Shoftim, Devarim 19:15. Testimony that Requires Two Witnesses. עַל פִּי שְׁנֵי עֵדִים אוֹ עַל פִּי שְׁלֹשָׁה עֵדִים יָקוּם דָּבָר and an Unwelcome Surprise.

The day before the wedding, the Chassan entrusts the ring to his sister.  The wedding begins, the family gathers to begin the procession, the sister gives the ring to her dear brother, and all is well.

A few days later, at the Sheva Brachos on Shabbos, the Chassan's sister, bored by the speeches, is idly playing with her wedding ring.  As she distractedly glances at it, something strikes her as different, something is not right.  The unwelcome but inexorable realization comes upon her that the shiny new ring she is wearing is not hers.  She asks to see the Kallah's ring, and her stomach turns over- the Kallah is wearing her ring, and she is wearing the ring her brother gave her to watch.  Evidently, she had taken off her ring for some reason, and mistakenly put her brother's ring on and gave her own ring to her brother.  The ring that the Chassan used to effectuate Kiddushin did not belong to him.

I did not make this up.  This happened a few weeks ago.  This is not the kind of shailah where the Rov can say "I need to think about this, I'll call you tomorrow" and run home and call his own posek.  This is a question that needs an answer right now.  If the shaila came to you, what would you say?

The local posek resolved the issue by saying that in Arayos and family law, legal proof can arise from only two things: Evidence or testimony.

The evidence that the ring did belong to the Chassan is the fact that he was holding it at the chuppah, and nobody protested that it was not his.  Now, the Kallah has the ring, and it is presumptively hers.  This Chazaka is sufficient evidence of ownership.

Now, the sister challenges the Chazaka and the Muchzak and says that the ring is hers.  If the sister could specify some unusual quality in the ring the kallah was wearing that would be known only to her, that would be sufficient evidence- a Siman.  There was no such siman given here, it was just the sister's certainty based on unspecified visual or tactile cues, Tvias Ayin.  As for testimony, our passuk teaches that such cases require two male witnesses that are not related to the parties. עַל פִּי שְׁנֵי עֵדִים .... יָקוּם דָּבָר  Here, the testimony is that of one individual who is an immediate relative (rishon/rishon) and not a male.   This testimony is considered legally insufficient and does not overturn the status quo of a presumptively valid marriage.

This psak may be sound (debatable: because it assumes that Chezkas Nesu'ah prevents you from a pure dinei mamonos analysis, where you would have to deal with the ne'emanus of a shalish, and either hoda'as ba'al din or bari v'shema) but it is very unsatisfying.  All the parties involved know that the sister is 100% right, and the kiddushin was 100% invalid.  Legally defensible is not the same as actually married.  Of course, the Chassan can get a few friends together and do it over without brachos, but realizing that they had not really been married for the past few days must have been terrible........if not for the psak halacha that the Hagahos Mordechai's brings from Rashi.

This is not the first time in history such a thing happened; more likely that it has happened tens of  thousands of times, and not just because of incompetent Mesadrei Kiddushin.  I've seen similar things even with experienced rabbanim.   So:  The Chassan certainly has to redo the Kiddushin.  But what about the Chuppah, and what about the Sheva Brachos?   Do you have to do the Chuppa over?  In this case, since it happened on Shabbos, there's an additional problem- it is assur to do kiddushin on Shabbos.  So whatever you do will have to wait until Motzei Shabbos.  Can you finish the Sheva Brachos you are in middle of?  Do you start the whole week of Sheva Brachos over? 

The Hagahos Mordechai in the end of Kiddushin, says that just such a Shailah was brought to Rashi, and Rashi paskened that the Chassan must do the Kiddushin, but there is no need to repeat either the Birkos Eirusin or the Birkos Ni'suin.  The Rama (EH 61) quotes this, but only mentions that Birkos Nisuin don't have to be repeated.  But a Teshuva in the Binyan Tzion says that despite the Rama's implicit disagreement with the Hagahos Mordechai regarding Birkos Eirusin, he holds lehalacha that when the Chassan does the Kiddushin, no brachos should be made: No need for a minyan, no need for Birkos Eirusin, no Birkos Nisuin, and no Sheva Brachos.

