Question: I live in a small community where it is sometimes a struggle to get a minyan together. When this occurs on Shabbos this is extremely upsetting. I am so concerned that I was wondering – may we ask some of the non-observant Jews who live in the neighborhood to join us to complete a minyan?
Name withheld
Via E-mail
Synopsis: Last week, we cited Exodus (31:16-17) to highlight the source for our Sabbath observance. The verse explains that the Sabbath serves as a sign between G-d and the Jewish people of our uniqueness before G-d. The Gemara (Shabbos 10b) describes Sabbath as a precious present from G-d to the Jewish people. In addition, in Parashat Bereishit (Genesis 2:1-3), we see that Sabbath bears testimony to the Creation since G-d sanctified the day when He abstained from the work of Creation on that day.
We discussed the self-sacrifice that many throughout the generations have exhibited in regard to Sabbath observance. While today there are many laws to protect the Sabbath observer, this was not the case generations ago. Many Jews faced a hard choice: Observe the Sabbath or put bread on your table. Unfortunately, there were many who did not withstand the challenge. It therefore became de rigueur for Jews to refer to themselves with the appellation “Shomer Shabbat.” They identify themselves as Sabbath observers as opposed to describing themselves as “Shomer Torah u’Mitzvot.” Although the observance of the Sabbath is just one aspect of Judaism, it is one that clearly identifies the Jew and is an unmistakable indicator of his or her level of commitment.
* * * * *
Answer: When I first became a pulpit rabbi, I turned to my late colleague, mentor, and former halacha columnist here at The Jewish Press, Rabbi Yaakov Simcha Cohen, zt”l, for guidance in many matters small and large. The idea was how to be in conformity with the Arba Chelkei [four sections of] Shulchan Aruch as well as the crucial fifth section. Now, you may ask, what is the fifth section of the Shulchan Aruch? My rebbi and mentor, the Mirrer Rosh HaYeshiva, HaGaon HaRav Avraham Kalmanowitz, zt”l, would wryly mention many a time this fifth chelek when granting semicha to his talmidim. However, if you were to search all the shelves in any shul or Torah library whether public or private, you will not find this fifth section. So where is it?
When I discussed matters with Rabbi Cohen, I soon came to understand that it is an unwritten section and one that demands intense thought, discernment, and compassion – basically common sense. Being a communal pulpit rabbi, he encountered almost every type of situation, both here in America as well as in Australia, that demanded consulting that fifth section. Among them was how to deal with a Mechalel Shabbat for the purpose of completing a quorum of ten – a minyan – as well as other facets of participation in the service as well as in the community.
His view was one of leniency when there was a need. If the fellow came in and joined the service, he could be included, even though he might have driven to shul that very Shabbat morning. Yet is this person not a Mechalel Shabbat b’farhesya – an open Sabbath desecrator? How to include him?
Additionally, I remember when my late colleague, mentor, and president of the Igud HaRabbonim (the Rabbinical Alliance of America, where I currently serve as presidium chairman), Rabbi Abraham Hecht, passed away, the funeral was held in his synagogue, Cong. Sha’are Zion on Ocean Parkway in Brooklyn, where he led the congregation for some 50 years. His son, and my colleague on the presidium of the Igud, Rabbi Yehoshua Hecht, rabbi of Cong. Beth Israel-Chabad of Norwalk, CT, related the following in his hesped:
When the new shul was built, the Hecht family were still living in Bensonhurst and it was a long walk every Shabbos morning to Ocean Parkway. Young Yehoshua asked his father why not walk along Avenue P to Ocean Parkway, as it is the shortest distance. Rabbi Hecht responded: “I’d rather see my people in the synagogue than in their stores.” Chillul Shabbos and Chillul Shabbos b’farhesya aside, he was hopeful that they would eventually come to full observance. As a testament to his efforts, today the Sephardic community of Brooklyn is by and large Shomrei Shabbat.
The difficulty with the above anecdotal assumptions is that there are numerous halachic limitations as well as situations that remove an activity, and hence the individual, from being designated as a Mechalel Shabbat b’farhesya. Let us view some sources that these two rabbis and many others rely on in such situations.
It is important to define a “public violation.” HaRav Yaakov Etlinger, author of the famed Aruch LaNer commentaries on the Talmud, rav of Altona, Germany, and teacher of HaRav Ezriel Hildesheimer, contends that the Shabbos violation must take place in the presence of ten Jews. It is not sufficient for a Jew to become aware of the sin. It is not even sufficient for a congregation of Jews to each individually become aware of the sin. No less than ten Jews standing together must witness the activity to deem one a public Shabbos violator.
