Today is September 24, 2017 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
Two classic categories of a status of disqualification are that of the Shabbat violator and the heretic. Both categories require closer investigation. Shabbat violators have been excluded in the past primarily when their violation was part of a break with the community. Today, besides the arguments for decreased culpability based on tinok she’nishba, this reality does not exist: Shabbat violators do not stand outside the community, and this status of disqualification should not be relevant.
The status of the heretic was an innovation of Rambam, and it appears that even he did not apply it consistently. A close reading indicates that only heresy that leads to transgressive action translates into a status of disqualification. Hazon Ish goes further and implies that even without actual transgression, heretical beliefs can invalidate if it undermines the person’s felt religious reality of being under the “yoke of mitzvot.” In addition to those framings, many argue that tinok she’nishba and decreased culpability applies as much to the issue of heresy as to that of Shabbat violation. Today, another factor is relevant. Given that our beliefs must be affirmed and cannot be taken for granted as they were in the past, one who does not believe has not committed the rebellious act of heresy; he merely does not believe.
We conclude that a status of disqualification applies only in the case of 1) heretical beliefs that 2) translate into transgression 3) such that has the effect of setting a person outside the boundaries of his community. In today’s world, it is very hard to meet the criteria for 1 or 3, as a lack of belief is rarely if ever actual heresy and nonobservance of Shabbat is rarely if ever a full breaking away from the Jewish community. There may still be certain areas where such people cannot play active roles, and these must be explored further, both with regard to the rules that guide this and in looking at case-by-case requirements. As a matter of personal status, however, they would not be disqualified.
Opening: Basis for stam yaynam
Section 1: Status of a Shabbat violator
Part 1: Rishonim and Poskim
Part 2: Historical Development and Conclusion
Section 2: Status of one who does not believe
Part 3: Gemara and Rambam
Part 4: Understanding Rambam
Part 5: Different Types of Heresy and Applications for Today
1.2.1. Karaites and Shabbat violators in context
As noted, Rav Yosef Karo quotes in his Beit Yosef (YD, 119) a responsum of Rashba in the name of Rabbenu Yonah (7, no. 179). Both this responsum and a similar one of Rivash (no. 4), also quoted by the Beit Yosef, state that if a person had been forcefully converted he would not make the wine he touched forbidden but that willful Shabbat violators would indeed render the wine they touch un-kosher. Given that the larger context is that of forceful conversion, it is possible that this was meant to be limited to a case where Shabbat violation was part and parcel of rejecting the Jewish community, thus identifying the person—at least communally—as no longer truly Jewish. This would not necessarily apply to the non-observant today. Nevertheless, these responsa can be read categorically: the wine of a Shabbat violator is not kosher.
The first question that we must ask, however, is whether we rule according to this teshuva. As noted by Rav Moshe, while Rav Yosef Karo quoted these responsa in the Beit Yosef, and while this is also quoted by Rema in Darkhei Moshe (YD, 124:3–4), in Shulchan Arukh itself, it is only ruled that an apostate to another religion makes wine un-kosher; there is no mention of the Shabbat violator (YD, 124:8).
This issue continued to be discussed by later poskim, particularly in regard to the Karaites. For example, in Nekudat HaKesef (YD, 124, on Taz no. 2), Shakh quotes the responsum of Mabit, who quotes a responsum of Rabbenu Shimshon (found in Maharshakh, 3:15) and the responsum of Rabbenu Betzalel Ashkenazi (no. 3), both of which rule that the wine of Karaites is deemed un-kosher. On this basis, many poskim have ruled that the wine of Shabbat violators is always forbidden (see, for example, the authorities listed in Darkhei Teshuva, YD, 124, no. 12, as well as those quoted in Yabia Omer 1, YD, no. 11, and ibid., 5, YD, no. 10).