This requires some thought.  Why shouldn't he have to do the brachos now?  If the Kiddushin was invalid, then the Bracha they made at that time was a Bracha Le'vatala, and they are just getting married now, and their Kiddushin should require all the Brachos!

Synopsis of answers:
1. When you do Chuppah and then Kiddushin, the Chuppah is koneh kinyan gamur lemafrei'a.
2. Chuppah is a kinyan nimsheches, it's not  כלתה קנינו, it creates a state that stands forever, and so when you do kiddushin later, it is like doing kiddushin at the time of the chuppah, and while it's not lemafrei'a, the eventual kiddushin does begin at that time, so it justifies the Birkos Eirusin you made when you did the erroneous Kiddushin.
3. Yes, the Kiddushin was in error, but the Birkos Eirusin were kosher anyway, because they were made during an public celebration of a wedding, even though the actual wedding took place a week later.

1.  I would say that if you hold that Chuppah can be before Kiddushin, then when you do the kiddushin, the chuppah makes nisuin retroactively.  In other words, Chuppa makes nisu'in, but only when there is a kiddushin.  Instead of thinking of the two as incremental, one might say that kiddushin is a tnai in chuppah.  So it doesn't matter if the kiyum hatnai is before or after the chuppah; if you make a chuppah and later the kiddushin, the chalos nisuin is at the time of the chuppah.  If you never make the kiddushin, the chuppah does nothing at all.  So although here he couldn't do the Kiddushin on Shabbos, because it's assur to make kiddushin on Shabbos, he could continue with the Sheva Brachos on the smach that he's going to be mekadeish her after Shabbos.  In a case where the Chuppa precedes the Kiddushin, and the Chuppa is le'mafrei'ah, one does not make Birkas Eirusin when he does the Kiddushin because the Kiddushin does not begin the relationship  Birkos Eirusin were instituted only when they begin the marriage, not when they are done to satisfy a tnai in the Chuppah, because then you are not making a kinyan that's chal now, you are ensuring that the kinyan that was done a while ago was chal. 

I admit that my pshat sounds like it's off the tracks, or, as we say in Yeshivish, שלא בדרא דאונא.   For one thing, it's inconsistent with the Ramban brought by the Mishna Le'melech in 10 Ishus 2, which is the source for saying that Chuppah can be before Kiddushin. (Ramban: the Gemara proves that Techilas Biyah is koneh from the fact that a Kohen Gadol can be mekadesh with Biyah.  The Ramban asks, but she still needs to be a besula when the nisuin is chall, so what good is it that she was a besula at the chalos kiddushin?  He answers that it's in a case where the Chuppa was before, so the two are simultaneous.  According to me, even if sof biyah was koneh there wouldn't be a problem because it's lemafrei'a.)

But הסכת ושמע, listen to the words of the Chelkas Mechokek in EH 55:9.

נראה פשוט כל זמן שלא נתקדשה אין חופה קונה קודם הקידושין
 רק כשנתקדשה
 נקראת למפרע 
נשואה

I know that most of you won't be mekabel this pshat in the Hagahos Mordechai, even with the support of the Chelkas Mechokeik, so here are some alternatives. 


2.   The Rogotchover in Tzafnas Pa'anei'ach Hilchos Trumos 20 and Reb Elchanan in Kovetz Shiurim Kiddushin 61 propose that kiddushin begins an eternal sequence of renewals of the effectuation of the marriage.  In yeshivish, that means that there is a new chalos every second.  If so, we can improve the Avnei Nezer (EH II 387, who says the Mishna LeMelech is only right where she's still in the Chupa, as great unknown guessed) by saying that Chuppah is taking her into your protection, like holding her in your hand, and she is in your reshus forever after even when they walk out of the chuppah.  Or if you want, you can simply say that Chupa is not  כלתה קנינו.  If so, once there was a chuppah, and later you make kiddushin, the kiddushin and the chuppah are chall together, because she's still, in a sense, in the chuppah.  So the brachos you made on the kiddushin and the chuppah were not levatala, because that's when you began the mitzva of kiddushin and chuppah, which came to finality when you made the kiddushin later.

