Can a Person Who Desecrates Shabbat in Public be Counted Towards a Minyan

 

          Many have pointed out that in today's times, especially among soldiers serving together in the Israeli army, one is bound to always strive to take actions that can help draw people closer to Jewish tradition, and to avoid actions that could push them further away from it, God forbid. Rav Y. Asad wrote the following about those who desecrated Shabbat in his generation:

Today when the generation is mostly breached [from tradition], we must not distance people and push them away with two hands, God forbid, lest they remove themselves even further, and it is better to draw them near outright. (Teshuvot Maharya, YD, no. 50)

          Based on this consideration, he concluded that personal disqualification based on non-observance of the mitzvot, with respect to serving as a witness and the like, requires testimony before a court given in the person's presence. Even though the Peri Megadim (55, Eishel Avraham 4) is stringent, as is brought in the Mishna Berura (55:46), in our time there is room for leniency for the reasons that will be explained below.

1. The Shulchan Arukh rules (OC 385:2) that a person who desecrates Shabbat only in private, even if he transgresses Torah prohibitions, is treated like an Israelite for the purpose of eiruvin. See the Mishna Berura there (385:6) who writes that if a person would be embarrassed to sin in the presence of a Torah authority, even if he sins in the presence of others, he is treated as one who desecrates Shabbat in private. The source for this ruling is a Gemara in Eiruvin (69b):

A certain man once went out [in a public domain] with a jeweled charm [on Shabbat] but when he saw Rabbi Yehuda Nesi'a he covered it up. He said: A person of this type is, according to the view of Rabbi Yehuda, entitled to renounce his share [like a regular Israelite].

And Rashi there writes:

“Of this type:” who desecrates Shabbat in private.

          We see from here that even if a person only refrains from desecrating Shabbat in the presence of the greatest Torah authority and leader of the generation, he is already removed from the category of public Shabbat desecrators. Even though the Maharsham (Da'at Torah, YD, 2:30) writes that this is a novel position, it is cited as normative by the Eliyahu Rabba and the Tosefet Shabbat (ad loc.) and by the Chayyei Adam (75:26) and the Tzemach Tzedek (Teshuvot, EH 259).

          In light of this it is clear to me that the vast majority of Shabbat desecrators in our time should be treated as desecrators of Shabbat in private. In any event, we should certainly not rely on an assumption that a particular person belongs to the minority that is even more shameless, but rather we require testimony before a court in the person's presence, as argued by Rav Asad, cited above. See Teshuvot Peri ha-Sadeh, 1, 62) and Teshuvot Avnei Tzedek (YD 60), who rule in accordance with Rav Asad's position.

2. The Chazon Ish writes the following (YD 2, 28) regarding how one should relate to the non-observant in our time:

There is another condition for this [categorization], namely, that the person [violating the law] not act under compulsion. As the Rambam writes in Hilkhot Mamrim 3:3, that their children and students [of heretics] are viewed as acting under compulsion, and like a child who had been taken captive. And a child who had been taken captive brings a [sin-]offering, as is stated in [Shabbat in] chapter Kelal Gadol (68a-b), and we are commanded to sustain him, and even to desecrate Shabbat for his sake in order to rescue him. And Hagahot Maimuniyot, Hilkhot Edut, chap. 6, writes that we are only permitted to hate him after he has refused to accept rebuke. And at the end of the book Ahavat Chesed, he writes in the name of Rav Y. Molin, that there is a commandment to love the wicked [who have not been rebuked] for this reason. And he brings also from a responsum of Maharam Lublin that in our situation it is always regarded as before rebuke, for we do not know how to give proper rebuke, and so we treat them like those acting under compulsion, and therefore we cannot exempt them from yibbum, and so too regarding the rest of the laws.

          This principle, that in our time Shabbat desecrators should be treated as acting under compulsion, already appeared in the writings of Rav Kook. The novelty in the words of the Chazon Ish is his explicit reference to laws connected to heretics.

3. It seems to me that the view of the Peri Megadim brought in the aforementioned Mishna Berura, that one who desecrates Shabbat in public cannot be counted toward a minyan, is not accepted by all, for the Shulchan Arukh writes there in 55:11:

A sinner who violated a communal enactment or some other sin, if he was not placed under a ban, he is counted towards a minyan of ten.

