Counting Sabbath Desecrators in a Minyan

 

Translated and adapted by Rav Eliezer Kwass

  

Question:  Can Jews who do not keep Halakha (defined in classic sources as "mechalelei Shabbat be-farhesia," those who publicly desecrate the Shabbat) be counted towards a minyan?  In other words, if there are only ten Jews, and one or more of them publicly desecrates the Shabbat, is the group considered a minyan and therefore able to say kaddish, kedusha, and barkhu?

 

Answer:  This issue has been discussed extensively in our times.  I believe that we must do whatever possible in order to foster ties between Jews and not to alienate them, God forbid.  Already in a previous generation, the Gaon Mahari Asad wrote (Teshuvot Mahari Asad YD #50):

 

Certainly in our times, when our generation has mostly broken with tradition, they should not be alienated further.  God forbid that they should be pushed away; this will only intensify their lack of belief.  Rather, they should actively be brought close.

 

Based on this, he concludes that in order for Sabbath desecrators to be invalidated (as a witness, for instance), we require that the strictest rules of procedure be followed: there must be proper testimony concerning their non-observance before a rabbinical court where they are present. 

 

     With regard to our issue, even though the Peri Megadim (OC 55) does not permit counting them, as quoted in the Mishna Berura (OC 55:46), it seems that in our times we can rule leniently for the reasons listed below.

 

1. PRIVATE DESECRATION

 

The Shulchan Arukh (OC 385:2) explains that one who desecrates the Shabbat in private is not disqualified from standard Israelite status (with regard to the laws of eruvin), even though he transgresses a biblical law.  What is defined as "private Shabbat desecration?"  The Mishna Berura (385:6) writes that one who is embarrassed to transgress before a "great man" is still defined as a private Shabbat desecrator, even if he is otherwise willing to desecrate the Shabbat before a number of people. 

 

     The source for this definition of private desecration is a passage in Eruvin (69b):

 

A certain man walked in the public domain on Shabbat wearing a spice container (which is forbidden as an act of carrying).  When he saw Rav Yehuda the Prince, he covered it up.  He (Rav Yehuda) said, "Someone like this is still considered [a full-fledged Jew with regard to the laws of Eruvin]."

 

Rashi explains that he is considered to be a who transgresses the Shabbat only privately.  According to this, one who would refrain from transgressing Shabbat only in front of the greatest scholar or leader of the generation (like Rav Yehuda) is not defined as a public transgressor.  Even though the Maharsham (Da'at Torah, YD 2:30) writes that this view is overly innovative, this halakha is quoted authoritatively by the Eliyahu Rabba and the Tosafot Shabbat in their comments on that section of the Shulchan Arukh, as well as by the Chayyei Adam (75:26) and the Tzemach Tzedek (Responsa, EH 259). 

 

     Based on this, it is clear to me that the vast majority of Shabbat desecrators today would be classified only as private desecrators.  One should certainly not assume that a particular person is part of the small minority that is more audacious.  Classification as that kind of a radical Shabbat desecrator would require, as the Mahari Asad asserted, testimony before a court in the person's presence.  See the Teshuvot Peri Ha-sadeh (part 1, #62) and the Teshuvot Avnei Tzedek (YD #60), who rule according to Mahari Asad's opinion.

 

2. UNWILLFUL SIN

 

The Chazon Ish (YD 2:28) writes:

 

There is another condition - that the person's act should be considered willful, not coerced.  As the Rambam said (Hilkhot Mamrim 3:3), "Their (the Karaites') children and students are considered to be coerced and to be like a tinok she-nishba (a child who was taken captive by non-Jews and raised as a non-Jew)."  A tinok she-nishba a) brings a sacrifice (when he begins to live as a Jew) as it says in Tractate Shabbat, Chapter "Klal Gadol;" b) we are commanded to ensure his survival and c) even to desecrate the Shabbat in order to save his life.  Furthermore, the Hagahot Maimoniot (Hilkhot Mamrim 6) writes that a person is not categorized as a rasha unless he transgresses intentionally and refuses to accept rebuke.  At the end of his book "Ahavat Chesed," the Chafetz Chayyim quotes the Mahari Molin's opinion that it is a mitzva to love evil people ("resha'im") for this reason.  It is related in the name of the Maharam Lublin that today, we are always considered "before having given rebuke" because (as the gemara says) we no longer know how to properly and effectively administer rebuke.  Non-observant Jews are therefore considered "anussim" - under extenuating circumstances - and we cannot consider a woman absolved from yibbum (the levirate marriage if the remaining brother is a Shabbat desecrator).  The same holds true for other halakhot (i.e. Sabbath desecrators are always considered full-fledged Jews)." 

 

     This principle, that Shabbat desecrators are nowadays considered anussim, was already enunciated in the writings of Harav Avraham Yitzchak Kook (e.g. Iggerot Re'aya 1:171).  What makes the Chazon Ish's statement innovative is that he explicitly relates to the laws that apply to a "mumar" - one who habitually transgresses. 