3.  The Chazon Ish (63:23) says a massive chiddush, as follows:

וכן בקידושי טעות הברכה קיימת כיון שברכו בשעה שראויין לברך ואף שהיה בטעות ראוי לאדם לברך את ד' בכל היום אלא שאינו רשאי להרבות בזה וכעין שאמרו סיימתינהו לכולהו שבחא ולכן צריך להתנהג בגדרים מיוחדים ולזה הגדירום חז״ל אימתי לברך וקבעו השעות שהאדם יותר מוכן בהכרת בוראו וחסדיו וכל שעשה ברשות חשיב ברכה ויוצא בה שכבר הגיעו שעה המוכנת אף שהיתה בטעות

(ומקרי חד אישות מהכניסה שהיתה בטעות עד עכשו שחדש הקדושין)

I have to admit, though, that it's not really accurate for me to characterize this as a massive chidush, because maybe I would realize it's not such a chiddush if I understood it.  What does he want with the last parenthesized sentence?  Is this a new pshat?  And in the main part of the paragraph, what does it mean that it's the right time for a bracha, even if it turned out that there was no kiddushin?  What made it the right time?  The mistaken idea that they were making a kiddushin?  The flowers?  Does he mean that we have more leeway here because the brachos are Birkas Shevach and not Birkos Hamitzva?  Or does he mean that even if there are some birkos hamtizva here, it's ok, because it looked like a chasuna even if it turned out to not be a chasuna?  I just don't know.   But the part where he says that it's one Ishus from the Knisa despite the error, מקרי חד אישות מהכניסה שהיתה בטעות עד עכשו, which sound very much like my second pshat- that part I like.

An additional benefit of the Chazon Ish is that in our case, you would just go ahead with the Sheva Brachos.  Although you cannot redo the Kiddushin on Shabbos (it is similar to an act of kinyan), you can continue the brachos because כל שעשה ברשות חשיב ברכה ויוצא בה שכבר הגיעו שעה המוכנת אף שהיתה בטעות would continue to apply to this extension of the previous brachos.

One thing I do know.  BE'H when we have siyata dishmaya for my youngest son to get engaged, I'm going to tell him to make a mark inside the ring that he buys so that when he gives it to the Kallah, he'll know for sure it's the one that he bought.

Shoftim, Devarim 16:18. Modesty Police

Recently, our Bnei Brak and Yerushalayim Mishmeres Hatznius, the Modesty Patrol, and the violence generated by and in reaction to them, has been in the news. From The Yeshiva World on 8/28/08-- *Chareidim in the Meah Shearim area of Yerushalayim on Monday continued throwing rocks and burning garbage receptacles in protest against the continued incarceration of members of the Vaad Tznius. A number of streets were closed as a result of the violence.

Coincidentally, that issue is mentioned in this week's parsha.

The Baal Haturim here says that the connection between Shoftim and the end of R’eiy, which talks about the Regalim, is, as Reb Avin says in the Gemara in Kiddushin 81a, in the sugya of yichud, “sakva d’shatta rigla,” that the worst time of the year (for people getting into trouble with the opposite sex) is during the Yamim Tovim. Therefore, as the Rambam in 6 Yomtov 6 says, “it is the duty of Beis Din to appoint ‘shoftim’ during the Regalim to circulate and to check gardens and orchards and riverbanks so that men and women shouldn’t gather there to eat and drink and come to sin.”

Rav Shternbuch here says that a community should have shotrim walking around during weddings to make sure that there's no hanky panky going on. Talk about a Hechsher Tzedek...

The question arises, however, whether the Morals Police should carry lethal weapons, like the American police, or perhaps truncheons and whistles, British Bobby style, would suffice.

Or, maybe

She's wearing WHAT????

The answer is found in Rashi, who says that the Shotrim carry sticks and lashes.

