Do the rich need to pay for the healthcare of the poor?

In a recent Huffington Post article, Rabbi Shmuly Yanklowitz criticized the Republican health care plan and puts forth what he asserts is the Jewish perspective.

Today, Senate Republicans unveiled their so-called healthcare plan—the Better Care Reconciliation Act—conceived in secret and designed to deprive millions of people access to affordable health care, while cynically giving tax breaks to the wealthiest Americans. These Senate Republicans, who so-often like to flaunt their spiritual credentials, would do well to remember the obligation to pay for the cure of a person who has a life-threatening illness: “From the straightforward reading of Sanhedrin 73a, we see that one is obligated to do everything to save him, and if not, one transgresses the negative commandment: ‘Do not stand idly by the blood of your neighbor’” (R. Shlomo Zalman Auerbach, Minchat Shlomo, V.2, 86:4).

Personally, I am not entirely convinced that Rav Auerbach is correct, that the obligation mentioned in Sanhedrin 73a of hiring others to save, in cases of external acute threat to life (such as drowning, mauled by beasts, attacked by robbers), would extend even to internal and chronic conditions*.  Or that Rav Auerbach's position is widely accepted.

Regardless, I always encourage people to look up the sources, because people on the religious or political right or left -- that is, a lot of authors out there -- can be tempted to take sources out of context. Here is what Rav Shlomo Zalman Auerbach actually writes:

"4: The obligation regarding expending money to save a sick person:
Regarding the obligation to finance the costs to save the life of a dangerously ill person, from the straightforward reading of the gemara in Sanhedrin 73a we see that he is obligated to do everything to save him, and if not, he violates the prohibition of 'Do not stand idly over the blood of your fellow. (In my humble opinion, it is obvious that the sick person himself is obligated afterwards to repay him.)  

And if it be said that upon this prohibition, which requires an action, there is no obligation to despoil all his wealth, still, a tenth or fifth he is still obligated. And in this particular case, it seems more logical that this prohibition is much more severe, and indeed he should be required to despoil all his wealth..."

And it continues, but I am going to stop here.

Since Rav Auerbach writes that obviously the sick person must pay back, the idea seems to be that if these medical expenditures are holding up the procedure, that the wealthy (or really, anyone who can provide the money) must provide it to save the life. But that does not mean that the poor sick person is not on the hook for the expense. Rather, 'it is obvious that the sick person himself is obligated afterwards to repay him'.

Therefore, I am not sure that this would be a convincing argument to those wicked corrupt Senate Republicans who really want to oppress the poor, but on the other hand want to listen to Gedolim.

---------------
Footnotes:
* While we don't make such distinctions nowadays, there is a tension between 'verapo yerapei', you shall surely heal him', and the criticism of King Asa for going to doctors, and a distinction is made between internal vs. external. See Ramban, Ibn Ezra, Rabbenu Bachya.

The Perils of Expounding on Lashon Hara

A disturbing Shmuz this past week, on Behaalotecha. The author in all likelihood didn't mean it this way, but this goes to show how you must be careful when instructing people about lashon hara.

The pretext for the Shmuz is this pasuk and Rashi at the end of Behaalotecha:

1Miriam and Aaron spoke against Moses regarding the Cushite woman he had married, for he had married a Cushite woman.

אוַתְּדַבֵּר מִרְיָם וְאַהֲרֹן בְּמשֶׁה עַל אֹדוֹת הָאִשָּׁה הַכֻּשִׁית אֲשֶׁר לָקָח כִּי אִשָּׁה כֻשִׁית לָקָח:

Miriam and Aaron spoke: She spoke first. Therefore, Scripture mentions her first. How did she know that Moses had separated from his wife? [See below] R. Nathan says: Miriam was beside Zipporah when Moses was told that Eldad and Medad were prophesying in the camp. When Zipporah heard this, she said,“Woe to their wives if they are required to prophesy, for they will separate from their wives just my husband separated from me.” From this, Miriam knew [about it] and told Aaron. Now if Miriam, who did not intend to disparage him [Moses] was punished, all the more so someone who [intentionally] disparages his fellow. — [Tanchuma Tzav 13]

ותדבר מרים ואהרן: היא פתחה בדבור תחילה, לפיכך הקדימה הכתוב תחלה, ומנין היתה יודעת מרים שפרש משה מן האשה, רבי נתן אומר, מרים היתה בצד צפורה בשעה שנאמר למשה אלדד ומידד מתנבאים במחנה, כיון ששמעה צפורה, אמרה אוי לנשותיהן של אלו אם הם נזקקים לנבואה שיהיו פורשין מנשותיהן כדרך שפרש בעלי ממני, ומשם ידעה מרים והגידה לאהרן. ומה מרים שלא נתכוונה לגנותו, כך נענשה, קל וחומר למספר בגנותו של חבירו:

Tanchuma

It is hard to understand what the Midrash Tanchuma (and by extension, Rashi) means by saying that she didn't mean to disparage Moshe, and yet was punished. One could struggle with this and come up with various real (non-shmuzy) answers. For instance, reading the Tanchuma inside, I think it might be possible that she was wondering whether she and Aharon were supposed to follow suit, since it was not only Moshe with whom Hashem spoke. Alternatively, she was acting out of concern that Moshe act properly in accordance with what was supposed to be done, or to aid in his marital harmony with Tzippora. Regardless, the message intended by both Tanchuma and Rashi is NOT the first clause of the kal vachomer (that is, the kal), but rather the second clause of the kal vachomer (namely, the chomer). It is dangerous to puff up the first clause and then hold everyone to that puffed-up standard, as we shall see.

Rabbi Shafier titles the essay, "If You’re Wrong It’s Lashon Harah". He then writes:

This Rashi is difficult to understand. What was Miriam’s transgression? She witnessed her brother doing something that in her estimation was wrong. She didn’t go blabbing the news all over town. She went directly to [a] spiritual giant, the Kohain Gadol, Moshe’s brother Aaron, to ask for his advice. If she was correct and Moshe was acting improperly, then Aaron would validate her assessment. If she was wrong, he would correct her. What was her transgression? Her intentions were pure. Her actions were discreet. Where is her wrongdoing?  

The answer to this question is based on understanding what the Torah considers slander. The Rambam explains that the definition of lashon harah is, “Words that hurt, words that damage.” Whether damaging a man’s reputation, harming his career, or spoiling his standing in the community – they are words that that cause harm.

The problem here is that, in our present society, incorrect concerns of lashon hara and mesira are what allowed and allow sexual abuse of children to thrive. Some rabbis (correctly) say that one should report directly to police. The Agudah, in contrast, has said that there must be raglayim ladavar, and that one should consult a rabbi to determine this, writing:

There may be times when an individual may feel that a report or evidence he has seen rises to the level of raglayim la’davar; and times when he may feel otherwise. Because the question of reporting has serious implications for all parties, and raises sensitive halachic issues, the individual should not rely exclusively on his own judgment to determine the presence or absence of raglayim la’davar. Rather, he should present the facts of the case to a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation – someone who is fully sensitive both to the gravity of the halachic considerations and the urgent need to protect children.

