Rabbi Simchah Roth.  http://www.bmv.org.il/ab/dd.asp

Orthodox Jewish responses

I. Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

Recently a number of Orthodox rabbis and educators have been preparing a statement of principles on the place of our brothers and sisters in our community who have a homosexual orientation. The original draft was prepared by Rabbi Nathaniel Helfgot. It was then commented upon by and revised based on the input from dozens of talmidei chachamim, educators, communal rabbis, mental health professionals and a number of individuals in our community who are homosexual in orientation. Significant revisions were made based upon the input of Rabbi Aryeh Klapper and Rabbi Yitzchak Blau …

Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

We, the undersigned Orthodox rabbis, rashei yeshiva, ramim, Jewish educators and communal leaders affirm the following principles with regard to the place of Jews with a homosexual orientation in our community ….

Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

II. Hakirah, Metzitzah, and More.
By Marc B. Shapiro, Modern Orthodox rabbi and historian of Judaism

http://seforim.blogspot.com/2013/01/hakirah-metzitzah-and-more.html

Hakirah has performed a valuable service in dealing forthrightly with the matter of homosexuality. Issue no. 13 (2012) contains R. Chaim Rapoport’s “Judaism and Homosexuality: An Alternative Rabbinic View,” which I think is an outstanding presentation of the alternative to what has seemingly become the “official” haredi position in this matter. This “official” position is, in my opinion, so misguided that I would like to say a few words on the topic, since R. Rapoport did not go far enough in his criticism.

To remind readers, Hakirah no. 12 had a discussion on homosexuality with R. Shmuel Kamenetsky. This was followed by the publication of a document signed by many rabbis which follows R. Kamenetsky’s approach. It is available here. (The document is also signed by an assortment of mental health professionals,  rebbitzens and “community organizers”.)

There are so many problems with the approach found in this document (called a “Torah Declaration”), some already noted by R. Rapoport in his response to R. Kamenetsky, that it would take a lengthy piece to go through them all. Let me just call attention to a few points that I don’t think have been made yet. To begin with, while many rabbis have signed this document, including a number that I know personally, I have yet to speak to someone who actually believes what the document says, and this includes the people who have signed it!

Many will regard what I have just said as pretty shocking, in that I have declared that people who signed the document do not believe what it says. Yet I know this to be true, at least with regard to some of the signatories (those that I know personally), and I suspect that other than R. Kamenetsky, it might be that no one who signed the document really believes what it says (and it wouldn’t be the first time that people sign declarations that they really don’t believe in).

Let me explain what I mean. According to the document,

Same-Sex Attractions Can Be Modified And Healed. From a Torah perspective, the question whether homosexual inclinations and behaviors are changeable is extremely relevant. . . . We emphatically reject the notion that a homosexually inclined person cannot overcome his or her inclination and desire. . . . The only viable course of action that is consistent with the Torah is therapy and teshuvah. The therapy consists of reinforcing the natural gender-identity of the individual by helping him or her understand and repair the emotional wounds that led to its disorientation and weakening, thus enabling the resumption and completion of the individual’s emotional development.

The ideas just quoted are the very foundation of the Torah Declaration, and as we see in his Hakirah interview, R. Kamenetsky has been convinced by the dubious proposition that homosexuals can change their sexual orientation. He goes so far as to say that “no one is born gay with an inability to change” (p. 34 [emphasis added]. Not long after the appearance of the interview and the Torah Declaration, the man most prominently identified with the notion that gays can change publicly rejected his earlier viewpoint.)

Whether people can change their sexual orientation is a scientific or psychological issue, no more and no less. The first objectionable point of R. Kamenetsky’s approach is turning this into a matter of theology. Indeed, R. Kamenetsky has created a new dogma in Orthodoxy. According to him, believing that a homosexual can change his orientation is a basic Torah value. The reason for this is stated in the document: “The Torah does not forbid something which is impossible to avoid. Abandoning people to lifelong loneliness and despair by denying all hope of overcoming and healing their same-sex attraction is heartlessly cruel. Such an attitude also violates the biblical prohibition in Vayikra (Leviticus) 19:14 “and you shall not place a stumbling block before the blind.”[1]

There you have it. Human beings are deciding what God can and cannot do and declaring that it is impossible for someone to be created with an inalterable homosexual nature. That this is completely incorrect is acknowledged by none other than the most extreme advocates of reparative therapy. They themselves acknowledge that there is a significant percentage of people who cannot change their orientation. They have never claimed that everyone can change. What the document gives us, therefore, is a theological statement that is rejected by all scientists and psychologists, including the ones who provide the very basis for reparative therapy. That itself should be reason enough to reject it. (On Nov. 29, 2012 the RCA acknowledged “the lack of scientifically rigorous studies that support the effectiveness of therapies to change sexual orientation.” See here.)

