S.A.L.T. - Thursday

          After the scouts' return from their excursion in Eretz Canaan and their negative report about the land, God angrily turns to Moshe and Aharon, and exclaims, "How much longer shall that wicked community keep muttering against Me!?" (14:27). The Gemara (Megila 23b) interprets this exclamation as referring not to all of Benei Yisrael, but rather specifically to the ten spies who spoke negatively about the land.  From here the Gemara deduces that the term "eida" ("community," or "congregation") in the Chumash denotes a group of ten.  The halakhic ramification of this conclusion is the famous halakha of a "minyan" (literally, "counting"), requiring ten men for any "davar she-bikdusha," meaning, special prayers such as the repetition of the shemoneh esrei, borkhu, kaddish, kedusha and Torah reading.  Since, as the Gemara explains (we will not go into the intricate details), the concept of sanctifying God is associated in the Chumash with the term "eida," this can occur only in the presence of ten men.

         May non-observant Jews count towards a minyan for the recitation of a "davar she-bikdusha"?

         The Shulchan Arukh (O.C. 55:11) explicitly rules that sinners may count towards a minyan.  The source for this halakha is the Sefer Ha-manhig, as cited in the Bet Yosef, and the Hagahot Maimoniyot (Hilkhot Talmud Torah 6) in the name of the Rokei'ach.  There is some discussion, however, as to the scope of this ruling. The Peri Megadim (Eishel Avraham) qualifies this halakha to refer only to an "avaryan le-tei'avon," one who sins out of uncontrollable drives.  One who sins with the specific intent of rejecting the Torah, by contrast, may not count towards a minyan.  As the Kaf Ha-chayim notes, however, the Peri Megadim's view is not universally accepted; he cites earlier authorities who maintain that all sinners, regardless of motive, may be counted towards a minyan. 

         Another qualification on the Shulchan Arukh's ruling is imposed by the Netziv, in his "Meishiv Davar" (1:9).  In a strongly worded letter, the Netziv forbids the inclusion of Shabbat violators in counting towards a minyan.  He claims that just as during the times of the Temple the kohanim were instructed not to accept sacrifices from public Shabbat violators, so may we not count them towards a minyan.

         While agreeing with the Netziv's position in principle, Rav David Tzvi Hoffman, in his "Melamed Le-ho'il" (1:29), allows in practice counting public Shabbat violators towards a minyan.  He draws a distinction between public Shabbat violators in his time (he lived from 1843-1921) and those whose inclusion towards a minyan is forbidden by halakha. He bases his distinction on three factors.  First, he cites from a teshuva of Rav Yehuda Asad that even someone known to violate Shabbat publicly is not given the formal, halakhic status of a "mechalel Shabbat be-farhesya" until formal testimony to his Shabbat violation is rendered before a rabbinical court.  Secondly, Rav Hoffman, citing earlier sources, invokes the famous ruling of "tinok she-nishba," that those who violate the Torah because of their non-observant upbringing are not halakhically considered sinners. Therefore, those who grew up in non-observant homes do not attain the formal status of Shabbat violators and may be counted towards a minyan.  Finally, Rav Hoffman claims that even if we do consider such people "violators," we perhaps cannot consider them "public violators."  Rav Hoffman boldly argues that when Chazal spoke of a public Shabbat violator, they referred specifically to the gall and audacity to oppose the majority and undermine the widespread belief in and practice of the Torah.  Nowadays, however, when, to our unspeakable misfortune, Shabbat observers have become the minority among the Jewish people, Shabbat violators cannot attain the status of "public" violators, since Shabbat desecration no longer carries with it the element of brazenness and "chutzpa."  Nevertheless, Rav Hoffman does recommend that if one can avoid, in a non-provocative manner, participating in a minyan that must include non-observant Jews towards its minimum quorum of ten, he should do so.

         A drastically different approach to this entire issue is taken by Rav Moshe Feinstein zt"l, in his Iggerot Moshe (O.C. 1:23; O.C. 2:19; O.C. 3:14), where he rules categorically that any sinner, regardless of the nature or motive of the sin, may be counted towards a minyan.  Interestingly enough, he cites proof from the meraglim themselves, which, as discussed earlier, provide the source of the halakhic requirement of a minyan.  Rav Moshe cites from Midrashic sources that the scouts did not believe in God's power to defeat the Canaanite nations, rendering them actual heretics and nonbelievers (see Rashi, 13:31).  And yet, they nevertheless qualified as an "eida," which halakha requires for the recitation of a "davar she-bikdusha."  Rav Moshe proves from here that even public Shabbat violators and the like count towards a minyan.

         Yet another view is cited in the name of Rav Yosef Rosen, the famous Gaon of Rogotchov (who served as a rabbi in the city of Dvinsk), who distinguished between the musaf service and other prayers.  In essence, sinners of any kind may be counted towards a minyan.  Musaf, however, serves only as a commemoration of the musaf sacrifice in the Temple, as opposed to the other prayer services which, though also commemorate the sacrifices, possess an additional quality of "rachami" – an appeal to God for compassion.  Since, as mentioned earlier, kohanim would not accept korbanot from public Shabbat violators, we cannot rely on them for a minyan in commemorating the musaf offering.  As Rav Moshe Feinstein notes, however, later sources disagree with this ruling.  The halakha forbidding the acceptance of offerings from Shabbat violators relates only to personal, individual sacrifices. But the public, national sacrifices, such as the korban musaf, which were brought on behalf of the entire nation in the Bet Ha-mikdash, were offered on behalf of everyone, including Shabbat violators.  We have no reason, then, not to include Shabbat violators towards a minyan for purposes of the musaf prayer service.

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