Now this Shmuz comes along, where Miriam consulted with an halachic authority (the Kohain Gadol, a spiritual giant) to ask for advice, and was punished, because she was wrong, and if you're wrong, even this is lashon hara! Is it really a good to convince people that asking a shayla has problems, real or potential, of lashon hara?!

That isn't what the Shmuz necessarily intends to concludes. Later on, the author writes:

That was Miriam’s’ transgression — not judging her brother properly. She miscalculated. Everything she did after that was correct, but it was all based on her error. Her mistake was in her initial assessment, which then led to her to slander her brother unintentionally. But unintentional slander is slander nevertheless.

In other words, it was her earlier mistake in not judging Moshe favorably, that was her transgression, and other actions were correct had she been right. However, effectively, he is saying that consulting a rabbi for a halachic question is slander nevertheless, for which one is punished, in the case that one is wrong.

To his credit, he declares that sometimes it is a mitzvah to speak out. But he casts it as only where there is a no room for error.

There are, however, times when lashon harah is permitted. If someone speaks for a constructive purpose and that speech meets exact Torah guidelines, then it is a mitzvah. In that case, the report isn’t considered disparaging. Quite the opposite, since we are obligated to protect our fellow Jews from harm, sometimes we must inform others of what we know. But that is the point: Torah law defines what constitutes slander and what is a mitzvah. The line between the two is often very thin. 

The Chofetz Chaim writes that to permit the telling of disparaging information, a person must have first-hand knowledge of the facts, and there can be no room for misinterpretation. No room for error. If there is another possible explanation which shows the act in a different light, then he is forbidden to speak.

(In general, I am not in favor of Chofetz Chaim-based lashon hara guidelines (as her propounds in this essay), for several reasons. People over-apply them. They are formulated in a way biased to prevent possible slander, more than concerned for protecting potential victims. They took what had, until this point, been a mostly hashkafic and good-middot matter, and transformed them into halacha. And while some contemporaries disagreed with him, for lashon hara, unlike the rest of his halachic work, we don't have an Aruch HaShulchan disputant to give contrast to his Mishna Berurah.)

There is also this bit, about giving the benefit of the doubt to a holy man, at least where that holy man is Moshe:

This seems to be the answer to Rashi. HASHEM rebuked Miriam and Aaron both, saying, “Why did you suspect my servant, Moshe? Moshe was on such a lofty level that you should have realized that what he did was justified and proper. You should have judged him favorably. Because you judged him incorrectly, you mistook his intentions and determined his actions to be improper. You were wrong, and you should have recognized that. He is my servant, loyal and obedient, pure and untainted, an angel walking in the form of a man. You should have realized that he is in a different league than any other man, and you should have judged him favorably.”

Several of the recent rabbinic sexual abuse perpetrators are also, or at least presented themselves, as holy men. Is it really a good idea to give a shmuz to reinforce the idea that, in cases of doubt, one must assume that men of a lofty level have acted appropriately, and therefore, one should not speak out?

Consider the case of Rabbi Eliezer Berland, who was accused of various sexual crimes and is on the run from the Israeli authorities. I've seen two types of defense. The first is exemplified here, that he is a holy person, does miracles, is vouched for by various prominent rabbinical figures, and is therefore innocent. We must therefore know that he is totally innocent of the changes. He is being framed by the evil secular government, plus he righteously accepted this suffering and oppression on behalf of klal Yisrael.

The second type of defense is here (machine-translated here), from the son-in-law (?) of Rav Berland, that indeed he did those actions, but because he is a tzaddik, those actions are appropriate!

בספר מרחיב חתנו של הרב ברלנד ומבהיר שמה שנחשבת כעבירה אצל המון העם, אצל הצדיק היא מצווה ואף חובה לעבור עליה. לדבריו, אם הצדיק אומר לאדם דבר הנראה נגד התורה והמצוות והאדם מסתפק אם לעשותו, זה גרוע כי הדבר פוגם באמונת חכמים. לטענת מתנגדי הרב ברלנד, הספר הגיע לשולחנם של גדולי ישראל והללו נבהלו ואמרו כי מדובר בשבתאות ואפיקורסות ממש.

"... he explains that that which is considered an aveira for the common folk, for a tzaddik it is a mitzvah and indeed a chovah [obligation] to transgress it. According to his words, if a tzaddik says to someone something which seems against the Torah and mitzvot, and the person is unsure if to do it, this is a bad thing, because it is a deficiency in emunat chachamim."

While the approach in this book has been criticized as Sabbateanism or heresy, this is also a potential outgrowth of the attitude propounded by this particular Shmuz. After all, Miriam should have given Moshe the benefit of the doubt, and understood that while, for the hamon am or other common prophets, this separating from one's spouse was bad and improper, Moshe was a tzaddik, in a different league, an angel walking in the form of a man, and his actions are therefore to be understood or assumed to be proper...

Outing anonymous critics and threatening them with death

So this has me somewhat upset. A pseudonymous critic of Rabbi Yosef Mizrachi, Dana Cohen, has disappeared from Facebook, apparently shortly after one of Mizrachi's followers tracked his/her IP address.

While one may disagree with some of Dana's positions and/or approach, this is somewhat disturbing.

To explain, Rabbi Mizrachi has stated in the past that:

1) Dana Cohen is worse than Hitler
2) He wishes anonymous commenters and critics would be out in the open so that they could be killed.
3) He has followers who are thugs who will credibly threaten with death those who criticize him.

For #1, see this video, at the 2:10 mark.

For #2, see this video:
"... every IP number, have a name and automatically, if someone use his computer to public and to murder someone else in Internet, the whole world will know who he is and will be subject to lawsuits, and actions against him, and all kinds of things, even to get killed. Why? You want to kill someone else, expect him to come and kill you tomorrow."


For #3, see this video, from the 1 hour 32 minute mark, for a few minutes.




 where he says that though he knows his critic's identity, he won't reveal it, because his followers will make things rough for her. Because they are ex-criminals and tough guys. And then boasts how, when someone was opposing Rabbi Mizrachi, one such ex-criminal called the person up and threatened, if he didn't apologize to Rabbi Mizrachi, that he would come to his house, take him into the kitchen, and fry him in a pot. Or maybe drown him in a mikveh. And Rabbi Mizrachi had to beg him not to do it. He ends with 'This is not our way. But it is very sad that people lose their olam haba because they are very stupid.'

While it is good that he closed the anecdote with a claim that one shouldn't do this, his attitude while telling the anecdote seems (to me) to be one of amusement and pride. And there is this undercurrent of threat in the very telling of the anecdote -- he knows Dana Cohen is going to hear this, and so he is telling him / her to watch out, or else this might happen.

Frankly, if you have followers who are thugs like this, then it is more than inappropriate to make public statements that your critics are worse than Hitler and that an appropriate response to such criticisms is murder. As the Mishna in Avot (1:11) states:

אבטליון אומר, חכמים, הזהרו בדבריכם, שמא תחובו חובת גלות ותגלו למקום מים הרעים, וישתו התלמידים הבאים אחריכם וימותו, ונמצא שם שמים מתחלל.

I would fault Rabbi Mizrachi for the actions of his followers (including the attempt to find his / her IP address), and of the thuggish silencing of the pseudonymous Dana Cohen.

In defense of the "Official' video of the rally

The Internet is buzzing about "official" music video of the rally. (e.g. Rationalist Judaism, Cross-Currents),


I watched it. Yuck.

