The Status of Secular Jews: Shabbos Desecration

One of the principle questions in considering the qualification of secular Jews for participating in a minyan is Shabbos desecration.

The Gemara (Chullin 5a) teaches that one who desecrates Shabbos publicly is considered a mumar, and he is equated in many halachic ways to an idolater: His shechitah is not valid (Yoreh De’ah 2), he is disqualified from writing a get (Even Ha-Ezer 154), and he is disqualified from testifying in Beis Din (Rambam, Eidus 11:10).

Rashi explains that the reason for this disqualification is that just as somebody who worships idolatry attests to his lack of faith in Hashem, so somebody who violates Shabbos attests to his disbelief in Hashem’s creation of the world. Although still a Jew – a Jewish sinner remains Jewish – he is disqualified, on account of his heresy, from halachic areas that require Jewish input.

Secular Jews desecrate Shabbos every week, and this would seem to be a reason to consider a secular Jew in the category of a mumar.

What Constitutes Public Desecration

However, the Shulchan Aruch (Orach Chaim 385:2) explains that one who desecrates Shabbos only in private is not disqualified from standard Jewish status (with regard to the laws of eruvin), even though he transgresses a Biblical law.

In defining what is a “private” desecration, the Mishna Berurah (385:6) writes that somebody who is embarrassed to transgress before a great man is still defined as a private Shabbos desecrator, even if he is willing to desecrate the Shabbos before a number of other Jewish people.

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

“A certain man walked in the public domain on Shabbos wearing a spice container (which is forbidden as an act of carrying). When he saw Rabbi Yehuda the Prince, he covered it up. He (Rabbi 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 only a private Shabbos desecrator. His desecration of Shabbos is not absolute, and his negative testimony concerning belief in Hashem’s creation is incomplete. Only the most brazen public desecration of Shabbos, which is done even in front of the leading rabbinic figures of the generation, is classified as a public desecration.

Based on this ruling, it is sufficient for somebody to refrain from transgressing Shabbos in front of the greatest scholar or leader of the generation (like Rabbi Yehuda) in order to retain the definition of a private (not public) transgressor.

Although the Maharsham (Daas Torah, Yoreh De’ah 2:30) writes that this view is overly innovative, the halachah is quoted authoritatively by the Eliyahu Rabba and the Tosafos Shabbos (Yoreh De’ah 2), as well as by the Chayei Adam (75:26) and the Tzemach Tzedek (Even Ha-Ezer 259).

In a similar sense, Rav Moshe Feinstein (Orach Chaim Vol. 1, no. 33) writes that those who only desecrate Shabbos publicly because of their need for income are possibly not considered public desecrators, the reason being that their violation of Shabbos is not brazen. His reasoning is that these people were not denying Hashem’s creation of the world but couldn’t overcome their yetzer hora because of their need for money.

A similar logic is employed by the Melamed Leho’il (Orach Chaim 29), who writes that because it has become common practice (among non-observant Jews) to desecrate the Shabbos, it follows that public desecration might receive the halachic status of private desecration:

“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… Since today, unfortunately, we have sinned to the degree that most Jews have broken with tradition, an individual who desecrates Shabbos does not think that he is committing such a grave sin. He therefore thinks that there is no reason to act only in private. His public sin is thus no different from a private one.”

These considerations, may at times in certain places be relevant today.

Un-Willful Transgression

Aside from Shabbos transgression, another reason for which non-observant Jews might be considered mumarim is their beliefs. The Rambam (Mamrim 3:1-2; Commentary to Mishnah, Sanhedrin Chap. 10) explains that somebody who does not believe in the entire Torah – the Written Law and the Oral Law – is thus disqualified from standard Jewish status.

However, the Rambam writes, a condition for this disqualification is that the relevant behavior or belief should be willful, and not coerced: “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).”

The Shulchan Aruch (Orach Chaim 385:1) rules that a tsedukey is considered a regular Jew for matters of eruvin. Based on this, the Binyan Zion (Chadashos, no. 23) writes that there is a place for those who are lenient concerning the wine of non-observant Jews who continue to come to shul and to make kiddush. (He did not discuss Jews who live a life that is totally alienated from all Jewish content.)

