Volume 51 Number 68
                    Produced: Tue Mar 21  5:04:47 EST 2006

Subjects Discussed In This Issue: 

Counting Mechalel Shabbos for Minyan/Kitzur not Halacha (3)
         [Chana Luntz, Chana Luntz, Ira L. Jacobson]


From: Chana Luntz <Chana@...>
Date: Fri, 17 Mar 2006 17:52:18 +0000
Subject: Counting Mechalel Shabbos for Minyan/Kitzur not Halacha

Quoting Ira El Jay <iraeljay@...>:
> > At 17:13 13/03/2006 +0000, Chana Luntz stated:

>>Rav Moshe's famous teshuva allowing the counting of a mechalel shabbas
>>b'farhesia [public sabbath desecrator] in Iggeros Moshe Chelek aleph
>>siman 23

>My understanding of this pesaq, is that IN A SH`AT DEHAQ (say, it is
>snowing and some of the regular people don't show up, and we wonder
>whether to call in a passerby), we may count a nonobservant Jew in
>order to say qaddish, barekhu and qedusha, but NOT to have the event
>regarded as tefilla betzibbur.  This distinction is perhaps of great

The question that was asked of Rav Moshe was whether a mechalel shabbas
b'farhesia could be included in the minyan b' shas hadchak and his
answer was that you could.

>>as well as the follow on teshuva in Iggeros Moshe Orech Chaim chelek
>>gimmel, siman 14.

>The follow-on does not seen to add anything applicable to our discussion.

One of the reasons that IMHO the follow-on teshuva does indeed add something,
is that, it seems to me, it rebuts your premise, above, that counting a 
mechalel shabbas befarhesia *vis a vis the saying of quadish, kedusha and 
barachu* is in fact only b'shas hadchak.  His point is that the very essence
of the concept of minyan is learnt out from the meraglim, the edah ra'ah, so
that the counting of such a person in a minyan it axiomatic.

Think about the place from which Rav Moshe learns all of this - the
requirement to act l'kiddush hashem, which is can be done even before
ten mumerim [heretics].  Nobody is suggesting that if one had one mumar
in the group, one should look around to see whether one should flag down
an additional passerby before acting l'kiddush hashem. Rather (according
to Rav Moshe) the inclusion of a mumar (or ten) is part of what
intrinsically constitutes an eida for kiddush hashem purposes.

The issue of whether the the tephila then has the additional attribute
of a tefila b'zibbur is, to Rav Moshe, something quite separate.

The second reason why in my view the follow-on teshuva is significant
for our discussion is that it seems to suggest that Rav Moshe
understands the sin of the meraglim as being linked to avodah zara -
idol worship.  That has relevance for the reasons I set out below.

>>Most of the aforementioned YU etc rely either on these teshuvas, or
>>some of the other reasoning discussed in that thread (tinok shenishba
>>etc) for the halachic positions stated above.

> Have you seen their reasoning?  Can you bring us a reference?

In order to understand the reasoning, you need to first understand the
reasoning of those who forbid.

As I bring at some length in mail-jewish volume 48 no 37 the original
source of the prohibition is the statement in Chullin 5a.  While that
gemora starts out discussing shechita of people like a mumar [heretic]
for idolatory, it brings its proof text from a braisa that reads as

"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"

This is brought down in the Shulchan Aruch itself in Yoreh Deah siman 2
s'if 5 and is the source of the Mishna Brura in Orech Chaim siman 55
si'if katan 46 who comments on the halacha brought in the Shulchan Aruch
that somebody who does an averah can be counted for a minyan as follows:

"The Pri Megadim writes this is davka for an averah which he did
l'teyavon [because his desires overwhelmed him] but l'hachis [roughly
out of spite - see my more detailed explanation in volume 48 no 37] even
for one matter or a mumar for avodah zara or l'challel shabbas
b'farhesia [violating shabbat publically] his din [status] is like a non
Jew and he is not counted."

