Music During the Omer? A Model Modern Orthodox Responsum

by Rabbi Aryeh Klapper

Dear Rabbi Klapper,

What are your thoughts listening to live music during the Omer?  I know that different people do different things regarding this.

Thanks!

Jack Smith

 

Dear Jack,

Thank you for your question!  Every halakhic question is vitally important in and of itself, but your formulation properly raises a really “big” and broad issue: How should an individual Jew in America today (or Israel, but that deserves separate treatment) decide or discover what their minhag is on issues where multiple legitimate minhagim exist?

A good first step is to study about the existing options.  For an excellent survey of halakhic positions regarding “mourning”, I encourage you to read the essay by Rabbi David Brofsky here.  A very different and valuable presentation is by Rabbi Eliezer Melamed here.  (It may be instructive to compare the breadth and depth of each to the presentations that come up first on Google.)  I won’t try to duplicate their work here, and to some extent will rely on them.  Rather, I will try to frame the discussion in a way that empowers you to make informed and meaningful choices, and look forward to further correspondence.

Mourning is the secondary halakhah of the omer period.  The primary halakhah is the Biblical mitzvah of counting the omer.  This mitzvah connects the barley and wheat harvests, the pilgrimage holidays of Pesach and Shavuot, and marks the period between the Exodus and the Revelation at Sinai.  The counting seems intended to create throughout an atmosphere of excitement, celebration, and anticipation that is wholly incompatible with mourning.  Even without the Beit Hamikdash, and therefore without the mitzvot of sacrifices and pilgrimages, it seems inappropriate to be mourning while on the way to Sinai.

The Omer period begins with Chol HaMoed and the last Yom Tov of Pesach, which override any mourning restrictions.  The rest of Nisan is a period in which certain forms of public mourning, such as eulogies, are forbidden.  If mourning begins on day 1, the first sixteen days are our “Vulcan” period, in which the restrictions of Pesach, Nisan and the Omer combine to forbid both happiness and sadness. It seems that we are required to be purely rational and emotionless, at least in public.  But that doesn’t seem realistic or healthy, and one needs to think about how to handle situations in which, for example, insisting on the absence of music would constitute obvious mourning.  Then Yom HaAtzmaut comes only five days later (or six; another issue deserving separate treatment)!  At the other end, the 3 Days of Hagbalah immediately preceding Shavuot, which commemorate our preparation for Revelation, are also clearly a time of joy.  The New Moons of Sivan and Iyyar also fall within the Omer period.  So how can we mourn?

Yet there is no denying that just about every pre-20th century community observed an Omer mourning custom of 32 or 33 days,  starting either from Omer day 1 (=16 Nissan) or else on 1 or 2 Iyyar.  These customs are generally connected to the report that vast numbers of Rabbi Akiva’s students died during the first 32 or 33 days (as the result of interpersonal misbehavior, the Bar Kochba revolt, or both). The regnant explanation of the later starting dates (1 or 2 Iyyar) is that the mourning period was shifted in some parts of Ashkenaz in order to commemorate the Jewish victims of the Crusades, which reached Ashkenaz in Iyyar.  But why move the dates, rather than just extending them?    I wonder if it was an excuse to leave at least Nissan’s happiness unblemished.

The shifting of the dates yields a very odd halakhic result.  A doubtful custom cannot overcome a certain prohibition (and there is room to question the power of a definite custom as well).  Because there are divergent customs with regard to all dates except Iyyar 2-4 and 6–18, and the vast majority of American Jews do not belong to geographic communities bound by a particular custom, a good formal halakhic argument could be constructed to forbid mourning on many or all the other dates.  Instead, the standard halakhah in practice has been that at least those who identify as generic Ashkenazim may adopt any of the preexisting customs as to dates, and even to change their custom from year to year without hatarat nedarim.  One should ideally develop a consistent practice over time, and strive for consistency within any given year; but there is much space for accommodating the needs of friends who have different minhagim, e.g. friends’ celebrations or roommates who listen to music.  And speaking of music . . .

There are two basic frameworks for Omer mourning

1)  Simchat m’reut – essentially, parties.  In this framework there is no issue with live music per se, only with the atmosphere often generated by live music.  So for example chamber music concerts in a concert hall, when you’re not allowed to talk, would be fine (but receptions before and after would not be, even if there were no music).  Conversely, a party with dancing to recorded music would be forbidden.  Generally any combination of alcohol and music would be forbidden.