Some thoughts, though:

1) While it is branded with Kikar Shabbat, that doesn't mean they produced it. I think they mark any video they put up with that watermark. Did they put it up because they agreed with it, or because they found it newsworthy? I don't know.

2) Poe's Law states:

Without a blatant display of humor, it is impossible to create a parody of extremism or fundamentalism that someone won't mistake for the real thing.

I wonder whether this might be the case here. Consider that the chareidim aren't learning Torah (OK, because it is a rally) but are instead shown littering and dancing around, which might be better called devarim beteilim. While meanwhile soldiers are pictured, who aren't doing devarim beteilim (though this might be my own bias creeping in, causing me to misread the author's intent). They would show Bibi at the UN with the red line regarding Iranian nukes as their choice of devarim beteilim?! This shouts out to me that it might just be parody.

3) It could also be that the author had a tin ear, and didn't realize how this was going to be taken. There is a slightly less obnoxious point he might have been advancing.

Namely, that everybody in the video is Ameilim, putting in effort, for the security of the country. The yeshiva students by learning and the soldiers and politicians by physical and political means. But since everything is in the hands of heaven, and so it is ultimately the merit of the Jewish people that counts, those other well-meaning and courageous actions and personal sacrifices amount to devarim beteilim klapei shmaya.

Still obnoxious, and I still disagree with it, but not necessarily the same obnoxious meaning that everyone was attributing to it.

4) There are jerks and idiots in the world. So of course even on Kikar Shabbat, if some people were attacking it, there will be others who will defend it.

But that doesn't mean it necessarily captures the intent of the organizers, or participants, in the rally at large. Or that the rally held in the US is also designed to advance the same message as the video.

Some thoughts on the Semicha "scandal"

See the Jewish Week, and then the Forward... Also the actual letter at the Jewish Channel.

Some thoughts, now that it is over and resolved.

1) As I wrote on Facebook:

I looked it up in the dictionary, and surprisingly, "scandal" was not defined as "someone's principled decision that I happen to disagree with".  

Interesting...

Yes, some people used "Semicha Scandal" to describe it. But even without using such words, I think that this is how this was framed in the news articles, etc., covering the story.

2) When trying to set legal precedent, it is common to find the most appealing, heart-wrenching case.

And I am sorry that Shalom's wife had been ill. But that doesn't make it "Your Semicha Or Your Wife".

The RIETS student in question, who asked to remain anonymous at this point, told The Jewish Week that his intention had been to have a one-time partnership minyan in his home so that his wife, who had been ill, could be called to the Torah and recite a blessing of gratitude after her recovery.

I may be reading it wrong, but it seems like he was working on the assumption that she could only say birchas hagomel if she herself was called to the Torah for an aliyah. Meanwhile, in my local shul, a woman said hagomel without receiving an aliyah.

And if she was not yet healthy enough to attend shul, or his local shul did not allow women to make this blessing, he could have had a normal minyan in his house, rather than a partnership minyan.

Did he not know this? Was he looking for a pretext? Or was the being called to the Torah also an important aspect of what she wished to do?

Then there is this:

In the meantime, the rabbinic student in question said that while his intent had been to host the partnership minyan just once, at the request of his wife, he is now is unwelcome in his community’s Orthodox synagogue, and he has held subsequent services in his home. Compounding the situation: “The people who came like it,” he said.

In the comment section, some "Anonymous coward" claims to be from his community and says he is indeed welcome in the shul. I don't know that we can trust Anonymous about this. But then again, the entire article is populated with anonymous sources.

Professor Lawrence Kaplan also in the comment section, writes how the student has what to base himself on, because:

If, as the story indicates, the student organized a one-time partnership minyan in his house to enable his wife to receive an aliyah and bentch Gomel, then Rabbi Penner's statement that no recognized posek allows such a services simply is NOT true. Rav Yehudah Herzl Henkin, the author of Bnai Banim and a recognized posek, in a response to to the original essay of Rabbi Mendel Shapiro allowing partnership minyanim, clearly states that while regular partnership minyanim in a synagogue or other public venue are not permitted an ad hoc partnership minyan held in a home or private venue may be permitted

But that assumption that it is just a "one-time partnership minyan" seems somewhat unwarranted. He has held other services (presumably partnership minyanim) in his home, and if he claims that is not welcome in the community's Orthodox synagogue, then these seem to be regular services. (Though it was left unclear where this lies, as it is not really a public venue, but it is regular and not ad-hoc.)

That "the people who came like it" should not "compound[] the situation". A leader does not follow the crowd's desire.

3) I wonder if this letter was leaked as a means to apply pressure to YU to cave. I hope not. They were already in discussion with him.

4) RIETS has a right to insist, if they are honestly professing their belief and imprimatur, that a student is מהתלתים שהגיעו להוראה, that the student will work within a certain framework of halacha.

And if this was before the rabbinical student received the semicha and he was already operating out of (what they believed is) that framework, then they should not grant him semicha. (That is not the same as revoking semicha for those who have already received it.)

5) A few points regarding Rabbi Josh Yuter's comment to the Forward:

Rabbi Josh Yuter, who received ordination from Y.U. in 2003 and now serves as the rabbi of Manhattan’s Stanton Street Synagogue, took issue with the assumptions underlying Penner’s letter, particularly that Y.U.-ordained rabbis do not have the authority to make Jewish legal decisions and are instead expected to defer to more recognized arbiters. 

“That’s not what semikha is,” Yuter told the Forward by phone. “That actually contradicts what it says on the semikha certificate.” He explained that the certificate’s wording makes clear that he has the authority to render decisions about what is forbidden and what is permitted according to Jewish law.

Rabbi Menachem Penner wrote (among other things, read the letter in full):

Ordination is a “stamp of approval” through which an institution asserts that its graduates represent the principles of its Yeshiva. The language written upon the klaf of each musmakh – “Yoreh Yoreh” does not imply unlimited permission to guide others in matters of Jewish law; it assumes that the musmakh will provide such hora’ah in keeping with the principles of the granting institution. Semikha is a “leaning upon” – a transfer of authority for Jewish law passed from one generation to the next, conferred upon the graduates of RIETS as they take their place in the Jewish community.

He might well be deriving that from what it says on the semicha certificate: וסמכנו אותו בסמיכת חכמים להורות לבני ישראל. With the leaning on the chachamim. (One can of course disagree with that diyuk, but it need not contradict, at least on this point.)

There were a number of assertions in the letter, so read the whole thing. I want to expand on some of the points.

A) When some rabbinical students receive semicha, even though the klaf says they were הגיעו להוראה, they weren't really.

I think that this is true, not just about Y.U. ordained rabbis but about rabbis in general, from a swath of other institutions, on both the right and the left. The text of semicha is fixed, but that doesn't mean that it is literally true in every case.

What do you call a rabbinical student who scored a 65 on all his semicha bechinos? "Rabbi."

Sometimes it is just time for a student to move on. Sometimes they will have a fulfilling career as an elementary school rebbe, or a high-school administrator, and they need and should receive the degree. And this is what the klaf happens to say. But they have no business paskening, despite what the klaf says.