Once the reason for those who prohibit is understood, it is easier to
understand the reasoning of those who permit.  I go into this in greater
length in mail-Jewish Vol 48 no 37, but in short, there are various
approaches that I discuss there.  One is that of a tinok shenishba [a
child taken into captivity].  The reasoning is that today it is not that
people violate shabbas because they are denying Hashem (as per
Rashi/Rambam above) - on the contrary given that they turn up to daven
this cannot be the case, but rather they don't keep shabbas because they
were never properly educated (while the original tinok shenishba
argument comes from the Binyan Zion, it has been taken up by numerous
others, see the Kaf HaChaim I quote there, the Chazon Ish etc).

A second and somewhat related argument is that brought by Rav Moshe in a
couple of additional teshuvas, Iggeros Moshe Orech Chaim [chelek 3 siman
12] (in discussing giving aliyos to the Torah for shabbath violators)
and in Iggeros Moshe, Orech Chaim, Chelek aleph, siman 33 (in relation
to shabbath violators giving the Kohanic blessing) that today the reason
Jews violate shabbas is linked to parnasa or other ta'avas (ie he does
not go so far as to say that such people are virtually innocent, which
is the position one comes to if one regards such people as like children
taken into captivity, but rather that they fall into the category of
ordinary, not extraordinary, sinners- ie the kind that can do teshuva
rather than the kind that cannot and as such are no different from
others who sin because their desires overwhelm them) (see mail-jewish
vol 48 no 67, where I discuss the distinction he draws in the second
last paragraph of the latter teshuva between public and private and why
the public nature of the sinning is not applicable today so nobody today
can really be considered a mechalel shabbas *befarhesia*).  I also
mention in mail-jewish vol 48 no 37 a third approach that no evidence of
sins of such gravity (as being mechallel shabbas) can be adduced today
in the proper way (before a beis din), and therefore the law is
theoretical only.

I also spent some considerable time on that thread teasing through
various consequences if you do not adopt the position of the makillim
[those who are lenient in this matter] - such as you can probably never
count a BT in your minyan, never marry one etc - because (as you can see
from the gemora and Rambam quoted above as well as elsewhere) according
to the strict view this is not one of the sins one can ever be deemed to
do teshuva for.  It is one thing to say that a tinok shenishba can be
educated and/or that like for every other regular sin, a sinner can do
teshuva.  But a bone fide mumar and traditional mechalel shabbas
b'farhesia is beyond either of these. Once a person has the status of a
true mechallel shabbas b'farhesia in the traditional and original sense,
we are required to always deem them to be a mechallel shabbas
b'farhesia.  That is why I am not convinced anybody really poskens that
way these days despite the sources to the contrary, because I am yet to
hear of anybody who rejects a bone fide baal teshuva, as we know them
today, for minyan etc.

Chana Luntz

From: Chana Luntz <chana@...>
Date: Sun, 19 Mar 2006 18:32:33 -0000
Subject: RE: Counting Mechalel Shabbos for Minyan/Kitzur not Halacha

Ira Jacobson writes:

> With all due respect to Mrs. Sassoon, I was looking for a statement
> from R' Moshe to the effect that a mehallel shabbat may or may not be
> counted in a minyan for tefilla betzibbur.  I was not looking to
> interpret any hints he may have given, but rather for a pesaq.  The
> one pesaq I have found is Iggerot Moshe, Orah Hayyim (Part I), Siman
> 23, which offers the very limited possibility in sh`at hadehaq only.
> (This is not "my premise," but rather an exact quote from R. Moshe
> Feinstein's pesaq.)
> Does he state otherwise?  Does any other poseq?

This is one of the reasons one cannot learn teshuvas like they were some
sort of dinim, and why one has to understand what it is that was under
discussion - in this case, to understand why it is that those who
prohibit including a mechallel shabbas befarhesia prohibit (based on the
gemora that puts them in the same category as idol worshippers, which
puts them in the same category as non Jews).

The truth is you don't actually need this teshuva to understand that Rav
Moshe permits a mechallel shabbas befarhesia in circumstances where
these were traditionally prohibited.  Ten teshuvas on, in Orech Chaim
chelek aleph siman 33, he has a discussion about permitting a mechallel
shabbas cohen to give the cohanic blessing.  Those who prohibit,
prohibit on the same grounds they prohibit counting in a minyan, and
again Rav Moshe permits, because he holds that today the b'farhesia
aspect is not applicable.  He makes it clear he believes that it would
be better if one got the cohanic blessing from somebody who was shomrei
halacha, but he says l'dina it is permitted.