2)  Specific customs – Obviously there can be no minhag going back more than a century about recorded music.  Various practices have developed as to whether and how to extend a prior minhag about live music.

These options may reflect two radically divergent approaches to religious expression generally.

The first approach, which was championed (at least in this case) by Rav Yosef Dov Soloveitchik, contends that formal halakhah should set the pattern for all religious behavior.  Ritual creativity is inherently suspect as a potential violation of bal tosif (adding to the Torah) or as an imposition of subjective desire onto objective obligation.

By contrast, Rav Ovadiah Yosef sees popular intuition as a valuable guide to balancing conflicting religious emotions and spiritual sensibilities.  The omer period is legitimately a time of both mourning and celebration.  I contend that this balance is and should be affected by the establishment of the State of Israel and the development of Yom HaAtzmaut, Yom Yerushalayim, Yom HaZikaron, and Yom HaShoah.

If your friends and religious peers do not have a clear practice regarding dates and/or music, and a broadly respected local halakhic authority hasn’t taken a firm stand, and you haven’t been clear about your approach in previous years, there’s a great deal of room for personal choices, but one should have in mind “beli neder” if you want to be able to switch again next year.

I think you should aspire to adopt consistent frameworks for making those choices.

How do you balance the advantages and risks of giving halakhic force to popular spiritual intuition?  Do you see halakhah as a stabilizing force, a kind of spiritual insurance, that enables risk-taking?  As a potentially stultifying and homogenizing force that must be balanced by creativity?  As the best or sole method of turning self-satisfying human actions into service of G-d?

What role does music, recorded or live play in your life and the life of the communities?  Is it an essential and constant background that accompanies all emotions, or limited to celebratory contexts?  Does its periodic conscious absence enable you to focus on religious ideas and contexts that you might otherwise give short shrift to?  Does it make you more susceptible to dwelling unconstructively on negative emotions?  Bear in mind that a powerful halakhic argument can be made that music should always be forbidden while we have no Beit haMikdash, but is nonetheless permitted as a concession to our emotional and religious psychology.

How do you balance the “background” religious emotions generated by the ongoing state of the world and condition of the Jewish people?  Should that balance be different in Israel and the United States?

While you grapple with these questions, I suggest that the default American Modern Orthodox framework is that one should not listen to live music in any context from after Pesach through day 32 (other mourning practices may continue through day 33 for those who identify as Sefardim), excluding Yom Ha’atzmaut, but that listening to recorded music is generally permitted.

Bivrakhah,

Aryeh Klapper

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Ruling Desire and Desiring Rules

This week’s alumni Dvar Torah is by Betsy Morgan

On Shabbat Chol ha’Moed it is customary to read Shir ha’Shirim, a megillah of blooming flowers and blossoming love between two lovers. The are they/aren’t they protagonists are understood to represent God and the Jewish people. Throughout the megillah their metaphors and similes of passion never culminate in a final moment. Indeed, it ends with the Dod running away again.

What is the story of love meant to teach us about our relationship with God? The dialogue is limited to exchanges of compliments, but no conversation. Is this an ideal relationship? The most salient features of the megillah are passion and appreciation, but the megillah also serves an additional purpose in teaching about equality.

The presence of desire in a relationship creates an opportunity for unequal power dynamic. This is first expressed in the Torah in the aftermath of eating from the tree of knowledge. A punishment of Chava is “וְאֶל-אִישֵׁךְ, תְּשׁוּקָתֵךְ, וְהוּא, יִמְשָׁל-בָּךְ”, that she will desire her husband, and he will rule her. Her desire creates a vulnerability that results in an imbalanced relationship. In this archetypical relationship in the Torah, there is a strain of closeness and distance, desire and inequality.

This idea appears again in Bereshit in the aftermath of Kayin killing his brother Hevel. God tells Kayin in regards to sin “הֲלוֹא אִם-תֵּיטִיב, שְׂאֵת, וְאִם לֹא תֵיטִיב, לַפֶּתַח חַטָּאת רֹבֵץ; וְאֵלֶיךָ, תְּשׁוּקָתוֹ, וְאַתָּה תִּמְשָׁל-בּוֹ”, is it not so that if you are good you will overcome it, because sin is crouching at your doorstep, it desires you and you rule over it. Like a virus needs a host, sin desires the sinner, and thus Kayin can rule over it.