Context, however, is critical here. The authors of these teshuvot explicitly state that the Karaites they are dealing with were not like those that Rambam was dealing with when he ruled that their wine was permissible. Rabbenu Betzalel, for example, writes that the Karaites of his time had קלקלו מעשיהם, “greatly corrupted their acts,” as compared to earlier times. For this reason, he argues, they should be judged to be “like non-Jews,” and their wine should be forbidden. What is meant by this distinction is not clear, and in fact, Rav Ovadya Yosef (Yabia Omer 5, YD, no. 10) challenges this, stating that there is no basis for being more strict since the Karaites in Rambam’s times violated the Yamim Tovim (particularly Shavuot, which they celebrated on a different day) and Shabbat (given their different understanding of its laws) just as much as the Karaites being dealt with in these responsa. What, he asks, could they have been doing that was worse than what they were already doing in Rambam’s time?
Similarly, the Pri Chadash (112, no. 2) also takes a strict view regarding Karaites, stating that their bread is forbidden like the bread of non-Jews because they do not eat our bread. But as Rav Ovadya again points out, the fact that they do not eat our bread should be irrelevant to their status, which should only be judged according to whether or not they are Shabbat violators.
It seems that the explanation for all of this is clear. These poskim are not assigning a status of disqualification to the Karaites due to the technical violation of Shabbat. Rather, they are assigning such status based on how the Karaites had established themselves as a separate and antagonistic community. In the responsum quoted above (no. 449), where Rambam permits the wine of Karaites, he makes it clear that the Karaites of his time had positive interactions with Rabbinic Jews and that a closeness existed between the two communities. He writes:
|ראויים הם לחלקם מחלקי הכבוד להתקרב אצלם במעשה יושר ולהתנהג עמהם במדת הענוה ובדרך האמת והשלום כל זמן שגם הם ינהגו עמנו בתמימות ויסירו מהם עקשות פה ולזות שפה מלדבר תועה על חכמי הרבנים שבדור||[Regarding the Karaites in these lands] it is appropriate to give them respect and to draw close to them, to act towards them in an upright manner and in humility and in the way of truth and peace, as long as they also act towards us with integrity and remove from themselves evil speech to speak perverseness against the Rabbis of the generation…|
In real-world terms, the Karaites of Rambam’s time and place were part of the broader Jewish community and could not be considered “like non-Jews.” However, the Karaites with whom Rabbenu Betzalel, Pri Chadash, and others were dealing had become a fully separate and most probably antagonistic community. This is what is meant when it is said that they had “greatly corrupted their acts,” and it is demonstrated in their refusal to eat our bread.
Similarly, Rabbenu Shimshon rules in the above-referenced teshuva that, due to concerns of mamzerut resulting from different practices of marriage and divorce, it would be forbidden to intermarry among the Karaites, as if they were non-Jews (see also Rema, Shulchan Arukh EH 4:37, who rules likewise). If this was a group with whom, for whatever reason, there could be no intermarriage, then for all intents and purposes they were already seen as existing outside of the Jewish community.
The rulings of these poskim, then, imply that a normal Shabbat violator would not make his wine stam yaynam. It was only because the Karaites of their day were, in so many ways, no longer part of the Jewish community that they should be given the status of “like non-Jews” and their wine deemed un-kosher.
It is possible that this issue is at the center of the rulings in Hullin (13a) that state that the shechita, wine, and bread of minim are forbidden, their fruit is untithed and their children are mamzerim. While some of these—the wine, the shechita, and the scrolls—can be attributed to concerns over idolatrous worship, not all of them can. As stated above, the word “minim” refers primarily not to idolaters, but to sectarians (who may or may not be idolaters). These were sectarians like the Judæo-Christians, who in the eyes of the Rabbis stood outside the Jewish community. In this way they were unlike the Sadducees, for example, who even served in the Temple. It may be largely because of their sectarianism that all these rulings were applied, rulings that would create absolute barriers between them and the rest of the Jewish community. Notice, too, the parallels to rulings that were given regarding the Karaites: the prohibition of eating the bread (from both sides), the prohibition of intermarriage given the concern over mamzerut, and the prohibition of wine.
Now when it comes to a mumar who violates Shabbat, he is certainly no more disqualified in halakha than the min, and his status might actually be modeled after that of the min. If the status of the min is primarily due to his having broken away from the community, then it is reasonable to assume that this is true of the Shabbat violator as well.