Then in Orech Chaim chelek gimel siman 12 he discusses giving an aliya
to those who are not shomrei torah, including those who are known to be
mechallel shabbas, and again he permits.  Neither of these are sha'as
hadchak situations.  The reason he feels he needs to write the teshuva
in chelek gimmel siman 12 is because earlier in Orech Chaim chelek beis
siman 50 he had prohibited being yotzei with and answering amen to
blessings of reform and conservative rabbis and hence, inter alia, one
cannot grant them aliyos to the torah, and on that basis he was then
asked how about those who are not shomer shabbas.  And he proceeds to
distinguish modern day mechallelei shabbas from koferim [deniers], which
is the way he characterises the others, and holds that the brochas of
those who are not shomer torah today, including a mechallel shabbas, are
to be regarded as brochas.  Again he says that in order to minimise
machlokus [dispute], one might want to limit such aliyos, but again that
is a different matter - about how best to minimise machlokus.

If you don't understand the basis to prohibit, you would see these as
three (well five really) separate teshuvas - two dealing with minyan,
one dealing with cohanic blessing, and two dealing with brochas/aliyos
to the Torah.

If however you understand that in fact the reason that those who
prohibit counting a mechallel shabbas in a minyan prohibit on the same
basis as those who prohibit a mechallel shabbas giving the cohanic
blessing and a mechallel shabbas having an aliya or one being yotzei
with their brochas, then you will read these teshuvas in conjunction
with one another.  It is very clear from the teshuva in chelek aleph
siman 33 that Rav Moshe understands that to prohibit would be to set his
face against the whole baal teshuva and kiruv movement (because a
mechallel shabbas b'farhesia is deemed never to be able to do teshuva).
He also makes it clear in that teshuva that the position he takes is
"neged daas rabosanu ha'achronim" [against the opinion of our Rabbis the
achronim] - that is not faint hearted stuff. [This by the way is why I
think people are being a bit unfair to the Kitzur Shulchan Aruch on this
point.  He said nothing that was not the common position of people such
as the Mishna Brura and the Aruch HaShulchan - it was the the normative
statement of halacha in those days - and there was only the first
mutterings of alternative psak at that time eg in the Kaf Hachaim - but
then, most of the people who were mechallei shabbas at that time grew up
frum, and had rebelled, and the line taken vis a vis that rebellion was
generally harsh]

But once you do understand the position Rav Moshe takes vis a vis the
mechallelei shabbas b'farhesia today, then it is clear that, according
to Rav Moshe, their brochas are brochas and their tephilla is tephilla.
But the teshuva regarding counting in a minyan brings something else -
an additional, and quite extraordinary chiddush, namely that that the
very essence of minyan is derived from evildoers, and ones who sin was
really the equivalent of idol worship.  That is a step beyond the
discussion of mechallelei shabbas b'farhesia with respect to the cohanic
blessing, and with regard to aliyos to the torah - it separates the
discussion of counting in a minyan for d'varim shebekedusha from the
nature of what is said there - namely tephila, and would seem to allow
you to count even kofrim to your minyan if absolutely necessary, even if
their tephila is no tephila.


From: Ira L. Jacobson <laser@...>
Date: Sun, 19 Mar 2006 21:45:41 +0200
Subject: RE: Counting Mechalel Shabbos for Minyan/Kitzur not Halacha

Once again, with all due respect to Mrs. Sassoon, I do not try to read
the poseq's mind.  I look at his pesaq and understand it in the language
it was written.  I do not try to guess that although he said "gray" he
really meant "white."

R' Moshe was asked a question, and he replied that only in a sh`at
hadehaq can a mehallel shabbat be included, and even then the **thing**
he is being included in is **not** communal prayer.  I accept that pesaq
and do not understand it as meaning the opposite of what it says.

Otherwise, as they say, ein ladavar sof.

IRA L. JACOBSON         


End of Volume 51 Issue 68