 

III. Homosexuality: Another Orthodox Perspective

Rabbi Gil Student, Centrist Orthodox

A modern scientific approach to homosexuality maintains that for most (if not all) homosexuals, change therapy is at best useless and can be harmful. In addition, there is a strong biological and genetic component to the same sex attraction. Psychoanalytical theories of homosexual tendencies due to family conflicts or arrested development have not held up to scientific scrutiny. If this is the case, can halakhah then relate to the homosexual in a different way? Clearly, Rabbi Feinstein’s approach of homosexuality as a willful rebellion against God does not ring true to modern sentiments and while Rabbi Lamm’s view of acting under duress eliminates the punitive aspect, it still maintains that homosexuality is at best a mental illness.

The Noda Bi-Yehudah has suggested that there is a halakhic category called “Shoteh Li-Dvar Echad,” someone mentally incompetent on a single issue. He writes in the context of a responsum on the famous Get of Kleiv case:

A Shoteh Li-Dvar Echad, even if it is not one of the things mentioned in Chagigah, and is not considered a shoteh because he has no signs of those things [mentioned in Chagigah], is not considered a shoteh in general. However, for that thing that disturbs his mind and with which he is obsessed, it is clear that for everything related to that thing he is considered a shoteh. Therefore, mitzvoth related to that thing are not relevant to him, even though for all other mitzvoth he is considered a wise man [and obligated in them] [6]

Rabbi Moshe Farbenstein explains, “the Noda Bi-Yehudah has originated a new idea, and writes that a Shoteh Li-Dvar Echad is exempt from individual mitzvoth that relate to his specific condition and is obligated in all other mitzvoth.” [7]

Can one extend this idea of the Noda Bi-Yehudah to other areas which are biologically driven but not necessarily considered mental illness (and just to be absolutely clear I am in no way suggesting that homosexuality is a mental illness)?

If the basis of the Noda Bi-Yehudah is that someone who cannot prevent his behavior in a specific area is not obligated in mitzvoth related to that area, can one then apply that principle to biologically driven homosexuality? I am aware that this is an enormous intellectual leap but it might play a role in relating halakhically to any rabbinically prohibited acts that might occur in private between homosexuals.
Can one perhaps use this approach (or others along these lines) in adapting an inclusivist Orthodox approach towards homosexuality?

http://www.torahmusings.com/2013/05/homosexuality-another-orthodox-perspective/

Mamzer

A mamzer (ממזר‎‎) is a person born from certain relationships forbidden by Jewish law. The common English translation is “bastard”, which has some similarities to a mamzer, but it is not the same as “illegitimacy.” Jewish law does not consider a child illegitimate if the mother happens to have been unmarried. As such, to avoid confusion we do not use “bastard” as a translation. We simply use the Hebrew word.

A mamzer is a person born out of adultery by a married Jewish woman and a Jewish man who is not her husband, or a person born out of incest.

Mamzer status is not synonymous with illegitimacy, since it does not include children whose mothers were unmarried.

Biblical origin

A mamzer (ממזר‎‎) shall not enter into the congregation of the LORD; even to his tenth generation shall he not enter into the congregation of the LORD.
— Deuteronomy 23:2

Understanding of this term in rabbinical Judaism

A mamzer is the offspring of a biblically forbidden union (Yevamot 4, Mishnah 13: “כל שחיבין עליו כרת בידי שמים”. – Circa 200 CE

According to the Shulchan Aruch, a mamzer can only be produced by two Jews (Shulchan Aruch, “Even haEzer” 4:19). Circa 1560’s CE

A child born of a married woman’s adultery is a mamzer. The child of a single woman and a man she could lawfully have married is not a mamzer (Shulchan Aruch E. H. 4.) It is irrelevant if the man is married or not.