The final time this language is used in Tanach is in Shir ha’Shirim “אֲנִי לְדוֹדִי, וְעָלַי תְּשׁוּקָתוֹ”, I am to my beloved and he desires me. Here is a reversal from Bereshit. First, a person is speaking, whereas God was the speaker of both instances in Bereshit. The affected parties are the active ones, aware of their situation and standing. Second, in Shir ha’Shirim, the man desires the woman, the opposite from Chava and Adam. We would expect that this would make him the vulnerable party, at the woman’s mercy to rule over him. However, she is declaring herself to him, making herself equally vulnerable to him. Using her power, she abolishes the power imbalance. They are equal.

Tracing this concept of desire and power gives Shir ha’Shirim a culmination of a larger story, showing how two entities can be vulnerable and equal. God desires us to be His people, as evidenced in the Exodus story from Egypt and throughout our journey in the desert. At Har Sinai we are declared His nation and are sustained in the desert until delivered to Israel. We desire God to be our God, and demonstrate this through the fulfillment of mitzvot and learning His Torah. Pesach is a time when we review the roots of our relationship with God, and renew it by teaching our history to our families at the Seder. The story in Shir ha’Shirim never really ends, because we are still playing the parts in this relationship through the choices we make every day.

Betsy Morgan (SBM 2013, 2014) is a Junior at Drexel University studying Materials Science and Engineering. She is currently serving as the Gabbai for Drexel’s Orthodox Minyan Group and as a Campus Fellow for the Jewish Institute for Ideas and Ideals.

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CMTL Pesach Reader, 2017 Edition

Check out the 2017 edition of the CMTL Pesach Reader for Divrei Torah about Pesach from Rabbi Klapper and CMTL alumni!

http://www.torahleadership.org/categories/pesachreader2017.pdf

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הא לחמא עניא (from the Aryeh Klapper Haggadah, in progress)

  • הא לחמא עניא דאכלו אבהתנא בארעא דמצרים.

    כל דכפין – ייתי וייכול;        כל דצריך – ייתי ויפסח.

    השתא – הכא;                                         לשנה הבאה – בארעא דישראל.

    השתא –  עבדי;                                                                           לשנה הבאה – בני חורין.

    This is the bread of poverty that was eaten by our ancestors in the land of Mitzrayim
    Anyone hungry – let them come and eat!  Anyone in need – let them come eat a Pesach!
         This year – here;                                                        The coming year – in the land of Israel!
    This year – slaves;                                                                            The coming year – free people!

    In the United States, we generally recite this paragraph ritually in a locked house or apartment, or a wellguarded resort complex, where the poor – unless previously invited – could not possible hear us. This seems too ironic for words. But it is also true that we live in environments where the desperately and publicly poor are rarely known to us personally, and so reasonable concerns of safety and privacy make the idealistic framework set out here uncomfortable and likely unwise. Can we nonetheless make sense of it? Let us begin by recognizing that the paragraph is structured chronologically – we start in Mitzrayim at the point of the Exodus (“This is the bread our ancestors ate in the Land of Mitzrayim”), move to Israel during the Temple period (““Anyone in need – let him come eat a Pesach”), acknowledge contemporary reality, and finally express our hopes for the future. Our scripted invitation to the needy is a deliberate flashback to the Temple period, when all Israel was camped out in Jerusalem, and the “haves” provided for those who could not afford their own lamb for the Pesach sacrifice. It is not intended as a direct critique of Diaspora practice. Nonetheless, surely one purpose of the Pesach sacrifice was to create a circumstance in which each Jew of means had direct responsibility for the poor. Can we maintain the spirit of the law when the letter remains sadly out of reach? I don’t think the solution is necessarily open-air barbecue seders in public parks. Chazal (Bava Batra 7b) recognize a legitimate tension between the right to privacy and the obligation to remain accessible to the poor. Residents of a courtyard may legally compel each other to pay for the construction of a gatehouse; yet Elijah the prophet stopped visiting one chasid’s courtyard once a gatehouse was built, in protest against his exclusion of the poor. The proper balance between these values depends on social and individual circumstances. In a perfect world, no one responds to the last-minute Pesach invitation, because all the poor have already been provided for. We can recline in the privacy and freedom of our houses and hotels without guilt, but only if we have done our part in advance to ensure that the poor have the wherewithal to make their own sedarim.