B) There is a time and place to recognize when you are out of your element, and such humility is critical. So for relatively "minor" matters within the accredited fields, sure, you have the ability and granted authority to pasken. But not necessarily for the really big issues.

I will present a source or two which appears to demonstrate this idea, along the lines of וְשָׁפְטוּ אֶת-הָעָם, בְּכָל-עֵת:  אֶת-הַדָּבָר הַקָּשֶׁה יְבִיאוּן אֶל-מֹשֶׁה, וְכָל-הַדָּבָר הַקָּטֹן יִשְׁפּוּטוּ הֵם.

Sanhedrin 86b, the Mishna:

זקן ממרא על פי ב"ד שנאמר (דברים יז) כי יפלא ממך דבר למשפט שלשה בתי דינין היו שם אחד יושב על פתח הר הבית ואחד יושב על פתח העזרה ואחד יושב בלשכת הגזית באין לזה שעל פתח הר הבית ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם ואם לאו באין להן לאותן שעל פתח עזרה ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם ואם לאו אלו ואלו באין לב"ד הגדול שבלשכת הגזית שממנו יוצא תורה לכל ישראל שנאמר (דברים יז) מן המקום ההוא אשר יבחר ה' חזר לעירו שנה ולמד בדרך שהיה למד פטור ואם הורה לעשות חייב שנאמר (דברים יז) והאיש אשר יעשה בזדון אינו חייב עד שיורה לעשות תלמיד שהורה לעשות פטור נמצא חומרו קולו:

AN ELDER REBELLING AGAINST THE RULING OF BETH DIN' [IS STRANGLED],¹⁷  FOR IT IS WRITTEN IF THERE ARISE A MATTER TOO HARD FOR THEE FOR JUDGEMENT [etc.].¹⁸  THREE COURTS OF LAW WERE THERE,¹⁹  ONE SITUATE AT THE ENTRANCE TO THE TEMPLE MOUNT,²⁰  ANOTHER AT THE DOOR OF THE [TEMPLE] COURT,²¹  AND THE THIRD IN THE HALL OF HEWN STONES.²²  THEY²³  [FIRST] WENT TO THE BETH DINWHICH IS AT THE ENTRANCE TO THE TEMPLE MOUNT, AND HE [THE REBELLIOUS ELDER] STATED, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT, AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS FIRST BETH DIN] HAD HEARD [A RULING ON THE MATTER], THEY STATE IT. IF NOT, THEY GO TO THE [SECOND BETH DIN] WHICH IS AT THE ENTRANCE OF THE TEMPLE COURT, AND HE DECLARES, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS SECOND BETH DIN] HAD HEARD [A RULING ON THE MATTER]. THEY STATE IT; IF NOT, THEY ALL PROCEED TO THE GREAT BETH DIN OF THE HALL OF HEWN STONES WHENCE INSTRUCTION ISSUED TO ALL ISRAEL, FOR IT IS WRITTEN, [WHICH THEY] OF THAT PLACE WHICH THE LORD SHALL CHOOSE [SHALL SHEW THEE].²⁴  IF HE RETURNED TO HIS TOWN AND TAUGHT AGAIN AS HERETOFORE, HE IS NOT LIABLE. BUT IF HE GAVE A PRACTICAL DECISION, HE IS GUILTY, FOR IT IS WRITTEN, AND THE MAN THAT WILL DO PRESUMPTUOUSLY,²⁵  [SHEWING] THAT HE IS LIABLE ONLY FOR A PRACTICAL RULING. BUT IF A DISCIPLE²⁶  GAVE A PRACTICAL DECISION [OPPOSED TO THE BETH DIN], HE IS EXEMPT:²⁷  THUS THE VERY STRINGENCY OF HIS [ORDINATION] IS [A SOURCE OF] LENIENCY FOR HIM.²⁸

It was possible for members of a Bet Din (who had received real semicha, and were higiu lehoraah) to not know the matter of law. And so they would consult with a greater Bet Din, and then an even greater Bet Din, and then an even greater Bet Din.

Because they had the humility and sense of responsibility to know that they are out of their element, and to consult with their rabo muvhak, or some other acknowledged expect, on the big questions. And that to act otherwise, even though they might have the certificate, would be rabbinic malpractice.

(Yes, we don't technically have a Sanhedrin nowadays. But the ethos is there and could be readily applied to present day situations.)

And there are issues (resolvable) of a student, even competent to rule, not ruling in the place of his Rav. E.g. Sanhedrin 5a:

Tanhum son of R. Ammi happened to be at Hatar, and in expounding the law to its inhabitants, taught them that they might soak the grain before grinding for Passover.¹⁰  But they said to him: Does not R. Mani of Tyre live here, and has it not been taught that a disciple should not give an halachic decision in the place where his teacher resides, unless there is a distance of three parasangs — the space occupied by the camp of Israel — between them? He answered: The point did not occur to me.

And Eruvin 62b:

Said Abaye to R. Joseph: We have a tradition, that ‘the teaching of R. Eliezer b. Jacob is small in quantity20 but well sifted’;21 and Rab Judah also laid down in the name of Samuel, ‘The halachah is in agreement with R. Eliezer b. Jacob;22 is it then permitted23 to a disciple24 to give a ruling accordingly25 in a district that is under the jurisdiction of his Master? — ‘Even’,the other replied, on the question of the permissibility of eating an egg26 with kutha,27 which I28 have been asking him29 throughout the lifetime of R. Huna,30 R. Hisda gave me31 no decision’.32

 R. Jacob b. Abba asked Abaye: Is it permitted to a disciple in a district under his Master's jurisdiction to give a ruling that was as authoritative as those contained in the Scroll of Fast-Days,33 which is a written and generally accepted document?34 — Thus, the other replied, said R. Joseph: Even on the question of the permissibility of eating an egg26 with kutha,27 which I28 have been asking him29 throughout the lifetime of R. Huna,30 R. Hisda gave me30 no decision.

 R. Hisda decided legal questions at Kafri35 in the lifetime of R. Huna.36 [Josh: This place wasn't in Rav Huna's direct jurisdiction]

R. Hamnuna decided legal points at Harta1 di Argiz2 during the lifetime of R. Hisda.3 Rabina examined the slaughterer's knife4 in Babylon.5 Said R. Ashi to him, ‘Why does the Master act in this manner?’ ‘Did not,’ the other replied: ‘R. Hamnuna decide legal points at Harta di Argiz during the lifetime of R. Hisda?’6 — ‘It was stated’, the first retorted: ‘that he did not decide legal points’. ‘The fact is’, the other replied: ‘that one statement was made that he did decide legal points while another was that he did not do so, and the explanation is that only during the lifetime of his Master R. Huna did he decide no legal points but during the lifetime of R. Hisda, who was both his colleague and disciple, he did decide legal points, and I too am the Master's colleague as well as disciple’

I would assume that these Amoraim were higiu lehoraah, and yet they did not decide matters of halacha -- even minor matters, it seems, within their rebbe's lifetime, when in the same vicinity. It was assumed that they would consult with and indeed defer to their teachers.

I wonder, if Rabbi Yuter had lived back then, if he would have objected to the assumption that

[Sura and Pumpedita]-ordained rabbis do not have the authority to make Jewish legal decisions and are instead expected to defer to more recognized arbiters. 