If one of the parents is not Jewish then the child can’t be a mamzer.

In order to make certain that almost no child would have the status of mamzer, the rabbis canonized legal fictions that prevented the term from being used in many cases, for instance:

A child born within 12 months of a woman’s most recent meeting with her husband is presumed to be legitimate (Shulkhan Arukh 4:14)

Any child born to a married woman, even if she is known to have been unfaithful, is nonetheless halakhically presumed to be her husband’s (Shulchan Aruch, “Even haEzer” 4:15)

In the last century, much of the Orthodox Jewish community has made significant, and some would say harmful, changes to Jewish law on this issue. People being educated in Orthodox yeshivas are no longer even taught the wide array of traditional views on the subject, and students graduating even as rabbis are unaware that halakha has a “Don’t ask, Don’t tell” policy on this subject: It is literally forbidden to ask if someone is a mamzer.

The concept of mamzerim was discussed in the Rabin Mishna Study Group: Daily Mishnah Study in the climate of Masorti (Conservative) Judaism. Rabin Mishnah Study Group, by Rabbi Simchah Roth.

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Mamzer: A person who was born of parents who were prohibited from marrying each other by Torah law. For this reason translations such as “bastard” and “illegitimate” are misleading. In western law a bastard is a person whose parents did not happen to be married at the time of his birth. A Mamzer [or Mamzeret] is a person whose parents were prohibited by Torah law from marrying at the time of her conception; the parents could not have married even if they had wanted to. The main cause of mamzerut is adultery by the woman.

The non-adulterous union of a Kohen with a woman otherwise prohibited to him, does not cause mamzerut. (Many Conservative rabbis today consider the restrictions on the marriageability of a Kohen to be obsolete, and they have substantial halakhic reasons to support their opinion. In any case, this has nothing to do with mamzerut.)

Halakhically speaking, the ‘mamzer’ suffers no disabilities except one: a ‘mamzer’ can only marry a ‘mamzeret’ (and vice-versa) and their descendents will be ‘mamzerim’ in perpetuum! This is such a terrible situation for a human being to find himself in that not only Conservative rabbis, but all decent-minded rabbis, make every effort to obviate the situation. This cannot be done, halakhically, by erasing the status as if it did not exist; the best approach has always been to find some valid reason why the person is not, in fact, a ‘mamzer’ as at first thought.

Halakhic solutions which get rid of the problem:

Solution #1

Rabbi Tarfon says that Mamzerim can become rehabilitated. How? If a Mamzer marries a Canaanite servant-woman [shifchah kena’anit] the offspring will be a Canaanite servant [Eved kena’ani]. If he grants the servant manumission his son has become a free man. Rabbi Eliezer says that he is but a Canaanite servant who is also a mamzer! (His suggestion was feasible only in his time.
Rabbi Tarfon says that a mamzer can become rehabilitated. The Hebrew word that I have translated thus is “litaher”, which really means “can become purified” or “purged” – of
the taint of mamzerut. We learned at the end of the previous mishnah that the offspring of both the Canaanite servant and the mamzer take their status from the mother.
[Unlike Jewish servants, under Torah law non-Jews held in service to Jews are partially “Jewish” and can regain their freedom only by manumission. The status of the Eved Kena’ani and the Shifchah Kena’anit was amply discussed on RMSG between 16th November and 5th December.]

Rabbi Tarfon’s idea is that if a free Jewish man who is also a mamzer takes a gentile woman as his Canaanite servant and has a child by her, the child is automatically also a Canaanite servant. The father, who is also the master, has the right to grant his slave-son his freedom at any time. The son, upon being manumitted, becomes a fully-fledged Jew and can marry any Jewish woman he chooses! I suppose that in Rabbi Tarfon’s time this was ‘neat’. I wonder whether anyone noticed that it only solved half the problem: a mamzeret could not ‘pull the same stunt’ by marrying an Eved Kena’ani, since her offspring would take her status. Rabbi Tarfon’s elder contemporary, Rabbi Eliezer, denies the feasibility of the halakhic ‘trick’.

The Gemara [Kiddushin 69a] discusses whether Rabbi Tarfon’s proposal is acceptable ‘a priori’ – as a valid halakhic procedure in all cases. The final conclusion is that this is the case and that the halakhah is according to Rabbi Tarfon (and not according to Rabbi Eliezer).