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Rav Soloveitchik on Semikhah

by Rabbi Aryeh Klapper

INTRODUCTION

This essay is devoted to a purely conceptual “Brisker” account of the Rav’s analysis, in many contexts, of classical semikhah and eligibility for the same.  If this analysis survives critique, a subsequent essay will place it in the context of a central theme of the Rav’s philosophic work.  If that analysis as well emerges recognizably from critique, a third and last essay will draw tentative but concrete implications for contemporary practice with regard to eligibility for semikhah, and humbly submit them for critique.

No attempt will be made in this essay to evaluate the Rav’s work, only to present it.  The practical weight of any implications derived from this analysis will depend on the general weight one assigns to the Rav’s opinions in determining individual or communal practice, and/or on evaluation of the argument on its merits as a reading of the tradition.

I have followed the approach of many of the Rav’s direct talmidim in writing the Rav’s material directly, rather than citing him in the third person.  Any content that I believe to be my own is specifically marked {ADK}.  There may be places where I have misunderstood the Rav or made an argument that seems necessary for his thesis but which he himself never made.  Readers are encouraged to check my analysis against the available evidence of his positions, to which I have tried to provide fairly comprehensive access in the endnotes.  Readers who wish to study the Rav’s directly relevant positions in advance of my presentation are directed to

“קביעת מועדים על פי הראיה ועל פי החשבון”, in קובץ חידושי תורה

“בענין תקנת משה”, in שיעורים לזכר אבא מרי ז”ל כרך ב

“קונטרס הסמיכה” in ארץ הצבי

רשימות שיעורים to נדרים ח:, שבועות ל., שבועות לא.,  בבא קמא טו., בבא קמא פד:׳

The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“Semichah of Yehoshua” in The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“הערות בריש מסכת אבות”, in בית יצחק כרך כב עמוד סד

 

 

The rest of the article can be found here.

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Tangents and Main Points

by Rabbi Aryeh Klapper

Students in my Talmud classes are often asked to recall ‘how we got here from there’, meaning how we meandered from the alleged base text or main topic of a session to the fascinating but apparently wholly disconnected conversation we are in.  My class thereby models the text, as the Talmud is constructed associatively; and the tangents are often the true main point of the class, and of Talmudic sugyot).

For this to work, the students must not notice when their train leaves the rails and begins to roam the intellectual countryside, or to mix metaphors:  like Wile E. Coyote, if they look down too soon and notice that they’ve gone off a cliff, they never make it to the other side.

This is a difficult trick to pull off in writing, where language is the only tool that can keep the reader from awareness.  One strategy is to do a reverse Hansel and Gretel, sprinkling candy crumbs on the ground behind you in hopes that the reader will follow and keep picking them up until their original trail is lost.  But it is a trick often necessary when writing a dvar Torah on the early parshiyot of Vayikra, which are rarely directly meaningful to contemporary readers.  Here is one attempt.

Vayikra 7:24 states:

But the organ-fat of a neveilah (an animal that has died of a cause other than kosher shechitah)

or the organ-fat of a tereifah (an animal that was halakhically dying before its shechitah)

may be used for every task, but you surely must not eat it.

Rashi comments:

“may be used for every task” – This came and taught about organ-fat that it does not acquire the tum’ah of the neveilah from which it is taken.

But what does the acquisition of tum’at neveilah have to do with suitability for all tasks?  Rashi here is silent, but “the words of Torah are often poor in one place but rich in another”.  Rashi’s source is a dispute between Rabbi Akiva and Rabbi Yose the Gallilean on Talmud Pesachim 23a:

“may be used for every task” – 

What does Scripture teach by writing “for every task”?

You might have thought that it would be permitted for tasks of the Above, but prohibited for mundane tasks –so Scripture writes “for every task”.

This is the opinion of Rabbi Yose the Gallilean.