Presumably, Rabbi Yuter has a valid response and competing system of halacha, and an explanation of how this present-day situation is different. And also how deferring that these Amoraim did towards their teachers is not symptomatic of a "vertically-organized, pagan society", to cite one prominent Hakham.

But my point is that there is surely room for others (such as perhaps some roshei yeshiva in RIETS) to legitimately disagree, and there are plenty of Talmudic sources to lend their position credence.

And the Forward and their readership are not interested in, or capable of, providing such a nuanced picture. As such, giving them ammo to criticize YU is not something I would advise.

The Spirit(s) of Halacha

There are parallel legitimate halachic Judaisms which dwell in parallel universes. The contours of mainstream Sefardic halachic practice is different from mainstream Ashkenazic halachic practice. And the contours of each differ from e.g. the halachic practice of the Rambam.

This is fine. After all, תני יצאת בת קול ואמרה אלו ואלו דברי אלהים חיים אבל הלכה כדברי בית הלל (Berachot 9a). Each is the end-product of a legitimate halachic paradigm. Each such halachic Judaism is formed by its laws, decisors, and practitioners.

Part of this legitimacy stems from Emunas Chachamim. (See Pirkei Avot 6:5.) This has been defined in one of two ways. (A) One is trust that everything that the Chachamim say is absolutely correct, such that we cannot question it. (B) The other is trust in the Chachamim to be Chachamim, and to try to rise above personal agendas.

I take the second definition of Emunas Chachamim, that is:

Yes, indeed, emunas chachomim is a very fundamental principle in our faith: we believe Hakadosh Baruch Hu will give divine assistance to an honest and deserving talmid chochom that he should be above his personal negios in issuing a psak; he will not have an agenda. But it doesn't mean that we should believe in nonsense.

It would be a great insult to a member of Chazal to say that he would invent halacha or tradition in order to achieve a particular desired end. (See Yerushalmi Peah 1:15; and Berachot 19a.)

Yet -- while perhaps this takes me outside the pale -- I do think that there is foreign influence on pesak, from the surrounding culture. For example, the Rambam was greatly influenced by Greek philosophy, and lived in Arab countries. This does not mean that he deliberately modified halacha to conform with Aristotle or with Sharia. But it makes sense that his world-view could color his interpretation of ambiguous statements in the gemara, or would make one line of argument more compelling than another.

Certain methodologies of interpretation gained favor in specific parts of the world, or in specific times, but not others. For example, as Professor Haym Soloveitchik said about how the approach of Tosafot differed from that of the Geonim:

They worked on different assumptions. They were aware of contradictions between sugyas and occasionally attempted to resolve them. However, in instances of conflict, the Geonim generally privileged, what was called ‘the sugya de-shemattsa.’ There was a major, controlling sugya where the issue is discussed in the fullest manner, and the halakhah is in accord with the upshot of this sugya. Other minor sugyas, if they contradicted the major one, were not to be heeded.

I would not be at all surprised if the rise, or spread, of different methodologies correlated someone to the zeitgeist, the spirit of the times.

This sort of development of a halachic system is natural and organic. It is not a deliberate discarding of the Torah worldview and deliberate imposition of an external worldview upon it. And it is a flavor of legitimate halachic Judaism.

While I have emunas Chachamim, I must confess that I don't have emunah in the Chachamim of YCT, Open Orthodoxy, Morethodoxy, and so on. Gideon Slifkin wrote recently about Partnership Minyanim:

It's religious politics masquerading as lomdishe debates in psak. Where there's a Rabbinic will there's a Halachic way is the most relevant thing ever said on this topic, and it cuts both ways.

And Ysoscher Katz (of YCT) responded:

Nice summary, Gideon. (As usual) I agree with everything you said up to the last line. (I'm just slightly less cynical-I'm a glass-half-full type) I would paraphrase your conclusion as follows: it's ideology masquerading as halakha. And that is the essence of my debate with Rav Schachter. I believe that ideology is also halakha and as such needs to follow the same standards we have for when we are conducting halakhic debates.

If we genuinely want the debate to move forward, two things need to happen: A) Each side needs to clearly articulate the ideological beliefs that inform their opinion. B) Halakhic debates are textual, they are conducted by evaluating and debating sources. The same needs to happen here. Each side should be required to identify the texts and articulate the sources that form the basis for their ideology.

I believe that Rav Schachter is extracting his ideology, methodology, and his sense of the way that halachic practice should go, from one such legitimate halachic Judaism.

Meanwhile, some others acknowledge, or assert, that Judaism as it has been practiced until now has a patriarchal system which has been unfair to women, and that it needs to be reformed. And if a bunch of halachic sources can be interpreted to achieve that end, and to overturn existing halachic practice, then so be it. This is a good thing. After all, where there is a Rabbinic Will, there is a Halachic Way. Partnership minyanim seems to be one such example, of combining a series of pesakim to achieve a desired end. I don't see that is legitimate, or intellectually honest.

These pesakim don't reflect the ruach halacha, or even a ruach halacha. And in such instances, it would pay to consult those who have gained a sense of the ruach halacha, which was influenced by reading through Shas and poskim, hashkafic works, and so on, rather than American pop-culture.

Further, it is specifically in the face of such deliberate reworking of halacha to meet the external agenda that one should oppose the specific halachic conclusions.

A few respectful answers for Dov Bear

A recent post on DovBear (and on Facebook) was presumably partly prompted by my own recent post of Rav Schachter's letter regarding women wearing tefillin.

[EDIT, removed a pic and paragraph]

DovBear's post starts as follows:

But I do know how to work both Google and the much maligned Bar Ilan-search, plus I have seen a few pages of shas. And the combination of those experiences have left me with a nagging doubt about the central argument Rav Shachter presented in what the blogs are calling his "tefillin missive" So let me raise my hand, like a good talmud [sic], and pose a respectful question.

DovBear sets up the division between Perushim (who were meticulous about tahara) and Amei HaEretz (who were not). DovBear then equates the year-round rejection of teruma from Amei HaAretz (because of ritual impurity) with what he identifies as Rav Schachter's central argument, avoiding sectarian practices. (I am personally not so convinced that there is a valid equation / analogy.)

Then,

But the analogy shatters when you recall that the rules were different on holidays. On holidays the amei haaretz and their food were accepted by the persuhim with love. All stringencies were suspended. Efforts were made within the bounds of halacha to accommodate the ammei haaretz. Why? Because the sages feared that the amei haaretz would go off and start their own sect if they weren't made to feel welcome in Jerusalem on holidays...

My questions, therefore, are as follows: Why is Rav Shachter demanding that we take a stand against Conservative Judaism, when the "offenders" belong to Orthodoxy? Why aren't we concerned, as the Sages were in the example I cite, that taking such a strong stand, and one punctuated with such robust language, might drive the "offenders" out of Orthodoxy, and contribute to the development of yet another sect? And, finally, shouldn't preventing the development of new Jewish sects be our overarching concern? 

But read his whole post.

While I think there are good answers, by which one can distinguish the case of allowing women to wear tefillin and the trusting of Amei HaAretz for teruma during chagim; and further to argue that this is not what the gemara is saying (e.g. rather that the fear of a single Tanna only, was that during the entire year, if they did not accept the wine libations of an Am HaAretz, he would not chas veshalom start his own sect but instead seek another way to libate, by building a private altar, during the time when private altars were forbidden) -- I don't think this is the right response to offer up, at least initially. The right response is methodological.