His argument is based on the Talmud (Sanhedrin 74b) that derives the definition of what we refer to as farhesya (literally, a public act) as being derived from the verse (Numbers 16:21) “Hibadlu mi’toch ha’edah hazot…” – separate yourselves from amongst this congregation – from which we extrapolate that there is an absolute requirement of a minyan – ten individuals joining together for all matters of kedusha (including tefillah b’tzibur, kaddish, barchu, kedusha, etc.). Just as these activities must have at least ten Jews together in one place, so too must the violation of Shabbos manifest in the same format.
Of concern is the general statement that Esther committed a public sin when she came to Ahashveirosh (“Esther b’farhesya hava”). This shows that since everyone knew about Esther’s intimate relations with the king, it was deemed a public act. Thus, to be categorized as a public act, it is not necessary for ten Jews to witness the sinful activity. In Esther’s case, knowledge by itself made it a public action. To this, HaRav Etlinger differentiates that in matters of intimacy where it is almost impossible to acquire witnesses that actually view the sin, general knowledge is sufficient to declare the activity a public act. However, when it pertains to Shabbos, no act is considered public unless ten Jews together view the violation. Common knowledge is that the Minchat Eleazar, the Munkatcher Rav, further refined this concept to require ten Shomrei Shabbat – Shabbos observant Jews – to actually view the violation for the violator to be deemed a Mechalel Shabbat b’farhesya.
HaRav Etlinger further noted (Responsa Binyan Tzion, Hachadashot Number 23) that a Jew who publicly transgresses Shabbos ordinances is deemed a gentile in that such action manifests his non-belief in G-d and in His role as the Creator of the world, as the Shabbos itself is our weekly testament to G-d’s creation of the world. On the other hand, should such a Jew transgress Shabbos yet pray in a synagogue and recite kiddush on Friday night, he is considered to be a believer and is not to be cast off from our people. He is not to be considered a gentile.
HaRav Dovid Hoffman (Rosh HaYeshiva of the Hildesheimer Yeshiva in Berlin, and predecessor of the S’ridei Aish) cites the Shoel U’meishiv and the Binyan Tzion who both contend that American Jews who violate Shabbos are classified as “children who were captured by gentiles” – “tinokot shenishbu bein ha’akum” – and are not to be judged as Mechalelei Shabbat b’farhesya. HaRav Hoffman further notes that the stringency of a reaction to a public violator of Shabbos may only be operational in a community wherein most Jews are observant. To publicly transgress Shabbos in a community where almost everyone is Torah observant is an act of open rebellion against Judaism. A consequence is that such a person is to be considered like a gentile. However, in an area wherein the overwhelming majority of Jews violate the Shabbos on a regular basis, any individual who transgresses Shabbos is unfortunately merely following the general wrongful mode of behavior. As such, he or she is not viewed as rebelling against G-d.
Rav Hoffman notes that many in Hungary as well as in Germany were lenient in this matter (Sefer Melameid L’ho’il, 29). From the writings of the Chazon Ish (to Yoreh De’ah, End of Siman 2), it appears that any Jew who did not receive proper rebuke (tochacha) concerning violating Shabbos is deemed to have comparable status to a child captured by gentiles. Similarly, HaRav Shlomo Zalman Auerbach, the late world-renowned posek, ruled (Ma’adanei Shlomo, Volume I, Mo’adim/Festivals, pp. 26,27) that any Jew who withholds himself from violating Shabbos while in the presence of a rav or ish chashuv (an important person) is not to be considered a Mechalel Shabbat b’farhesya.
Taking into consideration the above concerns, it is extremely difficult to halachically presume that any public violation of Shabbat automatically deems one a Mechalel Shabbat b’farhesya. Accordingly, halacha would permit all Jews to receive aliyot on Shabbos unless it may be substantiated that an individual Jew does not meet any of the limitations noted.
In a related ruling, HaRav Samson Raphael Hirsch (Responsa Shemesh Marpei, Siman 7) ruled that a Kohen who was a shochet and was married to a prostitute (meaning a woman of known loose morals) may not receive an aliyah as a Kohen. The obvious implication is that even though he violated a Biblical law by entering into a forbidden union and by so doing we are no longer duty-bound to sanctify him (the mitzvah of V’kidashto), he may nevertheless receive any of the other aliyot that any Yisrael (non-Kohen) may receive. Of course, Rav Hirsch further notes that in this instance where the man was a shochet, additionally one may not eat from an animal that he slaughtered. He then concludes with a prayer that Hashem redeem us from all such sin and suffering.
The message of this holy warrior on behalf of Orthodoxy – Torah-true Judaism – resonates with us today, some 140 years later after his passing, as we eagerly await the arrival of Moshiach, speedily in our days.
(To be continued)