The truth is that it is easy to make fun of the concept of Taliban-style enforcement of public virtue, and the tznius squads usually end up composed of two types: the sexually repressed in misogynistic reaction formation/over-compensation people, and wild-eyed burka people; but we have to remember that our Torah, and our tradition from the Gemara, from Rashi, from the Rambam, and from the Baal Haturim, teach us that this is something that a Jewish community should aspire to. Theoretically, a sensitive application of this concept in a religious community would be a good thing.

But, as I discussed in the immediately previous posting, every time and every place requires its own approach to a problem; what may have worked in small, insular and homogeneous religious communities, clearly wouldn't work--would indeed likely be counter-productive--in our pluralistic, modern communities. Yiftach's approach would be wrong for Shmuel's generation, and Shmuel's approach wouldn't work in Yiftach's. Either one would probably not work in our generation, especially considering our distaste for religious compulsion; we are raised in a society that believes in absolute autonomy, that religion and morality should be matters of personal choice. But let's not forget that if it were possible, if it could be done in a rational and prudent manner within specific religious communities, if it could be done without sliding into extremes, if it were less harsh compulsion and more a matter of quiet persuasion, this would be a very positive endeavor.

I think that most people would agree with this concept, but disagree on the extent of its application; most would agree that parents should establish rules and punish the breach of rules within a family: many would say this is appropriate for anyone who is in loco parentis-- a teacher in a classroom, or for a principal in a school setting; the only question is, how broad of a group do we apply this to. Many times, reading the paper about the latest financial malefactor, I think that many of us really need a father to give us a little patch. The concept of Shotrim who prevent a breakdown of societal moral standards is timeless: where and how they are to do this, must change with the times.

Of course, the first reaction of many 'modern' Orthodox Jews is that they go to mixed dancing weddings, and to the beach, and “lo allah be’libam davar,” that no inappropriate thoughts enter their minds. This might be true (it's not); but this is not evidence of innocence. It only illustrates the callousness that comes from habituation, and such a state is as pritzusdik as actual hirhur. People need to realize that there is a concept of societal public modesty--Das Yehudis--that means that people are not used to frivolous social contact with the other sex. True, the result of such modesty is that hirhurim are more easily triggered; an exposed ankle was scandalous for the Victorians. But considering society as a whole, this is a better condition than being so inured to contact that it becomes insignificant.

A cousin of mine, in Israel, once said to me that yeshiva bochrim think about girls more than modern boys. I agreed that even if this were true (it isn’t), the rate of premarital pregnancy and venereal disease is probably lower among Yeshiva Bochurim and Beis Yaakov girls than it is among her Tel Avivian friends. Or, as a lawyer would put it, chronic misdemeanors are not the same as an occasional felony.

Shoftim, Devarim 17:9. Asher yihiyeh bayamim haheim. A Leader Has to Match His Community.

The passuk here says that in matters to which Torah law has relevance, one must consult the Torah scholars and leaders of one’s generation.

The Gemara in Rosh Hashanna 25a-b asks, "vechi sa’aleh al daitcho...’ would it have entered your mind that you should go to the leader of a previous generation? The answer is that "Yiftach bedoro kiShmuel bedoro." Yiftach, although he was a God-fearing man and a great leader, was nowhere near as great as Shmuel; even so, Yiftach in his generation is equal to Shmuel in his. Also there— even a ‘kal shebikalin,’ the most light-weight of spiritual leaders, once he is appointed on the tzibbur, must be viewed as an ‘abir shebe’abirim, ’ as if he towered over the highest of towering persons.

R’ Chaim Shmuelevitz discusses this in his Sichos Mussar, #40, pages 169-170: he says that the pshat is not that we have no choice because the earlier gedolim are not available. The pshat in Tosfos in R"h that says "ein lechoh ella shofeit she’hoyoh b’yomecho" is he is the right one, and the best one, for you. Then he brings from Koheles Rabboh 1:4:4 that if Aharon lived in the time of Yehoyadah and Tzadok, they would have been greater than Aharon– because for that generation Yehayodah would have been more fitting. Then he brings the story of Choni in Taynis 23a, where he awoke to find that many years had passed, and upon rejoining the grandchildren of his peers in the Beis Medrash, he began to say his divrei Torah, and they looked at him as if he were deranged. He became depressed, and said, "O chavrusa, o misusa", either people with whom I can study, or death. Reb Chaim asks, why didn’t Choni demonstrate to them his gadlus in Torah? He would immediately be made Rosh Yeshiva by enthusiastic acclamation! The answer is that his pshatim and teirutzim would not have made sense to them. Their reaction would not be one of awe and amazement; they would look at him as if he were a Baal Habos that knows a few things but is far from being a talmid chacham.