Though I am not Rav Schachter, I would attempt the following responses, in part drawing from what Rav Schachter already wrote.

1)

והתפלאתי לראות היאך שאנשים בעלי שכל מפלפלים פלפול של הבל בקשר לנדון נשים אם רשאות להתנדב (בתורת אינה מצווה ועושה)לקיים מצות תפילין, והראו פנים לכאן ולכאן,ודנו כאילו היינו חיים בתקופת התנ“ך(שהביאו ממיכל בת שאול), או בתקופת התנאים(שנחלקו התנאים אם נשים סומכות רשות), או בזמן הראשונים (שפלפלו לגבי בנותיו של רש“י). אכן בעו“ה- חיים אנחנו- בשנת תשע“ד- בתקופת מרד המינים נגד התושבע“פ כשהנהגה זו – עטיפת טלית והנחת תפילין – מצויה אך ורק אצל הקונסרבטיבים, שכל הגישה שלהם להלכה מבוססת על היסוד שאכן מותר – ואף חיוב יש – לשנות מדרכי המסורה ע“פ רצונם וניהוגם של ה“עמא דבר” כל עוד שיש להם איזה “מקור” לדבר, ודוקא נקודה זו היא היא ההבדל בינם לבין האורטודוקסים.

I was shocked to see how otherwise intelligent people are engaging in pilpulim, vain pilpulim, dealing with whether or not women may voluntarily perform the Mitzvah of Tefillin (in the manner of “not commanded but fulfilling it anyway”). They have marshalled opinions both this way and that way, and judge things as if we were living in the period of the Tanach (as they cite precedence from Michal Bas Shaul), or in the period of the Tannaim (where the Tannaim debate regarding whether women may voluntarily lay on hands), or in the period of the Rishonim (who debated things regarding the practices of Rashi’s daughters).

However, in the abundance of our sins we live in the year 5774 – in the time period of the rebellion of schismatic movements who fight the oral law.

It is a time when this practice of [women] wearing Talis and Tefillin is found exclusively with Conservative Judaism, where their entire approach to halacha is founded upon the principle that it is permitted – even an obligation to change from the path of our traditions according to the whims and practices of “how the nation conducts itself” whenever there may be any trace of a source to the matter. It is this particular point which is the essential difference between them and the Orthodox. 

To extract one point from this, he is saying that it is not legitimate to cite random and rare gemaras ("any trace of a source") in order to bolster a predetermined and pre-desired outcome. What is the mainstream halachic view as it has already been established?

To try to apply it to this case -- it is great that DovBear has found a source for how they may have conducted themselves in an inclusive manner in the time of the Tannaim. But we live in 5774. And finding an arbitrary Tannaitic or Amoraic source is not sufficient. Which of these sources have been applied in practice over the centuries, until the present day? It would be more persuasive had DovBear demonstrated that this has been applied in practice. E.g. can one incorporate an am ha'aretz into a mezuman, against the gemara in Berachos? According to one Tosafist (Chagiga 22a d"h כמאן), yes and this is based on Rav Papa's application of Rabbi Yossi's reason of איבה in the gemara DovBear refers to. But according to another Tosafist ad loc, that is not the reason for the exception. So what has been the pesak hamekubal? Otherwise, one is just finding a convenient source from the myriads that exist ("any trace of a source") to support the conclusion to which he is already philosophically committed.

At the end of this post, delineated by a horizontal line, I examine the gemaras in question, whether we rule like them, and thus whether they are comparable with the sources (which have been concretely applied) regarding distancing oneself from sectarian practices.

2) So assume we have source A (reject sectarian practices) and source B (accept the halachically questionable so as not to drive them to sectarianism). And then we have a case X, which might be comparable to A and might be comparable to B.

How should we rule?

This is a skill. We may call it מדמה מלתא למלתא. Is case X best compared to seif 1 in Shulchan Aruch, where the answer is assur, or best compared to seif 2 in Shulchan Aruch, where the answer is muttar. People who are unskilled in pesak can very easily be incorrectly מדמה מלתא למלתא and come to the absolutely wrong conclusion. Knowing the underpinnings of the various laws (rather than just their surface structure), as well as being able to accurately assess the reality of case X, is critical in this regard.

And this, one might argue, is the skill of a developed posek, who lives and breathes the sources.

Which is why it is a good thing DovBear was asking Rav Schachter these questions... Unless of course it was meant rhetorically?

3) Let us assume that DovBear has identified the correct approach to take, of inclusion. This may be so. Even so, that does not (IMHO) take away from the seriousness of the shayla, or excuse the Google / Bar-Ilan experts for failing to even take this aspect into account, and instead focusing on the narrow halachic question.

That is, the conclusion may be that X is like B, not A. But first realize the stakes, and that it might indeed be A, and then discuss why it is like B instead.

4) There is also what to argue in metzius. I wouldn't necessarily agree with DovBear's assessment of the social reality and the fallout from taking approach C vs. approach D. But that would have to be the subject of another post.
_________________________

Done.

What now about the sources?

Well, there is Chagiga 22a:

ומאן תנא דחייש לאיבה רבי יוסי היא דתניא א"ר יוסי מפני מה הכל נאמנין על טהרת יין ושמן כל ימות השנה כדי שלא יהא כל אחד ואחד הולך ובונה במה לעצמו ושורף פרה אדומה לעצמו אמר רב פפא כמאן מקבלינן האידנא סהדותא מע"ה כמאן כרבי יוסי

"And who is the Tanna who takes account of animosity? — It is R. Jose. For it is taught: R. Jose said: Wherefore are all trusted throughout the year in regard to the cleanness of the wine and oil [they bring for Temple ??offerings??]?20 It is in order that every one may not go and give and build a high place21 for himself, and burn a red heifer22 for himself. R. Papa said: According to whom is it that we accept nowadays the testimony of an ‘am ha-arez? According to whom? According to R. Jose.23"

Rabbi Yossi is the yachid who argues with the Rabanan in Pesachim 42b on this matter. Do we rule like Rabbi Yossi? One opinion in Tosafot opines that we do (as mentioned above):

כמאן מקבלין סהדותא מע"ה כרבי יוסי. הר"ר אלחנן אומר דקיימא לן כרבי יוסי וחיישינן לאיבה לפיכך מזמנינן עכשיו בכל ע"ה אף על גב דאמרינן בברכות (דף מז:) אין מזמנים על ע"ה וגם רב מנשיא בר תחליפא לא רצה לזמן עליהם והר"י מפרש דלא כל הרוצה ליטול את השם להחזיק לעצמו כתלמיד חכם שלא לזמן על ע"ה בידו ליטול ואין אנו מחזיקים עצמנו כתלמיד חכם לענין זה:

Rambam (Hilchos Metamei Mishchav Umoshav 11:1) says we do accept their word about the wine and oil. However, he does not give the reason of eiva for this:

א  כְּבָר בֵּאַרְנוּ שֶׁעַמֵּי הָאָרֶץ נֶאֱמָנִין עַל טַהְרַת פָּרַת חַטָּאת:  מִפְּנֵי חֻמְרָתָהּ, אֵין מְזַלְזְלִין בָּהּ.  וְכֵן נֶאֱמָנִין הֶן עַל טַהְרַת יַיִן וְשֶׁמֶן שֶׁלַּנְּסָכִים--אִם אָמְרוּ טָהוֹר הוּא, הֲרֵי זֶה בְּחֶזְקַת טַהְרָה:  מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ.