In conclusion, among the poskim there are those who allow and those who forbid the wine of Shabbat violators. Many of those who permit, or who adopt a permissible approach, do so for the simple reason that reasons for stam yaynam do not apply to Shabbat violators.
Those who forbid the wine of Shabbat violators adopt a formalist approach, seeing Shabbat violators as having a status “like non-Jews.” Some apply this status to all Shabbat violators regardless of context. Nevertheless, a close reading of the sources shows that many who have ruled strictly, and especially the authors of some of the foundational teshuvot regarding Shabbat violators and wine, are referring specifically to Karaites and those drawn after Christianity. According to this reading, being a Shabbat violator is not enough to afford one a status of disqualification. It is only when one stands fully outside the community that he could be considered “like a non-Jew” and his wine deemed un-kosher.
1.2.2. Shabbat violators today
The phenomenon we are discussing—a Shabbat violator who is still a member of the community—may have been rare in the past, but it became pervasive with the advent of the haskalah, when most Jews stopped observing Shabbat. While many poskim continued to apply the traditional status of disqualification to such Shabbat violators, a number of poskim realized that a serious reassessment was necessary.
One of the first to rule in this regard was Rav Yakov Ettlinger (1798–1871, Altona) in a responsum dated November 1860 (Binyan Tzion HaChadashot, no. 23). The case he addresses is exactly like ours: the status of wine touched by a Shabbat violator. While he states that such wine is forbidden in principle, he goes on to say that the entire category of “Shabbat violator” needs to be reassessed. First, he says, their violation is not truly intentional since they do not believe that what they are doing is forbidden. Second, although they violate Shabbat, they still believe in God as Creator, as is evidenced by the fact that they pray and make kiddush. And third, since Jews nowadays who are not raised in a traditional community are not aware of their obligation in mitzvot, this second generation, at least, is like a tinok she’nishba, an infant who was taken captive and did not realize he was Jewish. The last reason is used most widely by those poskim who adopt an inclusive approach toward non-observant Jews today. The emphasis here is to lessen the culpability of the violation, and in that way, it echoes the first reason, that the person does not think that the act is forbidden. Similarly, there are those who also argue for decreased culpability due to the fact that the person has not been properly warned prior to his transgression.
Beyond the issue of culpability, Rav Ettlinger goes on to explicate why such violators are not considered outside the community and how they differ from the Karaites of the past:
|שמה שמחמיר הר”ש בקראים להחשיב יינם יי”נ אינו מפני חילול מועדות שדומה לשבת בלבד אלא מפני שכפרו גם בעיקרי הדת שמלין ולא פורעין ואין להם דיני גיטין וקדושין שעי”ז בניהם ממזרים. ובזה רוב הפושעים שבזמנינו לא פרצו.||For although Rabbenu Shimshon was strict regarding Karaites and considered their wine to be defiled, this is not just because they violate the Yamim Tovim, which are like Shabbat, but it is also because they reject the fundamentals of the faith, in that they circumcise without pulling back the foreskin, and they do not have [our] laws of divorce and marriage, as a result of which their children are mamzerim. And regarding such behavior most of our generation has not torn down the fences.|
Notice here that the emphasis is not on the degree of culpability but on the difference between behavior that does not take someone out of the community and that which does. In the modern era and perhaps even earlier, Shabbat violation alone was not sufficient to do this. It was only the more drastic behaviors of not circumcising (or not doing so properly) or ignoring the halakhot of divorce, thereby making it impossible for halakhically observant Jews to marry their children, that could be said to have this effect. Someone who lacks the physical marker of identity (for men) or who cannot be married to an observant Jew is someone who stands outside the community.
This echoes the approach that we presented above: for someone to be given the status of “like a non-Jew,” especially for such issues as making wine not kosher, what is required is behavior that puts a person fully outside the community.