I think there is are two very important lessons here:

The first lesson:
The solutions that one generation uses to address a problem, and which are perfect for that time and place, should not be blindly followed in a different generation. You have to wisely and carefully assess whether the methods are still appropriate.

The second lesson:
If a Shul doesn't choose a particular Rav, or if the relationship is so dysfunctional as to inevitably cause a parting of ways, it does not necessarily reflect badly on the Rav or the shul— if Shmuel lived in the time of Yiftach, people would think he was not normal. You can’t have a rabbi that you think is not normal. Of course, it may be that the people aren't willing to hear mussar, and the Rav is exactly what they need. But it's also possible that that it simply is not a good match: what good is a rabbi that, to you, is really not nechshav leklum? You can’t taeineh on the people that they should respect him. For them, in fact, he is really out of place.

In a sense, this is similar to shidduchim. The best shidduch for one person is poison for another. I remember, when I was a bachur, that a friend of mine became engaged, and he was very happy with his kallah. A very close friend of his, whose initials are AH, was shmuesing with him, and he said, look, Ploni, you know I am your friend, and I realize how important a great yichus is, but my god, don’t you care what she looks like?

As a matter of fact, the chassan thought she was pretty. And he did marry her, and they lived, at least last time I checked, after thirty some years, happily ever after. I imagine that the friend’s comment was chilling, but he got over it.

(AH eventually got married, too, and in some people's opinions, his wife is nothing to be proud of, although I suppose it is very likely that if you think Secretariat was attractive, she's attractive too.)

Now, it is obvious that attractiveness and personality are judged subjectively, and they should be. For AH, the girl was a miuskaeit. For the chassan, the girl was pretty. What is less obvious is that leadership, in a manner of speaking, is indeed a beauty contest– in the sense that what is beautiful for one time and place, is completely inappropriate for another time and place.

My son shtelled tzu the story with Eliahu, which actually reflects both lessons discussed here. Hashem told him "ahd masai attah me’kanei es kinasi." ‘Ahd masai’ means that the time for kinah has passed, and different methods are needed for the hanhaggah of this generation. The time and place for Eliahu’s method of leadership had passed, and he had to leave this world.

Recently, the Yeshiva world had it's biennial Chavrusa Tumul, in which everyone gathers and decides who is going to learn with whom. Speaking of chavrusas and shidduchim, maybe this is the best way to choose a match. I wonder whether we can get a shidduch tumul going-- get the boys and the girls in one big room, and tell them that at the end of the day, you're leaving with one person, and that's it. Let them fight it out then and there.

Shoftim, Devarim 16:18. Shoftim veshotrim.

The Medrash here brings the passuk in Mishlei "Leich ehl nemalah atzeil...asher ein lah katzin shoteir umosheil.... and says that one Tanna saw how an ant put down a grain of wheat and many others came and smelled it and did not move it away from its place, showing a sensitivity to gezeilah.

Mei’inyan le’inyan:
A member of my shiur, LW, remarked that the Gemora seems very sensitive to smells, both bad and good. I dismissed this as a trivial observation. However, see Sanhedrin 93b, where the Gemara says regarding Mashiach "V’nachah alav ru’ach Hashem..." and (Yeshaya 11) V’heirichu bidvar Hashem," which Rava interprets to mean that he is able to pasken by smelling the object or the person before him. Rashi there D"H Rava amar says that this is the pshat in the passuk of "lo l’mareh einav yabit v’lo l’mishma ozen yochi’ach," and despite that, "v’shafat b’tzedek dalim." How can he do that? By smelling the people or things involved. (I think that failing this test was a proof that Bar Kochva was not the Moshiach.)