 

3. OPPOSITION TO THE PERI MEGADIM

 

It seems to me that the Peri Megadim's view (quoted by the Mishna Berura) that we do not count a public Shabbat transgressor in a minyan, is not a consensus opinion.  The Shulchan Arukh (OC 385:11) writes that "a sinner who goes against a community decree or committed a sin can still be counted towards a minyan if the ban was not executed against him ('lo niduhu')."  The Mishna Berura (385:47) quotes the Magen Gibborim who says that this refers even to one who commits a capital offense.  The prooftext for this is the biblical story of Akhan who, despite having committed a grievous sin (that resulted in the death penalty) was still referred to as a Jew.  The verse says concerning him, "Israel has sinned."  Even though he sinned, he was still referred to as "Israel" and retained the holiness of a Jew.  The Sha'ar Ha-tziun adds that the sin of Akhan included transgressing Shabbat, as Rashi explains in his commentary on the book of Yehoshua. 

 

     The proof from Akhan, however, is not necessarily conclusive.  The Maharshadam (EH #10) writes that Akhan's sin was only disobeying the ban against taking from the booty of Yericho.  Even though the gemara (Sanhedrin 44a) says that "Akhan transgressed all five books of the Torah," Maharshadam believes that this is a lone opinion, or merely an idea attached to a biblical source (an "asmakhta").  And even if Akhan's sin was Shabbat desecration, the Mishna Berura can maintain that it was not done in front of ten people.  Therefore, Akhan retained his full status. 

 

     However, according to Mahari Asad (in the responsum quoted above), even if one does not sin in front of ten people but the sin will eventually be publicized, the sinner is considered a public transgressor.  Rashi says that Akhan was liable for the stoning penalty, which implies that a warning must have been given by witnesses and therefore the sin would eventually have been publicized.  That would define Akhan as a public Shabbat transgressor.  And to reiterate, Akhan was nevertheless called a bona fide Jew!  It follows that a public Shabbat transgressor would still be able to count in a minyan. 

 

     Furthermore, the Gra quotes the gemara concerning Akhan (Sanhedrin 44a), with its conclusion "Even though he sinned, he is still a Jew," as the source of the law that a sinner can still be counted in a minyan.  Thus, Akhan is the model of a sinner whose Jewishness is still unaffected.  The Gra also quotes this gemara as the source for the Shulchan Arukh's ruling (YD 129:2) which forbids borrowing with interest from a habitual transgressor ("mumar").  The mumar referred to there is a "mumar le-khol ha-Torah" - one who transgresses the entire Torah, not just one particular mitzva.  The Gra, then, must hold that for a number of halakhot, a mumar can be treated halakhically as a full-fledged Jew.  This is obviously not the case for everything (performing ritual slaughter, for example), but it is the case regarding counting for a minyan or the prohibition of borrowing with interest.  Even though we are stringent about Shabbat transgressors in a number of areas, we would be able, based on the Gra, to count them for a minyan.  Apparently, according to the Gra, prayer is different than other realms.

 

     The Rambam's inspiring statement at the end of his "Ma'amar Kiddush Hashem" provides support for this:

 

It is also not proper to alienate Shabbat desecrators and to despise them.  Rather, we should bring them close and encourage them to fulfill the mitzvot.  The Sages have already taught that if a willful sinner later comes to the synagogue and wants to pray, we should accept him.  He should not be treated disdainfully.  They relied on the words of King Shelomo, 'Do not despise a thief when he steals to fill himself because he is hungry' - Do not despise a Jewish sinner who comes secretly to 'steal' mitzvot.

 

     We will close with the words of Rav David Tzvi Hoffman in his responsa Melamed Le-ho'il (OC #29):

 

In these times we are accustomed to rule leniently even in Hungary and in all of Germany.  I remember that once, one of the men of our community who kept his store open on Shabbat was in mourning.  He took his place leading the prayers in the synagogue during his mourning period. ... When I asked the gaba'im why they did not prevent him, they told me that this was the custom from days of old.  In the Beit Ha-midrash here, they do not prevent one whose business is open on Shabbat from leading the prayers.  Since the earlier rabbis were men of great renown, they must have had good reasons not to object.

 

     He also writes:

 

The Rav also told me ... that the Gaon, the author of the Sho'eil U-meishiv, wrote that people from America who desecrate the Shabbat are not disqualified through their lack of observance because they are equivalent to children who were taken captive.

 

     From the same source:

 

There is another reason to be lenient today and not to consider them public Shabbat desecrators - because there are so many who transgress.  When there is a strong majority who keep the Torah and a small minority who transgress publicly, they are seen as acting brazenly, denying the Torah.  Such a one is acting (as the Torah says) 'with a high hand,' and separates himself from the community of Israel.  Since today, unfortunately, we have sinned to the degree that most Jews have broken with tradition, an individual who desecrates the Sabbath does not think that he is committing such a grave sin.  He therefore thinks that there is no reason to act only privately.  His public sin is thus no different than a private one.

 

     Based on all of the above, it is legitimate to count Shabbat desecrators towards a minyan for kaddish, barkhu, and the repetition of the silent prayer.

 

 

[This adaptation has not been reviewed by Harav Amital.  See also his article "A Torah Perspective on the Status of Secular Jews Today," which appears in the archives on the VBM website.]