This approach is also taken by Rav David Zvi Hoffmann (1823–1921, Berlin) in an undated responsum (Melamed Li’Ho’il, OH, 29) regarding whether a Shabbat violator can count in a minyan. He first gives the reason of tinok she’nishba as a basis to be lenient, and then he states,
|עוד יש סניף להקל דבזמננו לא מיקרי מחלל שבת בפרהסיא, כיון שרובן עושין כן, דבשלמא אם רוב ישראל זכאין, ומעטים מעיזים פניהם לעשות איסור זה הרי הוא כופר בתורה ועושה תועבה ביד רמה ופורש עצמו מכלל ישראל, אבל כיון דבעו”ה רובם פורצים הגדר תקנתם קלקלתם, היחיד חושב שאין זה עבירה גדולה כל כך וא”צ לעשות בצנעה, ופרהסי’ שלו כבצנעה, ואדרבה היראים קרואים בזמננו פרושים ומובדלים, והפושעים הם ההולכים בדרך כל הארץ||There is another basis to be lenient, for in our times [a non-observant Jew] is not called a public desecrator of Shabbat, since most act that way. For it was one thing at a time when most Jews acted correctly and only a minority were brazen enough to do this transgression; then such an act was a rejecting of the Torah and acting despicably in a brazen way, separating oneself from the Jewish People. But since now, in our great iniquity, most people are non-observant, this works to their benefit. An individual thinks that what he is doing is not such a big sin, and he does not feel compelled to do it in private; his public sinning is equivalent to a private act. And the opposite now is true, that those who are observant are considered to be separatists, and those who are non-observant are doing the norm.|
Notice that, for Rav Hoffmann, the significance of the Shabbat violation is that it is a brazen act that separates a person from the community. This is why it must be a public act in order to affect his status. Whether public or private, the gravity of the sin is the same. What is different is whether it positions the person outside the community and its norms, and this only a public act can do. In Rav Hoffmann’s day, this was no longer the case with Shabbat violation, since the communal norm had actually become the non-observance of Shabbat! Under such circumstances, public violation had no more meaning than private violation. Since, in practice, the person violating Shabbat was not breaking the norms of the community, he would not be deemed halakhically to be outside the community. He could not be given the status of one who is “like a non-Jew.”
It is true that, for many Rishonim, the reason for the Gemara’s harsh stance regarding Shabbat violators is because such violation demonstrates a lack of core principles of faith (see Rashi, Hullin, 5a, s.v. Ela, and Rambam, Laws of Shabbat, 30:15). What Rav David Zvi Hoffmann is saying is that such lack of faith, still present in his day, is not enough to disqualify a person. What is needed to invalidate is a lack of faith that translates in action, action that places a person outside of the Jewish community.
It is important to note that Rav David Zvi Hoffmann extends the approach we have been laying out in one significant way. According to him, because a contemporary Shabbat violator does not stand outside the community, he can even count for a form of halakhic participation: being a member of a minyan. Until now, we have argued that a Shabbat violator who is not outside the community does not have the “like a non-Jew” status and does not make wine into stam yaynam. Such a person stands, in practical terms, outside the halakhic community even while he stands squarely inside the larger Jewish community. It would thus be reasonable to refuse to give him the “like a non-Jew” status while arguing that he is not an active member of the halakhic community and may not be able to play certain roles. According to Rav David Zvi Hoffmann, however, if such a person is still in the broader community, then they have no status of disqualification at all; they may even count towards a minyan and play a halakhic role within the halakhic community. These cases may have to be looked at on a case-by-case basis. It is not clear, for example, how Rav David Zvi Hoffmann would rule regarding such a person’s qualification as a shochet, a mohel, or a witness, areas of greater halakhic weight (they are Biblical in nature) and in which the person is being asked to play a more active role than merely counting towards a minyan. This requires further exploration.
For those who adopt the tinok she’nishba argument, these distinctions would be less relevant. Such an argument does not focus on whether a person is inside or outside a particular community, but rather, on his degree of culpability for the sin of Shabbat violation. If such a person is held to be not culpable, this would be a basis for across-the-board inclusion, whether to count towards a minyan or to be a mohel or a shochet. Nevertheless, even among those who follow this approach, they may be more hesitant to apply it to Biblical matters.