But Rabbi Akiva says:

You might have thought that it would be permitted for mundane tasks, but prohibited for tasks of the Above– so Scripture writes “for every task”.

What “tasks of the Above” is organ-fat suitable for?

Rashi comments (on the position of Rabbi Yose the Gallilean) that it is useful to prepare hides for Temple maintenance.

Rabbi Pinchas HaLevi (Poland/Germany, d. 1805) in his Panim Yafot argues that Rabbi Akiva reads the word every as permitting one to bring hides that have been prepared with such fats into the Courtyard of the Temple.  This presumes that one may not bring other parts of a neveilah into the Courtyard owing to their tum’ah, and that, happily, turns out to be the position of Rabbi Akiva in Mishnah Eruvin Chapter 10.

If a dead sheretz (rodent? reptile? which carries the same degree of tum’ah as a neveilah)

was found in the Temple (on Shabbat, when the muktzah prohibition prevents direct manual removal) – a priest removes it with his belt (even though the belt acquires tum’ah thereby), so as not to linger the tum’ah,

according to Rabbi Yochanan ben Beroka;

Rabbi Yehudah says:

With a wooden stick (that does not acquire tum’ah), so as not to increase the tum’ah.

From what places in the Temple must it be removed (even on Shabbat)?

From the Sanctuary and the Hall and between the Hall and the Altar,

according to Rabbi Shimon Dwarfson;

But Rabbi Akiva said: 

From the places where one would be liable for karet if one brought a dead sheretz there deliberately, or a chatat sacrifice if one brought a dead sheretz there accidentally – 

from those places one must remove it; 

but all remaining places – we cover it with a container.

Now why would Rabbi Akiva hold that one should not remove a dead sheretz from all parts of the Temple, when there is a Biblical violation against bringing tum’ah into the Temple?  Eruvin 104a suggests that Rabbi Akiva agrees with a seemingly paradoxical position later stated explicitly by Rabbi Tovi bar Kisna in the name of Shmuel:

Said Rabbi Tovi bar Kisna in the name of Shmuel:

One who brings in (to the Temple) something that has the same tum’ah as a dead sheretz – is liable, but (one who brings in) a dead sheretz – is exempt.

Rabbi Tovi bar Kisna’s position is derived from Numbers 5:3, which explicitly requires sending certain human beings who have acquired tum’ah in certain ways out of the desert camp, and is understood as applying to the Temple afterward.

Scripture writes: “Whether male or female, you must send away” –

This applies to all those who can become tahor via immersion

But excludes a dead sheretz which cannot become tahor via immersion

Thus Rabbi Akiva can hold that there is no prohibition against bringing a dead sheretz in, and therefore no obligation to bring it out, and therefore one should not violate the muktzah prohibition to remove it.

But this actually proves too much – even Rabbi Akiva holds that one must remove a dead sheretz from the Sanctuary and the Hall on Shabbat.  If there is no prohibition against bringing one in, why should one violate muktzah to remove it?

Rashi explains:

he holds that one who brings a dead sheretz into the Temple is exempt –

Meaning there is no Biblical obligation to ‘send it out’,

and therefore the Rabbinic muktzah prohibition is not pushed aside to remove it.

But from the Sanctuary and the Hall we do remove it,

as the Sages did not make their words stand in the way of the Honor of the Divine Presence

The last line of Rashi is fascinating.  On Berakhot 19, the Talmud has a long discussion as to whether, or under what circumstances, human dignity overrides what would otherwise be the Halakhah.  This question is initially presented as dependent on the relative value of human and Divine dignity.  In the course of the discussion, we learn that human dignity presumptively overrides all Rabbinic legislation.  Rashi here extends that principle to Divine dignity as well.  On what basis does he do this?

I suggest the following.  On reflection, it should be clear that the Talmud actually presented a false choice.  The real question is not whether human dignity overrides Divine law, but rather the place of human dignity within Divine law – and if G-d mandates concern for human dignity, doing so cannot violate His dignity.  The conclusion that human dignity sometimes trumps even Biblical-level law in no way contradicts this.  Therefore, Rashi reasons, the premise that Divine dignity trumps human dignity stands, and therefore, if human dignity trumps Rabbinic law, so must Divine dignity.