Rather, it is because of its stringency, the Amei HaAretz are believed regarding it, מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ. (See also the Mishna on 24b.)

What about Rav Papa's din, assuming he was saying it lehalacha rather than merely explaining that that opinion was in accordance with Rabbi Yossi? Well, you can see Shulchan Aruch Choshen Mishpat 34:17 for yourself and decide whether we rule like this. It certainly seems that we do not accept the testimony of your average Am HaEretz off the street. But see Beis Yosef on the Tur, who cites attempted resolutions between these two (e.g. from the Rif), such as that they are speaking about two different classes of Am HaEretz, or, that this is why we accept him after establishing his good character.Or -- as I wrote above, and would logically prefer -- Rav Pappa is not trying to establish halacha.

There is a later gemara, Chagiga 26b:

The Mishna:

MISHNAH. IF TAX-COLLECTORS ENTERED A HOUSE,8 AND SIMILARLY IF THIEVES RESTORED [STOLEN] VESSELS9 THEY ARE BELIEVED IF THEY SAY: WE HAVE NOT TOUCHED [ANYTHING]’.10 AND IN JERUSALEM THEY11 ARE TRUSTED IN REGARD TO HALLOWED THINGS,12 AND DURING A FESTIVAL13 ALSO IN REGARD TO TERUMAH.

ובשעת הרגל אף על התרומה:

מנהני מילי אמר רבי יהושע בן לוי דאמר קרא (שופטים כ, יא) ויאסף כל איש ישראל אל העיר כאיש אחד חברים הכתוב עשאן כולן חברים:

"And at the time of the festival, [they were believed ] even on Terumah":

Whence is this deduced? — R. Joshua b. Levi said: Scripture Says: So all the men of Israel were gathered against the city, associated26 as one man:27 thus the verse made them an Associates.28

One could say that this was as part of an inclusive trend, as voiced by Rabbi Yossi. After all, we have the words כאיש אחד and חברים. Alternatively, it could be a mere play on words, since Chaveirim was the technical term for someone who accepted these stringencies regarding sanctity of foodstuffs, to the exclusion of the Am HaAretz.

But an inclusive trend is not the same as "lest they sacrifice on altars". Indeed, if this were the true reason, it would not be only the yachid, Rabbi Yossi, who says this. And further, while not accepting their terumah might cause animosity, unlike libations, it will not cause them to go off and libate on their own.

An alternate explanation is that during the regel, with the great influx of people, insisting on this stringency would cause undue hardship, and so it was relaxed. This is similar to the relaxation on purchasing earthenware vessels for hallowed things mentioned immediately above -- because of the hardship that would otherwise occur:

ובירושלים נאמנין על הקודש:

תנא נאמנין על כלי חרס גסין לקודש וכל כך למה שאין עושין כבשונות בירושלים:

The Rambam seems to hold understand that the Amei HaAretz accept the stringencies upon themselves during the regel:

יא  [ט] טֻמְאַת עַמֵּי הָאָרֶץ בָּרֶגֶל, כְּטַהְרָה הִיא חֲשׁוּבָה--שֶׁכָּל יִשְׂרָאֵל חֲבֵרִים, בָּרֶגֶל.  וּכְלֵיהֶן כֻּלָּן וְאָכְלֵיהֶן וּמַשְׁקֵיהֶן, טְהוֹרִין בָּרֶגֶל--מִפְּנֵי שֶׁהַכֹּל מְטַהֲרִין עַצְמָן, וְעוֹלִין לָרֶגֶל.  לְפִיכָּךְ הֶן נֶאֱמָנִין בְּכָל יְמוֹת הָרֶגֶל, בֵּין עַל הַקֹּדֶשׁ בֵּין עַל הַתְּרוּמָה; וּמִשֶּׁעָבַר הָרֶגֶל, חוֹזְרִין לְטֻמְאָתָן.

At the end of the day, I don't see any clear proof from these gemaras that in established practice we should relax halachic standards in order to prevent Amei HaAretz from founding their own religion.

However, of the many commenters and readers of that blog post and Facebook post, how many do you think took the time to look at the gemaras, Tosafot, Turs, Shulchan Aruchs, and so on, inside? How many are capable of doing it, even with Google-ing. Yet how many were persuaded by this solid argument, which so persuasively challenged Rav Schacter?

Note: Not halacha lemaaseh. I just did some quick Googling and quick skimming of sources to get the above. :-)

Rav Schachter's missive, and the response

Rav Herschel Schachter recently weighed in on the girls-wearing-tefillin question. He makes a number of persuasive points (though he certainly needs no endorsement from me). For instance, one point of many -- and this is me channeling, rather than summarizing what he wrote -- people think themselves experts because they can search Bar Ilan and get instant access to all the relevant sources. However, they are not really experts. People who live and breath the sources develop a feel for the way halacha works. And they might better assess a halachic question to understand the far reaching implications, and aspects of the question that the pseudo-experts who know how to Bar-Ilan-search would not even consider. For example, people posted about Guf Naki, about Aino Metzuveh veOseh, about Michal bas Shaul. These sources just pop up when researching the topic. But did they even consider, let alone deal with, the issue that it is a sectarian practice (of Conservative Jewry), such that its adoption might be forbidden as a yehareg va'al yaavor? No, because they don't know enough to know what far-flung halachic aspect might come and transform the whole shayla. Rabbi Zev Farber (who has a unique definition of belief in Torah miSinai) wrote an erudite article about tefillin and clean bodies (and see part two). His daughter, Eden Farber, wears tefillin, and writes how she was introduced to wearing tefillin by "[a] Conservative rabbinical student and a girl [her] age who identified as traditional-egalitarian."

Rabbi Josh Yuter posted Rav Schachter's letter on his website and after a brief critique of it on Facebook, elaborated in a lengthy blogpost.

I have neither the time nor erudition to properly respond. But I guess I am motivated to respond because I consider myself a talmid of Rav Schachter (though I don't know if he would consider me so); and because I feel he has, many times, been unfairly judged.

So, a few points in response.

1) While Rabbi Yuter posted Rav Schachter's letter in Hebrew, he did not translate it. It is a strong letter when read in full, in context. But I think that many of his readers will not read it, or understand it, in Hebrew. And they won't see how the points flow together. They will see the points Rabbi Yuter summarized or excerpted, but I am not so sure that that is a fair representation of Rav Schachter's position.

This may be my own hangup. In most of my posts, I present sources (on parsha), translate them to make them more accessible, and then respond to them, agreeing or disagreeing. But the first thing to do is to present it and translate.

2) This is a long-standing objection that Rabbi Yuter has to Rav Schachter and his positions, not confined to this one area. And in those cases as well, I feel that Rav Shachter has over been misconstrued and taken out of context.