Something to think about: All lines of descent from antiquity are suspect…Given the long tumultuous history of the Jews, there were many periods when records of personal status were not kept accurately, and certainly not universally from community to community. People of mamzer ancestry definitely married within the general Jewish community without the community realizing it.

In fact, in Temple times no Kohen was permitted to officiate in the Bet Mikdash unless he had a certified pedigree lodged in the Temple secretariat. All others who claimed to be kohanim (let’s say because their father told them so) but could not bring authorized proof of their status, were still considered to be priests, but could not officiate as such. This is the status of ALL kohanim today.

Question: Hmm, might this not this mean that we are all mamzerim?

No! In Western jurisprudence there is a basic ‘presumption’ – that all people are innocent of wrongdoing, and even those accused of a crime benefit from this presumption until it has been conclusively proven to be untenable in a duly constituted court of law. This is what we call the ‘presumption of innocence’.

In halakhah there is a similar presumption as regards personal status: “kol Yehudi be-chezkat kasher” – every Jew is presumed to be of unblemished pedigree unless there are solid and factual reasons for denying him or her the benefit of that presumption.

Cf. Rambam Issurei Biah 19:17; Tur Even ha-Ezer 2, Bet Yossef Even ha-Eezer 2:2:a, Shulchan Aruk ibid.

Solution #2

Another “cure” for mamzerut is “assimilation” – and it is the obvious solution for our own times. This matter is deliberated in the Gemara, Talmud Bavli, Kiddushin 71a, as part of the discussion on the first mishnah of Chapter Four. The Jews of Babylon were of the opinion that the Jews in Eretz-Israel were not as meticulous as they should have been concerning the ‘kashrut’ of families suspected of not having a pure Jewish pedigree. Rabbi Yochanan, probably the most influential and most prestigious of the Amoraim of Eretz-Israel (he died around the end of the third century C.E.) virtually admits the accusation … “but what can I do about such a family, seeing that some of the most illustrious people of our age have assimilated into it?” The Gemara explains that Rabbi Yochanan is of the opinion that “once a family [of impure pedigree] has become assimilated [into the fabric of Jewish society] – it is assimilated [and accepted]”.

This opinion became accepted halakhah! Rambam [Maimonides] codifies as follows:

“If an impure element mixes in the pedigree of a family, and this fact is not generally known, ‘once it has assimilated, it has assimilated. Anyone who knows of this is *forbidden* to publish the information, but must let the family continue in its presumption of unblemished pedigree.”

Solution #3

We must also recall the famous dictum of Rabbi Yehoshu’a ben Levi [Kiddushin 71a, top] that “money purifies mamzerim” [“kessef metaher mamzerim”].

Rashi interprets this extraordinary statement as follows: when mamzerim become affluent, other people cease to be concerned with the blemish on their pedigree! Another interpretation from the Middle Ages links the Hebrew word “kessef” with the same root in Aramaic which also means “to blanch with shame”: if mamzerim are ashamed of their status and ‘keep it quiet’ they will soon assimilate and the status will disappear.

Solution #4

Most rabbis would keep no records of presumed mamzerut, would do their best to prove that the person was not a mamzer (as did Goren), and the mamzer would do well to move to an area where he/she was not known, so that they could eventually assimilate into the general community, as we have previously discussed. If the matter is not known it will not be a problem.

The possibilities that exist for modern mamzerim who are _aware_ of their halakhic status are:

(1) to refrain from procreation altogether so as to prevent this “curse” falling upon a new generation;

(2) to brazenly ignore the halakhah altogether;

(3) to procreate with a life-partner “without benefit of clergy” (i.e. without Chuppah and Kiddushin);

(4) to reside in an area where their relative anonymity can be maintained and their halakhic status is unknown, to choose a life-partner and to procreate with that life-partner after Chuppah and Kiddushin have been performed.

I do not believe that as Conservative rabbis we have the power to demand option #(1), so I do not see the point in discussing its ethical aspects. We cannot condone option #(2). So we have to choose between options (3) and (4). I know which option I would prefer. [ #4 ]

Related articles

Morality, Halakha and the Jewish Tradition

Mechitza

A mechitzah (מחיצה‎, partition, pl.: מחיצות‎, mechitzot) is a partition used in Orthodox synagogues to separate men and women during formal prayer services.