Also, Niddah 20b, where R Elozor would smell mar’os and pasken.

I seem to remember that R Rudderman (maybe it was R’Moshe) that shtelled tzu another Gemara about paskening whether a certain kikar was tomei or tohor. I think it was the Gemara in Shabbos 138, where the woman took the kikar around to find out whether it was a rishon or a sheini when it was in an oven with a sheretz. I think he said that the only reason she would have to bring the kikar to the Dayanim was so that they could smell it.
In any case, you see that Chazal did attribute a certain spiritual capacity to the sense of smell.

Similar instances:

• "Rei’ach be’ni k’rei’ach hasodeh asher beiracho Hashem."

• Mordechai Hatzadik is symbolized by the K’tores.

• Amoleik is symbolized by to the fly that spoils fragrant oil.

• "Vayarach Hashem es rei’ach hanicho’ach" along with the din of Rei’ach and Nicho’ach by almost all korbanos (but not by Korban Pesach).

• Shir Hashirim 1:12, "Ahd she'hamelech bimsibo, nirdi nasan reicho."

• And, most interesting, the Gemara in Brachos 43b, where Rav is quoted as saying "From where do we learn that one makes a Bracha on a pleasant smell? From the passuk in Tehillim 150 "Kol haneshama tehalleil Yah." What is it that that the Neshama enjoys but the body does not? One must say this is the sense of smell."

Harav Shimon Krasner, mechaber of Nachlas Shimon on Tanach, tells me that the Tshuras Shai (a Sigetehr sefer of Tshuvos) discusses whether a dayan can pasken on the basis of information that he has b’ru’ach hakodesh, without any eidim or evidence. I suppose this is connected to the Lo bashomayim hi issue, and see the Maharitz Chayos in Yoma in the last perek, where the Gemara says that the Mahn helped decide monetary issues such as whether an eved belonged to Reuven or Shimon, and whether a marriage was still intact, where he mentions a sefer of his in which he proves that while a psak of halacha cannot be min hashamayim, determination of physical fact that comes min hashomayim can be accepted.

Now, without seeing his discussion, the Gemara in Shabbas 108a immediately comes to mind: the Gemara asks whether one may write the parshios of Tefillin on fish skin. The Gemara says, we'll have to wait for Eliahu Hanavi to tell us. The Gemara then asks, "and when he comes, how will that help us?" Rashi explains, because lo bashamayim he. The Gemara then answers, that the issue is only whether the 'zuhama,' the bad smell, ever completely leaves the skin. It is clear in this Gemara, then, that determination of fact is something that we can wait for Eliahu to tell us.

But then you have to wonder, if the issue is whether fish skin retains an odor, do we really have to wait for Eliahu Hanavi to pasken? Maybe he doesn't have a good sense of smell. Moshe Rabbeinu was a kvad peh; maybe Eliahu is a kvad ahf! And why don't we just go to Paris and ask one of the "Noses" that create perfumes? Perhaps this is another example of what the Gemara in Sanhedrin 93, mentioned above, is talking about-- that the Melech Hamashi'ach will have an exquisite sense of smell. and he will be able to tell us whether it retains an odor that passels for dvarim shebikedusha.

Also, see R Schwab here in his Maayan Beis Hasho’eivah on 18:15. He says that even Shmuel, the "ro’eh," only saw external fact, as we see when he thought Dovid’s brother Eliav was the king he was to anoint. He says that the ability to see into the heart is unique to the Melech Hamoshi’ach, and he brings the Gemara in Sanhedrin 93b and Rashi that he will smell the baalei din and know who’s chayav.

Thank you to Chaim B, who mentioned Reb Meir Simcha in the Meshech Chochma Breishis 29:35, Hapa'am Odeh es Hashem. He says that Reuven's name involves the sense of sight, Re'iyah; Shimon's, hearing; and Levi's, touch (yilaveh eilai ishi, contact.) On all these senses, one does not make a bracha. But Yehuda, whose essential nature particularly involves the sense of smell, as the Gemara in Sanhedrin brings from V’heirichu bidvar Hashem," this sense does involve a bracha-- hapa'am odeh es Hashem.