On this the Mishna Berura writes (55:47) in the name of Magen Gibborim:

Even if he commits a transgression for which he liable for the death penalty. The reason is that it is written regarding Akhan, "Israel has sinned" (Yehoshua 7:11)… Even though he sinned, he is still an Israelite (Sanhedrin 44a) and he retains his sanctity.

In Sha'ar ha-Tziyon (ad loc.) he adds that Akhan's offense was an act of Shabbat desecration, as is stated by Rashi in his commentary to the book of Yehoshua. See also Maharsham (Even ha-Ezer 13) who says that Akhan was only guilty of violating the ban against taking from the spoils of Yericho. And even though the Gemara in Sanhedrin 44a states: "Rabbi Ila'a said:… This teaches us that Akhan transgressed all five books of the Torah," the Maharsham understands that this is the view of a sole dissenting authority or else merely an asmakhta (homiletics loosely based on a verse but not a strict interpretation).

In any event we must say that the Mishnah Berura maintains that Akhan's offense was not performed in public before ten people, and therefore even though he sinned, he is still treated like an Israelite. But there is room to question this, for according to Rav Y. Asad in the aforementioned responsum, in order for Shabbat desecration to be considered public, it is not necessary that the sinner transgress before ten people, but rather it suffices if he knows that his desecration of Shabbat will become a matter of public knowledge. Now, Akhan, who, according to Rashi, committed a sin that was punishable by stoning, must have been warned in the presence of witnesses, and thus he knew that the matter would become public. Accordingly, he should he regarded as one who desecrates Shabbat in public.

Furthermore, the Vilna Gaon in his commentary on the words of the Shulchan Arukh, on the ruling that a sinner is counted towards a minyan, notes as the source the Gemara in Sanhedrin 44, that an Israelite, even after he sins, is regarded as an Israelite. And see the Shulchan Arukh YD 159:2, regarding the prohibition of borrowing money from an apostate at interest, where the Vilna Gaon notes that same Gemara as the source, that an Israelite, even after he sins, is still regarded as an Israelite. If so, it turns out that even an apostate regarding the entire Torah is included, according to the Vilna Gaon, in the rule that an Israelite, even if he sins, is regarded as an Israelite. Thus, it follows that even an apostate can be counted towards a minyan. And even though with respect to other laws we are stringent regarding one who desecrates Shabbat in public, we must say that the law regarding prayer is different.

Further proof for this may be adduced from the words of the Rambam at the end of his Ma’amar Kiddush Ha-Shem:

It is also unfitting to push away Shabbat desecrators   and abhor them, but rather one should draw them near and encourage them to perform the commandments. Our Rabbis, of blessed memory, already explained that even if a sinner willingly sinned, when he comes to pray in a synagogue, we accept him and do not treat him in a humiliating fashion. They based this all on the words of Shlomo, peace be upon him, "Do not despise a thief, if he steals to satisfy his soul when he is hungry" (Mishlei 6:30) – do not despise the sinners of Israel when they come clandestinely to steal mitzvot.

          In conclusion, I wish to cite the words of Rabbi D.T. Hoffman (Melammed le-Ho'il I {OC}, 29):

Today, however, it is customary to be lenient even in Hungary, and all the more so in Germany. I remember that it once happened that a person who kept his store open on Shabbat was in mourning, and he was one of the members of our congregation… and he went down before the ark in the synagogue [to lead the service]… and when I asked the gabbai why he didn't stop him, he told me that this was also the custom in earlier times in this Beit Midrash, that people whose businesses are open on Shabbat are not barred from going down before the ark. And since the Rabbis who were there, who were men of renown, did not object, presumably they had their reasons…

And so I was told by Rabbi… in the name of the Gaon, author of Sho'el u-Meishiv, that the people from America are not disqualified on account of their Shabbat desecration, because they are treated like a child who had been taken captive…

There is also another argument in favor of leniency, that in our time they are not called public Shabbat desecrators, because most people act in that manner. Granted, when most of Israel are virtuous, and a minority audaciously commit this transgression, such a person denies the Torah, and practices abomination with a raised hand, and separates himself from the people of Israel. But since, owing to our many sins, most people breach the fence [and violate the laws of the Torah], the individual does not regard this as such a great sin that he should do it in private, and so his public behavior is like that done in private.

          In light of all that has been said above, it seems to me that in our time, even people who desecrate Shabbat in public may be counted toward a minyan even regarding kaddish, barekhu, and chazarat ha-shatz.

(Translated by David Strauss)