For the last 2 centuries it has been erroneously taught that a mandatory mechitzah is an ancient law, followed since the time of the Temple in Jerusalem, 2,000 years ago, and enshrined in the Talmud itself,

Here is an unfortunate example of such a belief, popular among the ultra-Orthodox:

“It is my job as a Rabbi to teach and educate people. In the times of the second Temple (Beis HaMikdash) in Tractate Sukkos it was written that a special platform was made for the women so that they could view the men dancing and the Lulav and Esrog ceremony. WOMEN AND MEN HAVE ALWAYS BEEN SEPARATED from the time of Avraham until about 1800 in Germany. After the Sabbatai Ẓevi and Jacob Frank  false moshiachs [messiahs], the Reform Movement started.”

No historians would agree with this. The entire paragraph is an urban myth. There is no relationship between Zevi & Frank, and classical German Reform Judaism. Sabbatai Zevi was a kabbalist, and historians say that some of teachings actually influenced Orthodox Hasidic Judaism; in contrast classical German Reform was rationalist and rejected all kabbalah, both Zevi’s and Hasidic.

It is true that over the centuries, women and men didn’t sit together in modern-day style. Few historical sources exist, but those that do imply that perhaps men prayed more often in synagogue, and women less often. There were local customs for women and men to sit separately, but there is no evidence that this was ever a widespread law, indeed, perhaps no evidence that it was even considered a local law.

The idea that a mechitzah is mandatory didn’t develop until after the Enlightenment, and the emergence of classical Reform Judaism. In response to these changes, the Orthodox community created new rules on tefila (prayer) and gender.

Two rationales were developed by the Orthodox, in an effort to claim that this rule had always existed.

I. The Babylonian Talmud (Sukkah 51b, 52a) describes a divider in the form of a balcony, in the Temple in Jerusalem. However, it was only set up only during the festive, raucous, Simchat Beit Hasho’evah (Water Drawing Ceremony) on Sukkot. Otherwise it was not used.

II. The Talmud cites a teaching that we may not daven in the presence of an ‘erva, an immodestly dressed woman. Berachot 24a states “tefach b’isha erva”, “an area of uncovered skin of a woman is ‘erva.” What an area (tefach) actually is, is not defined. Thus one may not daven in the presence of women where this much skin is exposed.

Noah Gradofsky writes:

In absence of evidence the claim that mechitzah started in an effort to avoid davening in the presence of ervah is conjecture. Somewhat reasonable, but you would have to argue that women going in to shul with ervah uncovered was commonplace enough to necessitate this enactment. This strikes me as unlikely, since if women were commonly enough going into synagogues with certain body parts uncovered, those body parts would be, by definition, not ervah. perhaps the conservative mores of a synagogue led people to label what offended them as ervah even though the cultural reality around them was different. One of the interesting points of the phrase במקום שדרקן לכסות – “where they normally cover” is whether the word מקום (place) refers to a geographic location, an anatomical location, or both.

During the same time period, Ashkenazi Orthodox Jews developed prohibitions on women from singing with men, the prohibition against Kol Isha. The result of this gender segregation (mechitzahs and Kol Isha) was to effectively render women not part of the Jewish congregation: Many Orthodox siddurim have a prayer asking God to “bless the congregation – and their wives”, clearly implying that women are full members.

The upshot: There is no mention of any mechitzah in the Temple in Jerusalem, not during the First or Second Temple, nor are there are mentions of it in the Talmud. Rabbi David Golinkin writes:

Towards the end of the Second Temple period the Sages directed that a women’s gallery be constructed in the Women’s Court to keep the sexes separated ONLY during the somewhat light-headed celebration of the water festival during Succot.

During the balance of the year men and women mingled freely in the Women’s Court. (It appears that this was so named because it marked the limit of approach by women who were not bringing sacrifices, to the inner courts of the Temple). There is no literary or archaeological basis for assuming the existence of a synagogue separation during the period of the Mishnah and the Talmud.

The first mention is towards the end of the period of the Geonim (around the eleventh century). From then on, such separation is occasionally mentioned in passing. Not until the end of the nineteenth century do we have a halakhic source *requiring* separation in the synagogue.