I don't have the Bnei Yisaschar in my library. I don't want one in my library. I only enjoy that kind of thing when it supports something I have from elsewhere, or when it is based on kishron and Chazals from Shas Bavli and the Medrash Rabbah. But when I get my hands on a Bnei Yisaschar, I'll report on his discussion as well bl'n.

Report on Bnei Yisaschar:
This appears to be his own chiddush. While much of what he says is tzarich iyun, expecially his kashe on the Gemara in Brachos, the following is what I gleaned from his discussion:
All the senses are listed in the sin of the Etz Hada'as, with the exception of smell. Therefore, the sense of smell was the least vulgarized of all the senses, and remains ethereal and, to some extent, spiritual. This is why we make a bracha on besamim after Shabbas: Motzei Shabbas is associated with Eliahu and Mashiach. Mashiach will have the unique talent of being able to discern spiritual qualities via the sense of smell. Specifically at the time of the geula this talent will become evident, because that is the time that the flaws of the nachash, the Zuhama, will be completely banished and reversed.

I know that Bloodhounds have a sense of smell that is like ten thousand times more acute than that of people. We're talking about a sense of smell that is associated with the rational and spiritual faculties: those gifted dogs will eat rotten fish and maggoty meat with pleasure. Evidently, the basic esthetic of their sense of smell is different than ours.

Shoftim, Devorim 16:22. Lo sakim lecha matzeivah- Do Not Erect a Monolithic Altar. (It Might Be Muttar to Act with Derech Eretz in an Orthodox Shul.)

This dvar Torah will be of particular interest to talmidei chachomim who are familiar with the Lanham Act, perhaps a relatively small subset. However, all readers will find that there is a great chiddush based on a Maharal: It might be muttar to act with decorum in shul, as will become clear below.

A Matzeivah is a Single-Stone Altar; a Mizbei’ach is a Multiple-Stone Altar. This passuk prohibits the use, even the erection of, a single stone altar. Multiple stone altars, on the other hand, are allowed.

Rashi– even though Hashem loved single-stone altars in the days of Avraham Yitzchak and Yaakov, now Hashem hates them because they have been adopted by idol worshippers for their sacrificial service.

The Ramban asks an important question here. Why are multiple-stone altars allowed, if idol worshipers use mizbeichos as well?

The Ramban says two teirutzim. He doesn’t like his first teretz himself, and his second teretz is that you have to be makriv on something, so mizbeichos had to remain muttor - even though the same logic that prohibited matzeivos should also prohibit mizbeichos.

The Maharal and the Netziv say interesting answers. The Netziv says that not only did they use matzeivos, they also worshiped the matzeivoh itself. So although their mizbeichos were used in the service of avodoh zoroh, their matzeivos were avodoh zoroh themselves, and that’s why they were more repugnant to Hashem.

The Maharal in the Gur Aryeh here says a very interesting teretz. He says that matzeivos were relatively uncommon, while mizbeichos were universal. Only a thing which is unusual and is then used by ovdei avodoh zoroh becomes assur. Mizbeichos, on the other hand, are universal: they are the natural way to be makriv a korbon. Therefore, the fact that they are used by idol worshipers is no reason to asser them.

Expanding on this, it seems that he is saying that if something is unusual, its use for avodoh zoroh associates it, in people's minds, with avodoh zoroh. But if something is a natural and universal method of worship, its use for avodoh zoroh does not set it apart as related to avodoh zoroh.