After noting the ruling of the Rambam, and adding that according to the Hagahos Maimonios (Hilchos Mamrim 6) a person is not categorized as a rasha unless he transgresses intentionally and refuses to accept rebuke, the Chazon Ish writes the following (Yoreh De’ah 2:28):

“At the end of his book Ahavas Chesed, the Chafetz Chayim quotes the Mahari Molin’s opinion that it is a mitzvah 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… the same holds true for other halachos (i.e. Sabbath desecrators are always considered full-fledged Jews).”

Thus, according to the Chazon Ish many secular Jews are considered qualified Jews for many intents and purposes. It is noteworthy, however, that this distinction is not made by the Mishnah Berurah (see Biur Halachah 608:2), and it appears that the Mishnah Berurah gave the secular Jews of his time the status of mumarim.

Joining a Minyan

With regard to joining a minyan, the Peri Megadim (Orach Chaim 55) writes that somebody who is a heretic in his beliefs, or somebody who publicly desecrates Shabbos, cannot make up a minyan. This ruling is cited by the Mishnah Berurah (55:46).

However, we have already noted the ruling of the Iggros Moshe, who writes that under extenuating circumstances they can form part of a minyan – at least for purposes of Kedushah (but not for tefillah be-tzibbur) – proving the point from the fact that an assembly of heretics constitutes a halachic assembly. According to the Peri Megadim, it appears that there is a distinction between a minyan of Jews for purposes of Kiddush Hashem (for which a Jew of any type qualifies) and a minyan  for purposes of prayer, for which only a Jew of full status qualifies.

It is noteworthy in this context that the Shulchan Aruch (Orach Chaim 55:11) writes that “a sinner who goes against a community decree or committed a sin can still be counted towards a minyan if he was not excommunicated.” The Mishnah Berurah (55:47) quotes the Magen Gibborim, who writes that this refers even to one who commits a capital offense, proving the point from the case of Achan who committed a grievous sin yet was still referred to as a Jew.

The Sha’ar Ha-Ziun adds that the sin of Achan included transgressing Shabbos, as Rashi explains in his commentary on the book of Yehoshua (see also Biur Ha-Gra, and annotations to Yoreh De’ah 129:2; see also Maharasham, Even Ha-Ezer 10, who discusses the proof from the case of Achan).

Additional Considerations

Aside from the halachic questions noted above, the question of allowing secular Jews to participate in shul raises additional considerations. Some push us towards permitting them to participate in shul, and some to the contrary.

The Rambam’s statement at the end of his Ma’amar Kiddush Hashem provides a good starting point:

“It is also not proper to alienate Shabbos desecrators and to despise them. Rather, we should bring them close and encourage them to fulfill the mitzvos. 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 Shlomo, ‘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’ mitzvos.”

For most Jews who come to shul to daven, the approach according to this must be to accept them and draw them close. Rabbi David Tzvi Hoffman (Melamed Leho’il, Orach Chaim 29) makes the point in the context of our halachic discussion (of joining a minyan), pointing out the common custom of Hungary and Germany:

“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 Shabbos 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 Beis Midrash here, they do not prevent one whose business is open on Shabbos from leading the prayers. Since the earlier rabbis were men of great renown, they must have had good reasons not to object.”

The influence of similar considerations brought Mahari Asad (Yoreh De’ah no. 50) to draw non-observant Jews closer in whichever way possible: “Certainly in our times, when our generation has mostly broken with tradition, they should not be alienated further.  G-d forbid that they should be pushed away; this will only intensify their lack of belief. Rather, they should actively be brought close.”

At the same time, we also find a number of teshuvos in Shut Iggros Moshe (Orach Chaim, Vol. 2 nos. 50-51; Vol. 3, no. 21) where Rav Moshe warns of permitting heretical Jews – in one place he refers specifically to Reform rabbis – to participate in shul proceedings, warning also of a possibility of “flattery of the wicked.” He specifically rules that they can not be accorded an aliya to the Torah since their brochos are problematic and one must hear Torah over which a brocho is recited. If necessary one should find other honors to accord them. Thus, one should make every attempt to bring them close, but must at the same time, remain within the confines of the halocho.

Each case must thus be weighed individually, and there is much to consider. Therefore, when the situation arises, one should of course consult with a halachic authority.

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