At this point one is reminded of the classic joke retold by the ThinkJudaism blog:

Conservative Jew: Why doesn’t Rav Yosef Karo’s law book, the Shulḥan Aruch, have a section for the laws of meḥitza?
Orthodox Jew: Why?
Conservative Jew: We learn from this that a synagogue really doesn’t need a meḥitza.
Orthodox Jew: No, we learn from this that a synagogue really doesn’t need women.

Jews in front of Western Wall Kotel

Image: Jews in front of Western Wall, Jerusalem, from a negative taken approximately 1900 to 1920. Library of Congress LC-DIG-matpc-12192

Laws about mechitzahs were never said to be a part of halakhah until the 1800’s.  Examples include

Chatam Sofer, Orech Chaim 5:190
Moses Schreiber (1762–1839), Germany

It is right according to our Torah law to listen to the voice of a woman in shul, in a place that men congregate, and the women’s voice goes from the women’s section to the men’s section?  The reason for this, is that we believe that all prayer and praise and thanksgiving should not be mixed with improper thoughts. And because of this we separate the women from the men in shul, to make sure they do not come to think improper thoughts during the time of prayer. And we learn this from the water libation ceremony that is spoken about in Tractate Sukka where they made sure the women were above and the men below so they would not come to kalut rosh. . And it is said there on 52a, as it says: “And the land shall mourn, every family apart: The family of the house of David apart, and their wives apart; the family of the house of Nathan apart, and their wives apart.” (Zecharia 12:12). And it is a kal v’chomer- here where they are talking about a eulogy where there is no evil inclination the Torah tells us that the men were separate, and here that we are talking about happiness, where there is an evil inclination, all the more so there should be a separation.
– Translation from Sefaria.Org

Maharam Shik מהר”ם שיק, Orech Chaim 77
Rabbi Moshe Schick משה שיק‎‎, (1807 – 1879), Hungary

Igrat Moshe, Orach Chaim 1:39
Rav Moses Feinstein משה פיינשטײַן‎‎  (1895–1986), New York

Shu”t Tzitz Eliezer 7:8
Eliezer Yehuda Waldenberg (1915–2006), Jerusalem

Joseph B. Soloveitchik יוסף דב הלוי סולובייצ׳יק  (1903-1993) Community, Covenant and Commitment: Selected Letters and Communications. Ktav Publishing House, 2005. p. 129-130. During the 1950’s, Soloveitchik ruled that it was forbidden to pray in a synagogue without a separation between the sexes, and that this law was actually mi-d’orayta, an actual law in the Torah. At the time, during the political-social fighting between Orthodox and non-Orthodox, many Orthodox Jews accepted this claim as correct. Today however no person takes this claim seriously; there is not mitzvah in the Torah on this subject. He further stated that the use of a mechitza as we know it today was mi-derabbenan, a rabbinical prohibition from the Talmud (discussed above, which we now know is mistaken. He misread the Talmudic text about the temporary partition erected during raucously celebrated Simchat Beit Hasho’evah (Water Drawing Ceremony) on Sukkot.

Further reading

Is the Entire Kotel Plaza Really a Synagogue? Rabbi David Golinkin, Schechter Institute of Jewish Studies

The Mehitzah in the Synagogue, Rabbi David Golinkin

Meḥitza: Do Orthodox prayers count in a Conservative Synagogue? from ThinkJudaism

The Mehitzah in the synagogue, by Rabbi Monique Susskind Goldberg (PDF file)

The Trichitza Phenomenon, by Jordan Namerow

Trichitza. A strange word, no? Until I was in Israel two weeks ago and prayed in a trichitza setting for the first time, I’d never heard the word before. Shortly thereafter, I came across a trichitza-related article in the November/December 2006 edition of New Voices. I’ve since learned that over the past few years, a growing number of communities have experimented with a trichitza, defining religious space in new, pluralizing ways. Adapted from the word mechitza (which literally means “separation” and refers to the physical divider traditionally used to separate men and women during prayer services), a trichitza divides the prayer space into three sections: one exclusively for women, one exclusively for men, and one not classified by gender. This provides options for nearly everyone: those whose Jewish practice is built upon gender-egalitarianism, those who wish to pray in a gender-specific space… , and those whose own gender-identity lies outside of the male/female binary. The author of Mah Rabu, a blog about Jewish politics, culture, and religious issues writes of the trichitza: “It’s an elegant idea that didn’t exist and then someone came up with it, and everyone said: ‘why didn’t I think of that before?’”