This analysis is a point by point reflection of the Lanham Act rule on Trade Dress Infringement, a category of Trademark Law. Trade Dress refers to a way of packaging or presenting a product, or a way of doing business. Examples: The shape of the old glass Coca-Cola bottle; The pink color of Owens-Corning fiberglass insulation; The shape and color of Pfizer's Viagra. Trade Dress can be protected under Trademark law only if the Trade Dress is neither functional nor utilitarian nor generic. Only if the trade dress is non-functional in the product, nor does it serve a purpose in the use or presentation of the product, and it is arbitrary, it might be granted protection. Also, where the Trade Dress is not inherently distinctive, it might acquire secondary meaning and become associated with a particular brand and then be granted protection, such as block letters, certain pictures, or package color. In other words, trade dress that is functional or utilitarian cannot be protected. The U.S. Supreme Court has said that a shape or feature is considered functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” If trade dress is not functional and is not likely to be confused with the previously used trade dress of another product, it can be protected as a mark. However, it must either be inherently distinctive or have acquired distinctiveness. To be deemed inherently distinctive, trade dress must be unique or unusual in the particular product field. Companies vigorously protect their exclusive use of their trade dress, because if another company uses it, it may cause confusion, and consumers will associate the other company's product with their brand.

This analytical protocol matches that of our Maharal. Transposed to our context, we would say that a the use of a Matzeiva for sacrificial service is an arbitrary and distinctive feature, whose use for Avodah Zarah creates secondary meaning associating it with those Avodah Zarahs. A Mizbei’ach, on the other hand, is a generic means of doing avodah, and as such, is neither distinctive nor does it easily acquire secondary meaning. It is not something that sets a particular religion apart in people’s minds. For example, with the Maharal we can explain why wind organs were dropped from our tefillos, but bowing is still muttar.

I saw a well-expressed thought from R’ Nachman Bulman: the context was that when groups whose hashkofos are antithetical to ours adopt/appropriate a thing or an idea, we tend to distance ourselves from that thing or idea; e.g., our not using wind organs because they have become identified with the church. He said, “The Zionists passeled Eretz Yisroel, the Lubavitchers passeled Tzipiso Li’yeshu’o, and Reform passeled Kovod Beis Haknesses. Soon, there will be nothing left for Frum Jews.” (Actually, his words were: “because of Zionists, we can’t love Eretz Yisroel anymore. Because of Lubavitch, we’ve stopped yearning for Mashiach. Because of Reform, we can’t have decorum in shul. If this keeps up, frum Jews will have to give up the whole Torah.” Jewish Action Winter 5763/2002, Toby Katz’s article Who Will Comfort Us?, about her father.}

But now that we have the Maharal’s svara, we can say a tremendous chiddush. Since the Maharal says that the only things that become possul when adopted by Avodah Zarah are distinctive and arbitrary elements, it could be that it is muttar to behave respectfully in shul! Having respect for a place of worship is not unusual. It is natural and universal to respect your place of worship. Therefore, it might be muttar to behave like dignified and respectful grown-ups in shul.

(The Maharal works well in connection with the general issue of Chukos Ho’amim: This is like the discussion in Tosfos Avodah Zorah 11a d’h “V’ee Chukah Hi, Heichi Sarfinon” and Sanhedrin 52b in the sugyo of Okrin ahl ham’lochim, on the topic of a minhog which we have that goyim begin to do in their religion. See also Sifrei Shoftim 146, the Ramo in Yoreh Deah (178:1) based on the Ran in Avodoh Zoro 2b Sorfin that anything with a logic is muttor, the Gra there that asks on the Ran from the gemora in Sanhedrin (52b) where the logic of performing the mitzva of hereg only with the specific sword requires a possuk to get out of the problem of chukos HaGoyim, because according to the Ran, a possuk would be unnecessary since the only issur of chukos HaGoyim is when you follow them blindly without a reason and by hereg, the preference for a cleaner death is certainly applicable. Rav Ovadia Yosef (Yabia Omer III,24) and Rav Zolti (Noam, II, p. 161-170) both say that the Machlokes between the Ran and Tosfos, or the Ramo and the Gro, is whether we follow the sugyo in AZ or in Sanhedrin. Also the Taz in Orach Chaim 8 that says that because of Chukos Hagoyim it is a chiyuv d'oraiso to wear a yarmulka, and the Malbim in Artzos HaChayim 2:43 who says that the Taz is not like the shittas hoRamo in Yoreh Deah 178:1, and see R Moshe in OC I:4.)