3) So let us see excerpts from Rabbi Yuter's post. (But read it in full -- it is accessible in English):

My previous post publicized a recent letter (PDF) authored by Rabbi Hershel Schachter of Yeshiva University. At the time of posting I did not have time for a thorough analysis, but several people took offense at my initial glib reactions on social media, calling it various forms of “disrespectful” or “not nice.” While I found these responses to be somewhat ironic given that R. Schachter himself used his letter to delegitimize those with whom he disagrees by comparing them to Korach and stating that they violate yehareg ve’al ya’avor, the rebuke is nevertheless well taken. 

Rav Schachter compared them to Korach in terms of the egalitarian motivation, as well as in the belief that anyone is equally qualified to render pesak. Stating yehareg ve'al yaavor was a halachic concern, even in cases where the act is one of chumra.

ודבר פשוט הוא שכמו שהקפידו חכמי המסורה שלא להרשות לנהוג אפילו כחומרת הצדוקים, והקפידו בדוקא לטמא את הכהן השורף את הפרה ולהטבילו, כדי שתעשה הפרה בדוקא ע“י טבולי יום, כן בנד“ד ממש, דפסקי הלכה אינם נאמרים “מתוך חלל ריק“, אלא מתוך ההקשר (קאנטעקס“ט)של אותו הדור, ובדורנו אנו, כל התנאים וכל הראשונים וכלהאחרונים יסכימו שהנהגה זו אסורה היא בהחלט, אע“פ שהיא לחומרא יתירה, שלא לחקות את המינים, עי‘ משנה סוף פ“ב דחולין (דף מא.).

ונראה דד“ז הוא בבחינת ערקתא דמסאנא, דרבנו ז“ל אמר שערקתא דמסאנא גדרו- כל הנהגה שהיא שהפכה להיות סמל להריסת הדת, אפילו אם “ע“פ הלכה” היא מותרת, זה גופא (שנהפך לסמל להריסת הדת), גורם לכך שיהי אסור. וכך התבטא רבנו בשעתו (בקשר לפרשת “מי הוא יהודי” שפתח בן-גוריון), דאין הבדל בדבר בין אם האנס הוא נכרי כאנטיוכס הרשע או יהודי כבן-גוריון, עדיין דין אותה הנהגה כערקתא דמסאנא ויהרג ואל יעבור. (וביטוי זה לענין אנס יהודי, מקורו בשו“ת אבנ“ז או“ח סי‘ תקל“ז, ועי‘ ס‘ נפש הרב עמ‘ רל“ג.)

 וכזה ידוע בשם רבנו, שכשהתחילו הקונסרבטיבים להכניס טקס בת מצוה לבנות באמצע התפילה- דוגמת הבר מצוה לבנים, הצהיר בזה רבנו שהרבנים האורטודוקסים אסורים בהחלט לעשות כמותם, שזה בבחינת ערקתא דמסאנא, ודינו שיהרג ואל יעבור.

You want to take offense at it and say it is "delegitimizing"? No, it is a real part of the halachic discussion, whether or not you ultimately agree with it. And it is a real point that those discussing it did not seem even aware of its existence or relevance.

How about this?

Thanks to the resources mentioned, today’s Jewish community has unprecedented access to traditional sources. R. Schachter somehow distinguishes between “researching” a difficult topic and being intuitively knowledgeable of all the relevant factors. Indeed, R. Schachter argues that even though one reads the sources one does not truly know them. Thus people who assume that they too can read Jewish texts and make up their own minds are following in the tradition of Korach. R. Harcsztark committed the cardinal sin of not acknowledging and submitting to his superiors since “he did not seek guidance from the great halakhic decisors of today.”

Yes, I would agree, even though "somehow" was thrown in to question it.

There is a difference in kind between one who recently arrived at a shallow knowledge of a sugya and one who has grappled with it, in depth, and also grappled with thousands of other sugyos in similar fashion. Shmuel said: "The paths of heaven are as clear to me as the pathways of Nehardea." For someone for whom the currents of the Sea of Talmud are clear to him -- the types of analyses that he can come up with are different in kind than one who superficially conducts research.

But this is impossible to explain, especially people who are proponents of the "research" approach. They don't understand what it is that they could be missing.

And there are certainly tiers of Talmidei Chachamim. This is not "Daas Torah" but simple obvious fact.

I don't know what Rabbi Harcsztark did or did not do. (As I've written in the past, I've heard it was a complicated situation, so I don't want to judge.) But I think it is a valid point that (a) this is not a trivial matter that should be treated by research in the same way as whether to say Tachanun on a certain day; (b) whether or not he ultimately listened to such advice, it is good to at the very least seek guidance from those who may well know better.

When R. Schachter quotes R. Moshe Isserles O.C. 38:3 who rules that we prevent women from putting on Tefillin, he does so assuming that the Ramo is the final definitive word on all practice... Furthermore, someone who has access to a Bar Ilan CD (and know for what to look) can easily find examples where the current Ashenazi practice does not follow the Ramo, such as wearing tefillin on Hol Hamoed (O.C. 31:2).

Really? Is Rav Schachter an am ha'aretz, that he believes that the Rama is the final definitive word on all Ashkenazi practice? Rav Schachter is a posek, knows halacha, and certainly knows places where we don't pasken like the Rama!

Here is what Rav Schachter wrote, which Rabbi Yuter incorrectly summarizes and attacks:

ותמיה אני, מעיקרא מאי קסברי המתירים בזה, הלא כבר הביא הרמ“א (לאו“ח סי‘ ל“ח ס“ג)מהראשונים, ואין חולק עליו מכל מפרשי השו“ע שם, שבזמננו יש לכולנו בעיא של גוף נקי, אשר על כן החלטנו למעט בהנחת התפילין אף לגבר ים עד המינימום(כלומר רק בשעת תפילת שחרית), כאשר ביאר בזה רבנו ז“ל בשיעוריו בטוב טעם ודעת, (עי‘ מש“כ בס‘ מפניני הרב, ערך תפילין, אות א), וכאשר כן פסק רבנו ז“ל למעשה בשעתו בנדון בעלת תשובה שהיתה תלמידה בבי“ס התיכונית על שם “פריש“, שרצתה בדוקא להניח תפילין, והורה רבנו עפ“י דברי הרמ“א האלו למחות בידה. ואין נראה לומר שבמשך ארבעים השנה האחרונות שהשתפר המצב ביחס לטוהר המחשבה הנצרך להנחת תפילין, וכידוע לכל, ככה היתה ההנהגה המקובלת מדורי דורות, ומי הוא זה שיהיו ויתחצף להורות נגד פסק המקובל של רבינו הרמ“א. 

"And I am astonished, foremost what those permitting are thinking. Did not the Rama already bring down from the Rishonim, and there is no one who argues upon him from all the commentators of the Shulchan Aruch there, that there is in our days a problem of guf naki... So was the accepted practice from many generations, and who is the one who will presumptuously rule against the accepted pesak of Rabbenu the Rama."

Rav Schachter clearly says that it is possible for the commentators of the Shulchan Aruch to argue with the Rama. And practice might then follow those commentators. Just in this case they haven't.

There a huge difference between "The Ramo is [always] the final definitive rule on all practice" and that in this case, no commentator disagreed, such that this was the accepted pesak of the Rama.

I am out of time, and so I'll end here.