Hilchot Pluralism, Part III: Macroscopic prayer issues – Includes a discussion about trichitzahs

Levels of Jewish law

There are several levels of law in halakha.

A1. The מצוות דאורייתא, mitzvot d’oraita, 613 Mitzvot (commandments) – These are all found directly in the Torah.

A2. Laws given to Moses at Sinai, Halakhah le-Moshe mi-Sinai, הלכה למשה מסיני.

These are laws not stated in the Torah, nor derived from it by logical principles (hermeneutics.)

These laws have been known to us from antiquity: they were accepted by the sages of the Mishnah as being as ancient and authoritative as the laws in the written Torah. They were transmitted, some perhaps from the time of Moses, through Judaism’s oral tradition, until written down in the Mishnah. In a way, they constitute additional mitzvot, which one can add to the 613.  But not because we are changing the Torah or adding to it. Rather, according to our history, these rules were always part and parcel of Torah, even if they were not written within the admittedly small text of the Torah.

As in all cultures, not all beliefs and practices are written down at once. Maimonides lists 31 of these mitzvot in his Mishnah commentary introduction:  31 Halachos L’Moshe MiSinai according to the Rambam

Usuallt, extensions of Torah laws are not Halakhah le-Moshe mi-Sinai. If a primary rule is given in the Torah (abstain from labor on Shabbat) the elaboration doesn’t count as a Halakhah le-Moshe mi-Sinai. In the Mishnah and Talmud, the rabbis elaborate 39 categories of labors prohibited on Shabbat; these are merely elaborations of the Torah mitzvah and not additional mitzvot.  See the piece by Rabbi Jack Abramowitz, 31 Halachos L’Moshe MiSinai according to the Rambam.

However, in some cases, details for how to observe a mitzvah are included in this category.  There seems to be no firm rule for which statements count in this category, but over time the list made by Maimonides has been seen as authoritative. Some examples are

1. That the loaves of a thanksgiving offering need a half-log of oil;
2. That the offering upon completion of a nazir period requires a quarter-log of oil;
7. Minimum sizes, such as of food for blessings;
10. The parchment to be used for tefillin;
11. The parchment to be used for mezuzos;
20. The ink to use for writing a sefer Torah;
25. That a field with ten or more saplings may be plowed right up until Shemittah;

It is often taught that we must believe that the Halakhah le-Moshe mi-Sinai literally came from Moses. But even a cursory reading of the Talmud and Midrash show that the rabbis didn’t believe this. Jewish tradition actually teaches that the term means a rule accepted as if it was given to Moses. Rabbi Shalom Berger (Orthodox) writes

“In the brief chapter on “Halacha L’Moshe MiSinai” in Menachem Elon’s HaMishpat HaIvri, Elon points to the well-known Midrash (TB Menahot 29b) – that describes Moshe Rebbenu sitting in Rabbi Akiva’s Talmud class and not understanding the discussion – and ends with Rabbi Akiva quoting the source for his teaching as “Halacha L’Moshe MiSinai” – as a proof that the term can be used to mean that a given teaching is known and accepted *as if* it had been given to Moshe on Mount Sinai.”

B. The seven rabbinic mitzvot – שבע מצוות דרבנן, Mitzvot d’rabanan.  The Talmud notes occasions when rabbis of the Mishnah and Talmud actually created new mitzvot (commandments.)  They are:

1. Saying blessings over pleasurable things (מצוות הנאה, e.g. fruits), over the fulfillment of a mitzvah (e.g. brit milah), and over various natural phenomenon (e.g. seeing the Great Ocean, i.e. Mediterranean Sea, or lightning) or significant (e.g. meeting a king) events. These additional brachot are together counted as one, for the purposes of the mitzvot d’rabanan.

