Volume 48 Number 37
                    Produced: Fri Jun  3  6:33:52 EDT 2005

Subjects Discussed In This Issue: 

Minyan and the Great Divide
         [Chana Luntz]


From: Chana Luntz <chana@...>
Date: Thu, 2 Jun 2005 22:52:40 +0100
Subject: Minyan and the Great Divide

Bill Bernstein <billbernstein@...> writes inter alia:

 >>Then you write << I do not know whether this is a statement of halacha
 >>l'maaseh or a restatement of the classic sources in Shas and poskim.>>

And IM Fuchs responds:

 >What is the difference between halachah l'maaseh and the classic sources
 >in Shas and Poskim.  What are poskim if not those who teach us halachah

The reason why this is a serious question is that, in my experience, I
am yet to meet a Rav who poskens like the classic sources in Shas and
poskim (although it may be that there are those on this list who do).

In order to understand why, let us go through those classic sources to
understand what the consequences of such a psak are.

To understand the discussion, you need to understand two concepts, one
is a "mumar l'hachis" and the second is a "mumar l'teyavon".  I think
somebody on this list has translated l'hachis as "out of spite", which
does give some of the flavour of it.  It is perhaps easier to understand
the concept of a "mumar l'teyavon" as somebody who acts contrary to
halacha because his desires overwhelm him (eg the bacon smells too good
and he couldn't resist), not because he davka wants to act against the
halacha.  Once this concept is understood, it would seem the easiest way
to understand the concept of a mumar l'hachis is as the opposite,
somebody who acts davka against the halacha and not because his desires
overwhelm him.

Someone on this list cited the Mishna Brura in Orech Chaim siman 55
si'if katan 46:] who commenting on the halacha brought in the Shulchan
Aruch that somebody who does an averah can be counted for a minyan as

"The Pri Megadim . writes this is davka for an averah which he did
l'teyavon but l'hachis even for one matter or a mumar for avodah zara or
l'chillel shabbas b'farhesia [violating shabbat publically] his din
[status] is like a non Jew and he is not counted."

A similar formulation can be found in the Shulchan Aruch itself in Yoreh
Deah siman 2 s'if 5:

"A mumar l'hachis even in respect of only one matter or one who is a
mumar for idolatory or who violates the shabbat publically ... Their din
is like a non Jew".

As can be seen from this, somebody who is a mumar for idolatory or who
violates the shabbat publically even if it is not done l'hachis would
seem to fall within the category of being like a non-Jew.

Now it is from the general formulation that you get to the halachos that
have been quoted on this list and as found in the Mishna Brura.  Because
if somebody's status is like a non Jew, then obviously they a) don't
count for a minyan; b) their shechita is not kosher and c) wine they
touch is forbidden.

However this last might seem to require some further explanation -
because in these days when nobody expects that wine will actually be
offered as a libation to idolatory, the reason for the prohibition on
touching wine vis a vis a non Jew is "mishum bnotechem", ie literally
because of their daughters, or for fear of intermarriage.

Thinking this through however this points to what would seem to be an
obvious consequence from this halacha.  Somebody who falls within this
category is not the sort of person who is eligible for marriage (to the
extent that a gezera that was enacted to prevent intermarriage applies
to them), nor are their brochas a brocha.

The reason why I said above that I did not think most rabbonim poskened
that the non religious today fall within the category of a mechallel
shabbas b'farhesia referred to above, ie that this described a situation
halacha l'ma'ase, is because if indeed the non religious today have the
status of non Jews in all respects, then, for example, no Rabbi should
be officiating at a wedding of such persons regardless of what their
Jewish ancestry may or may not be (in other words, maybe Shinui has a
point, what is the Rabbanut doing getting involved in marriage and
divorce in relation to a whole bunch of people with the status of non

But it gets worse.

The primary gemora upon which the Shulchan Aruch I just quoted to you is
based is found at Chullin 5a.  While that gemora starts out discussing
shechita of people like a mumar for idolatory, it brings its proof text
from a braisa that reads as follows:

"we accept korbanos from the sinners of Israel [poshei yisroel] that
they may do teshuva with the exception of a mumar who offers libations
of wine to idolatory and one who violates shabbas b'farhesia".

In the course of the discussion it is made clear that those who are a
mumar for adolatory and/or violate shabbas b'farhesia fall into the same
category as one who denies the entire Torah.

Obviously this would seem to beg explanation.  That given by Rashi there
in Chullin is that this is because one who offers to idolatory denies
HKBH and one who violates shabbas denies His acts (ie ma'aseh breishis)
so doing such acts constitute a fundamental denial of Hashem.

And similarly the Rambam in hilchos shabbas perek 30 halacha 15 states
"that shabbas is a sign between HKBH and us forever.  Therefore one who
violates other mitzvos they are in the category of the wicked of Israel.
But one who is mechallel shabbas befarhesia behold he is like who
worships idols and both of these are like a non Jew in all respects"

Getting back to the gemora in Chulin, the strong implication from this
reference to the korbanos and teshuva is that one who offers libations
of wine to idolatory or who violates shabbast b'farhesia cannot in fact
do teshuva. And in fact the Rambam poskens in hilchos oved chochavim in
perek 2 halacha 5 that not only one who is a mumar l'oved kochavim is a
non Jew in all respects ( that "we do not receive v'ain mekablin otum
b'teshuva l'olam [we do not ever accept them as repenting].

