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Counting Non-Observant Jews Towards a Minyan

In Parshas Korach we find the word “eidah,” a congregation, which is also found in Parshas Shlach as applied to the meraglim (the spies).

The Gemara derives from the number of spies that an eidah—a congregation—has at least ten Jewish men (Sanhedrin 74b; the Gemara refers to the mitzvah of Kiddush Hashem, which is performed in front of ten Jewish men).

Since the spies were clearly wicked people, and according to the Sages they were even heretics (claiming that Hashem did not have the power to bring the nation into the Land of Israel), it emerges that even the wicked can form an eidah.

Based on this, Rav Moshe Feinstein (Shut Iggros Moshe Vol. 1, no. 23) writes that the same condition applies to saying Kedushah with a minyan. According to many opinions, the only requirement is that the ten people should be Jewish. There are no further conditions, and even secular Jews, who have no connection to the Torah, can count towards a minyan for Kedushah if they are participating in the prayers.

Rav Moshe adds that the principle does not apply to completing a minyan for tefillah be-tzibbur. But he states that under extenuating circumstances one could certainly rely even on secular Jews who are praying with the minyan, since this will at least be effective for Kedushah, according to some opinions.

Although Rav Feinstein gave only a brief reply to the question, the issue of joining non-observant Jews in a minyan was discussed at length by a number of authorities.

We will present a short discussion of the subject, explaining some of the angles from which the issue has been approached, and delineating some of the practical considerations involved. What is the status of a Jew who desecrates Shabbos publicly? What about a Jew with heretical beliefs? What is the common custom in these matters?

We will seek to answer these questions based on a deeper understanding of the issues involved.

The Status of Secular Jews: Shabbos Desecration

One of the principle questions about the qualification of secular Jews for 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 aspects to a non-Jew: His shechitah is not valid (Yoreh De’ah 2), he is disqualified from writing a get (Even Ha-Ezer 123), 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 as creator 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 on a weekly basis, and this will apparently be a basis to consider them as in the category of a mumar.

What Constitutes Public Desecration

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

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

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

“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 Yehudah the Prince, he covered it up. He (Rabbi Yehudah) said, “Someone like he 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 complete, and his negative testimony concerning Hashem’s creation is incomplete. Only the most brazen public desecration of Shabbos, even in front of the leading rabbinic figures of the generation, is a public desecration.

Based on this ruling, if follows that it is sufficient for somebody to refrain from transgressing Shabbos in front of the greatest scholar or leader of the generation (like Rabbi Yehudah), because of embarrassment, in order to retain the status 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 (Orach Chaim 385), as well as by the Chayei Adam (75:26) and the Tzemach Tzedek (Even Ha-Ezer 259).

Similarly, Rav Moshe Feinstein (Orach Chaim Vol. 1, no. 33) writes that those who desecrate Shabbos publicly for the sake of their income (out of need) may not be considered public desecrators, since their violation of Shabbos is not brazen.

A similar logic is employed by the Melamed Leho’il (Orach Chaim 29), who writes that since it has become common to desecrate the Shabbos, 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 (prewar Germany), unfortunately, we have sinned to the degree that most Jews have broken with tradition; an individual who desecrates Shabbos may 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, and certainly the latter one, are no less relevant today, in certain environments, than they were at the time of writing.

Un-Willful Transgression

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

However, the Rambam writes that 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 tinok she-nishba is considered as a regular Jew for matters of eruvin. Based on the assumption that the average secular Jew is, indeed, a tinok she-nishba, the Binyan Zion (Chadashos, no. 23) writes that there is room to be lenient concerning the wine of a non-observant Jew. The Binyan Zion is duscussing a secular Jew who continues to come to shul and to make Kiddush. How should such a Jew be classified?

If this was true of non-observant Jews one hundred and fifty years ago, it is all the more true of non-observant Jews today, who are brought up in an atmosphere of heresy and given little chance to appreciate the truth and beauty of Torah.

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 (Maharil) 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 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 will be considered fully qualified Jews for certain dinim. It is noteworthy, however, that this point is not made by the Mishnah Berurah (see Biur Halachah 608:2), and it could be 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 count towards 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 count towards a minyan if they pray with the minyan – at least for Kedushah (but probably 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 Kiddush Hashem (for which a Jew of any type qualifies) and a minyan  for 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, “A sinner who goes against a community decree or who 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 committed a capital offense. The Sha’ar Ha-Ziun (43) explains that this is derived from Achan since the sins of Achan included transgressing Shabbos, as Rashi explains in his commentary on the book of Yehoshua, and yet he was referred to as a Jew (see also Biur Ha-Gra, see also Maharashdam, 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.

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 must be to accept them and to draw them close. Rabbi David Tzvi Hoffman (Melamed Leho’il, Orach Chaim 29) makes the point in the context of his halachic discussion (of joining a minyan), pointing out the custom of some in Hungary and Germany:

“In these times we are accustomed to rule leniently even in Hungary and certainly in 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 of Chevras Shas during his mourning period… When someone asked the gaba’i why he did not prevent him, he told me that this was the custom from days of old. In the Beis Midrash there, 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.”

Similar considerations brought Mahari Asad (Yoreh De’ah no. 50) to draw non-observant Jews close 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.”

Based on this approach he concludes that in order for people who are only suspected to be Shabbos desecrators to be invalidated (as witnesses, 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. This procedure is entirely unheard of today, leaving those who are merely suspected of being non-observant Jews qualified for most matters pertaining to davening (see Shut Peri Ha-Sadeh Vol. 1, no. 62 and the Shut Avnei Tzedek Yoreh De’ah no. 60, who rule according to Mahari Asad’s opinion).

Yet, 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 against permitting heretical Jews – in one place he refers specifically to Reform rabbis – to participate in shul proceedings. He mentions also of a possibility of  this being forbidden due to its being considered flattery of the wicked.

Each case must thus be weighed on its merits, and one should of course consult with a halachic authority.

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