2. Washing one’s hands before eating bread.

3. Eruvim: 3 kinds of “mixings” to allow: (a) carrying on Shabbat in a courtyard, which can be extended (eruv xatzeirot, the usual referent of ‘eruv’), (b) walking more than a mile on Shabbat outside a city (eruv t’xumim), (c) preparation of food on a Yom Tov (holiday) for consumption on the Shabbat that immediately follows it (eruv tavshilim)

4. Recitation of Hallel (Psalms 114-118) on most holidays and on Rosh Chodesh

5. Lighting of Shabbat candles

6. Public reading Megillat Esther on Purim, both evening and day.

7. Lighting candles on the 8 nights of Chanukah.

The 7 are not grouped as such in the Talmud: the list is first compiled by R. David Vital in his book כתר תורה ((1536, listing the mitzvoth, according to the choices of the Rambam. The numeric equivalent of the Hebrew title, ‘Keter’ adds up to 620 [613 + 7] in gematria (numerical mysticism.)

C1. Gezeira d’rabanan. A rabbinic fence law, aimed at deterring one from doing something that is prohibited.

For example, one may not place food directly on a fire before Shabbat in order to keep it heated during Shabbat. This is a fence around the law against cooking on Shabbat. To prevent the gezeira from being violated, a metal cover, called a blech in Yiddish, is placed on the stove top before Shabbat with the flame (turned to a low setting) under one section and the pot with food placed on the blech. This blech serves as a fence, allowing heating of the food without any danger of violating the law. Note that a “gezeira dirabanan” becomes binding only if it is accepted by the community. From the Soc.Culture.Jewish.Faq

C2. A Takanah is rabbinic legislation. The term often refers to directives aimed at imposing a duty to perform a particular, act. Some are rulings not to engage in particular acts e.g. the 2 famous takkanot of Rabbeinu Gershom (c. 1000 CE – not marrying more than one woman, not opening another’s mail).

D. Minhag, Custom.

Minhag is any act that the masses, on their own, accept. A minhag against actual halachah is called a minhag ta’ut (mistaken minhag.) Any based on a misunderstanding is a minhag shtut, a foolish custom. These two should not be followed. Any nearly universal minhag is called a Minhag Yisroel, and has most of the stringencies of law. (Yarmulka, and Ma’ariv services are two examples of a Minhag Yisroel.)
– SCJ FAQ

E. P’sak. A rabbinic ruling. Any individua can ask their rabbi a question, and since a rabbi is trained in Jewish law, the rabbi’s answer is generally considered authoritative. This does bring up the question of “who is a rabbi”, because the rabbinical semichah (ordination) that Jews have today is not the classical semichah that existed in the Mishnaic and Talmudic era. Rather today’s rabbinic ordination is היתר הוראה – a permission to pasken (decide halachic questions).

Not every question asked to a rabbi results in a p’sak halakhah: The rabbi’s answer is sometimes only considered a p’sak when it involved an original analysis.  If the rabbi finds it sufficient to reply by citing already existing laws and customs, then the response is just a regular answer. (e.g. “May we count seven men as a minyan? ” “No, it needs to be 10 men”.)

Constraints:

A rabbi traditionally may not offer a p’sak when within the presence of his/her own teacher! The exception is that one may override one’s own teacher, if one becomes recognized as a Posek (expert in a particular area of Jewish law.) What is a posek? Posek (article on Wikipedia)

http://judaism.stackexchange.com/questions/10238/am-i-allowed-to-answer-my-friends-halacha-question

Rabbi Yitzchok A. Breitowitz adds an important constraint in making a p’sak.

“Halachic decision-making is not a matter of a Rabbi secluding himself in a room and getting a direct answer from G-d which he then communicates with ex cathedra authority. Indeed, based on the verse, “It [the Torah] is not in Heaven”, the Talmud declares that prophecy and Divine inspiration cannot be taken into account in the resolution of halachic questions. All halachic resolution depends on a solid empirical grounding in the facts coupled with a reasoned application from the primary texts that Jewish law considers to be definitive, e.g. Talmud, Codes. Ad hoc decision-making that is not rooted in these texts is generally illegitimate.”

http://www.jlaw.com/Articles/decide.html

Is Posek shopping permissible? (Asking multiple rabbis the same question, in order to get the answer that you want.) Here is a response from the website of the Union of Orthodox Congregations (Modern Orthodox, USA)

https://www.ou.org/torah/halacha/halacha-lmaaseh/halachic-decisions-psak/