But Rashi makes a further leap.  In Berakhot, Divine dignity is manifested in human obedience.  Here, Divine dignity is implicated in human aesthetics – no human being of consequence would tolerate dead animals in their home, so it violates His dignity for one to be left where His presence dwells.  By bringing His presence down to human beings – by investing the Mishkan – G-d therefore makes His dignity vulnerable in new ways – not only to human free will, but to the chances of mortality, human and animal.  Perhaps it makes sense, then, that the Temple is so hedged about with commandments – in recognition of G-d’s willingness to risk His dignity so as to dwell among us, we assign ourselves the task of magnifying His dignity to the extent possible through our obedience.

Shabbat Shalom

This Dvar Torah is a rewrite of a Dvar Torah published in 2014.

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Parshas Tzav/Shabbos HaGadol — Precious Preparations

This week’s alumni Dvar Torah is by Alex Zaloum

At the beginning of this week’s parsha, we read:

“The Kohen shall don his fitted linen Tunic, and he shall don linen Michnasaim on his flesh; he shall raise the ashes which the fire will consume of the olah-offering on the Altar, and place it next to the Altar. He shall remove his garments and he shall wear other garments, and he shall remove the ashes to the outside of the camp, to a pure place” (Shemos 6:3-4).

Rashi gives a parable for why the kohen is instructed to wear a different set of clothes to remove the ashes from the Temple: “…[G]arments in which he cooked a pot for his master he should not pour in them a cup of wine for his master…”

One difference between cooking a pot of food and pouring a cup of wine is that that former is typically not done in the presence of the master, while the latter typically is. This difference is clearly borne out, as in haramas hadeshen (raising the ashes) the ash was placed “by the Altar” and in hotza’as hadeshen (removing the ashes) the ash was “removed outside the camp in a pure place.”

Another difference is that whereas pouring wine is a service in and of itself, cooking is merely a preparation for serving the master. So too, whereas haramas hadeshen is a mitzvah itself, hotza’as hadeshen is merely to ensure the Altar is cleared for further use (as Rashi to 6:4 indicates: “this is not a daily duty, but the raising of the ashes is a daily duty”).

But there is a third distinction: typically the servant who cooks is not the same servant who pours the wine. In fact, according to the opinion of Rabbi Eliezer, these two tasks were indeed performed by separate kohanim (see Yoma 23b).

From Rashi’s commentary, however, it is clear that he holds that the same kohen performed both the raising and removing of the ashes. If Rashi had Talmudic precedence for an interpretation that would better fit his parable, why did he choose the interpretation that both tasks were performed by a single kohen?

Perhaps Rashi is implicitly teaching a lesson for us all (not just a lesson for kohanim, but for every Jew, as we read in parshas Yisro 19:6: “and you will be unto Me a nation of priests, and a holy people.”):

In our service of Hashem, much of our time is spent preparing: walking to shul, cooking for Shabbos, acquiring a lulav and esrog, etc. For us, there is an obvious spiritual advantage in the mitzvah itself compared to the preparatory acts that precede it, as when we do a mitzvah we connect directly with Hashem in a revealed way. But from Hashem’s perspective, the preparatory acts of a mitzvah and the mitzvah itself are equally important. As the preparation is a necessary component to the fulfillment of the mitzvah, they are both part of Hashem’s will.

Therefore, although the kohen must change clothes to ensure the priestly garb does not get filthy while removing the ashes, it is the same kohen who is worthy of performing the mitzvah of raising the ash to the side of the Altar as the one who is charged with the menial task of removing the ash from the Temple courtyard.

This is a timely lesson as we are prepare our homes (and ourselves) for Pesach.

Although technically the mitzvah to destroy chametz is only on the 14th of Nissan, if in the weeks prior to Pesach we do not take the time to make the proper preparations, then we will not be able to enter Pesach chametz-free.

So when we don our smocks to rid the house of chametz, we must know that although from our perspective the Seder is the moment of most evident spiritual connection, from Hashem’s point of view, sweeping behind the cabinet is just as precious as eating the afikomen.

May we all have much success in our Pesach preparations, and a kasher and freilichen Pesach!

 

Originally from Arlington, VA, Alex Zaloum (WBM 2016) graduated from Harvard College last spring and is currently pursuing semicha at the Rabbinical College of America in Morristown, NJ.

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