The Lechem Mishna there on the Rambam questions this Rambam on the
grounds that the Rambam at the end hilchos teshuva perek 3 says that
everyone can do teshuva .  He suggests a resolution to the stira He says
that it is possible to do teshuva for aveiros of this nature, but they
are of such a great magnitude and it is so difficult that anybody who
truly did teshuva for them would die in the process (as we see from
various stories in the gemora where people did sincere teshuva and their
souls left their bodies as a consequence). Hence the point is that *we
do not accept* any person as having done teshuva for such aveiros,
because any person who had really done teshuva for such aveiros would no
longer be alive, and if they are alive they can't have done teshuva.
And the reference in hilchos teshuva is not to what we accept, but what
HKBH accepts - so that yes, HKBH may accept such teshuva but we cannot.

Note that while here the Rambam does not specifically mention one who
violates shabbas b'farhesia, the Kesef Mishna there refers to such
violations in quoting the supporting source for this Rambam (ie the
gemora in Chulin referred to above) and the general common language
makes it clear that this category too would fall within that of ain

Now, I am not aware of any Rav on this planet that holds this as halacha
l'ma'aseh today with regard to today's non religious Jews.  As should be
obvious from what I have described above, if one follows this position,
bang goes the modern chozer b'teshuva movement.  That is, large portions
of this list and just about every minyan and family (even the most
choshuve these days) are made up of people who according the Rambam
cannot have their teshuva accepted, have the status of non-Jews, cannot
be counted in a minyan etc etc.

So... How do we get out of the problem, ie how do we "kvetch" a heter.

There are varied approaches, most of which have been mentioned on this list.

A) Tinuk shenishba: perhaps the most widespread approach is that adopted
by Lubavitch, the Chazon Ish and others that today's non religious Jews
do not fall within the category of the Shulchan Aruch described above,
ie they are not a "mumar l'chillel shabbas b'farhesia" as defined there.
That, they argue requires real knowledge and applies to somebody (eg
like Elisha ben Abuya in the Talmud) who really knew what was at stake
and violated it anyway.  Today's Jews, they argue, are rather in the
category of those captured as infants who do not understand what it is
that they are violating.  This is notwithstanding that they may know
about the concept of 39 shabbas and be knowledgeable in many of the
halachas.  In fact, people like the Kaf HaChaim, who relies on this
approach (see Yoreh Deah siman 119 s'if katan ) argue that it is indeed
only applicable to those who in fact turn up to shul and daven and then
go violate shabbas and it is only those that stay away (although he
excludes from this those that go out in public in their motor cars! who
according to the Kaf Hachaim continue to fall within the category of a
non Jew in all respects.  This view of course can be further explained
by use of the Rashi on the gemora that I cited above, ie that what is
really at stake is about a denial of Hashem's act of ma'aseh Breishis,
and that today's non Jew (even in contrast to those in the time of the
Kaf Hachaim), no matter what they know about shabbas and its halachas,
are certainly not intending that by their acts of driving their car (or
whatever) they are denying the Creation and the Creator of the world nor
do they even really understand the link.

B)Today's mumar l'chillel shabbas b'farhesia is the equivalent of a
mumar l'teyavon as per other aveiros - ie that today the reason Jews
violate shabbas tends to be linked to parnasa or other ta'avas and that
therefore the traditional halachas do not apply.  This appears to be the
position adopted by Rav Moshe Feinstein in Iggeros Moshe Orech Chaim
chelek 3 siman 12 (in discussing giving aliyos to the Torah - note that
Rav Moshe allows the counting of such Jews into a minyan on other
grounds, in Orech Chaim chelek 1 siman 23 - ie on the basis that minyan
is based on the meraglim) This would not seem to be as far reaching an
approach as that described above, but it is still a reading down of the
situation.  The argument that Rav Moshe appears to be advancing
(although it is written rather shorthand and I am reading into it) is
that those Jews today who do believe in HKBH cannot be said to be
denying the actions of HKBH by not keeping shabbas, but rather are doing
it out of their own desire for money or comfort, and hence despite what
seems to be the plain meaning of the text that it does not matter why a
person is violating shabbas, in fact it does indeed matter, and that
only if that person is effectively doing it l'hachis is a problem On
that basis he does allow the calling up of such Jews to the Torah.

C)The mukzak approach: Another approach turns on the "b'farhesia" aspect
of all this.  On this point, many of the classic merforshim
[commentators] already say that in order for there to be a violation
b'farhesia it needs to be in front of 10 Jews (see eg the Kaf Hachaim on
this - and the discussions about whether the person in question counts
as one of the Jews, and whether women count as one of the Jews etc). Now
you can take this slightly further and say that since what we are doing
here is effectively converting this person from a Jew to a non-Jew (ie
making their status like a non Jew) that is in many ways the equivalent
to a non Jew becoming a Jew, and until the testimony is given in front
of beis din and the necessary evidence produced that they did it in
front of 10 frum Jews no conversion in status takes place and therefore
they stay the status of a Jew and can be counted for a minyan etc.  [And
of course, today, no beis din today will sit on this matter, because of
the multiple aveiros of these generations].

But, bottom line: - I do not know of any Rav or shul who refuses to
accept what are today known as "BT" members, marry them etc and yet it
is pretty rare to find somebody who defines themselves in that category
who was not in the past mechallel shabbas b'farhesia in the classic
sense, if you do not rely on one of the positions A-C I have listed

And in my view, the very existence of a widespread chozer b'teshuva
movement would seem, certainly as per the L'Melech Mishna, to prove that
the classic definition of mechallel shabbas b'farhesia does not apply to
today's non religious Jews.  Because, as stated above, the nature of one
who is a a "mumar l'chillel shabbas b'farhesia" given the extent of
denial of HKBH that that is understood to entail means that this is a
person for whom it is either nigh on impossible to do teshuva - and
certainly we could not expect to see a widespread movement (of living
people) who have done such teshuva.  Which leads one rather to the
conclusion that, however you get there, such people are not what the
gemora and classic sources are talking about.

Chana Luntz


End of Volume 48 Issue 37