1.2.3. Conclusion regarding the wine of Shabbat violators
In drawing this section to a conclusion, we have seen that there is good basis to argue that the status of a Shabbat violator is not, in principle, relevant to the halakha of stam yaynam, which is based on concerns of intermarriage and idolatry. There are those who would adopt a formalist approach and rule that having the status of “like a non-Jew” should apply even in this case. Nevertheless, as we have shown from some of the earliest responsa and following the more recent responsa of Rav Ettlinger and Rav David Zvi Hoffmann, there are serious questions as to whether this status should be applied to Shabbat violators today. Given that such people continue to identify with and participate in the Jewish community, it is difficult to assign them this status of disqualification.
In addition, there are other factors that would lead one to be lenient. As detailed in Yabia Omer (1, YD, no. 11), there are those who state that the ruling that a Shabbat violator has the status of a non-Jew is only rabbinic in nature. This provides a general basis for leniency and might also indicate that we should assess each case individually, only applying this status where relevant; it would not be in the case of wine. Some further argue that to change someone’s halakhic status on the basis of Shabbat violation would require a formal procedure of testifying against—and in front of—that person in a Beit Din (see Yehudah Ya’aleh, Yoreh Deah, 50, who argues for both of these positions).
Given all the above, there is ample reason to be lenient regarding drinking wine touched by those who do not observe Shabbat when the situation warrants, especially in our times. It should also be noted that almost all the arguments made above (with the exclusion of those based on the non-idolatrous non-Jew as per Shulchan Arukh 124:2, 124:6, and 125:1) would apply equally to cases in which the person produced the wine and not only touched it, although in general we should strive to be more strict in those cases. As a general practice, of course, we should be strict in all cases, as many poskim rule that this is the halakha and, minimally, as Rav Moshe writes, this has become the custom. Nevertheless, when it is a sha’at ha’dechak, or when there are issues of human dignity or people’s feelings and sensitivities, we must be strict on these interpersonal obligations and rely on all of the many reasons and opinions that such wine is not forbidden.
The Karaites’ separate identity from that of the Jewish community played out in a drastic way during the Holocaust, when the Nazis ruled that Karaites were not Jews and they were thus saved the murderous fate of millions of Jews. According to the Jewish Virtual Library (s.v. Karaites), Rabbanite (i.e., Non-Karaite) rabbis were instrumental in this: “The Karaite question continued to be debated by the German authorities who queried the Rabbanite scholars….on the origin of the Karaites. In order to save them, all three gave the opinion that the Karaites were not of Jewish origin.” Nevertheless, this entry continues, “[the] behavior of the Karaites during the Holocaust period vacillated between indifference to the Jewish cause and some cases of actual collaboration with the Germans.” The picture is more nuanced according to Wikipedia (s.v. Crimean Karaites), which states that “[many] Karaites risked their lives to hide Jews, and in some cases claimed that Jews were members of their community.”
As stated above, n. 8, this may be the basis for Rambam’s ruling that a Shabbat violator is “like a non-Jew.” Since the Gemara Eruvin (69a) states that he is like an idolater and the Gemara Avoda Zara (26b) states that an idolater is a min, we then apply to such a person the rulings in Hullin (13a) regarding a min—rulings that effectively treat him “like a non-Jew.”
We will return to the second reason—that such people still cling to the core religious beliefs—below, in our discussion of the wine of a non-believer who observes the mitzvot.
See, for example, the responsum of Rav Shlomo Goren, published in Iturei Kohanim, vol. 110.
I was thus much distressed when I read of the Tulip Winery in Israel, which employed residents of Kfar Tikvah, people with a range of intellectual disabilities. The winery was unable to receive a hekhsher from the Israeli rabbinate because these workers were not Shabbat observant. The owner was told that he could receive a hekhsher only if he fired all of his employees and replaced them with new, Shabbat-observant workers. Thankfully, after four years of effort, the owner succeeded in getting a ruling by Rav Shmuel Wozner, alav ha’Shalom, that enabled him to receive a hekhsher so long as he employed these workers in jobs that did not require them to directly touch the wine. As we have demonstrated, while the default practice is to not allow non-mevushal wine to be touched by those who are not Shabbat observant, there are many opinions that may be relied on when called for, and it is situations such as these which not only allow for such a ruling but demand it.