Part 5 – Kulot (Leniencies) of Tinok Sh’Nishba

 

There are many areas where the practical halacha today is impacted by the widespread reality of secular Jews who are considered to be tinokot sh’nish’b’u.

Filling in a letter of a Sefer Torah

As we discussed, one who is mechalel Shabbat b’farhesia should have the status of a non-Jew and should, therefore, be pasul (disqualified) for ketivat Sefer Torah (writing a Torah scroll). As a result, many (Minchat Eliezer, Chayei Asher, Yad Yitzchak, and Rav Moshe Shternbuch) prohibit honoring secular Jews, who are presumably mechalel Shabbat b’farhesia, with filling in a letter at a hachnasat Sefer Torah (celebration for completing a Torah scroll).

However, based on secular Jews being considered to be tinokot sh’nish’b’u, the sefer U’Makareiv B’Yamin writes that there is room to be lenient with mechalelei Shabbat today, since most of them do not have the din of mechalel Shabbat b’farhesia. Furthermore, there is the concern of eivah (hatred) if we exclude them from filling in a letter. It is possible that they may then resort to even worse behavior. So, in order to not push them further away, we could be lenient when there is a need for it.

Lashon Hara (Negative Speech)

There are two different aspects to the allowance to speak lashon hara about a rasha, and they need to be balanced. First, the negative speech should make the transgressor feel that he is somewhat outside of the machaneh Yisrael — Jewish people. But, on the other side, if everyone would be allowed to speak lashon hara about him without any limitation, this would prevent bringing him closer, since he would see that all are viewing him as a rasha. Therefore, there needs to be some degree of to’elet — benefit, to be permitted to say the lashon hara.

The sefer Netivot Chaim on the Chafetz Chaim (4:44) explains —

Although a mumar l’tei’avon is not included within amitecha for many halachot, in terms of lashon hara, he is not completely excluded. It is, therefore, assur to speak about him unless all five of the normal conditions [to speak negatively about someone] are met.

The Be’er Mayim Chaim (4:32:4) writes about two different aspects to this necessary to’elet (benefit). First, is to distance other people from the evil path, since they hear that people are speaking negatively about the evil doer. And, secondly, when the transgressor hears that people are disparaging him due to his bad behavior, this may actually encourage him to return from his evil path. The speaker of the lashon hara must be careful, however, not to derive any satisfaction from the negatives he is attributing to this person. In addition, it must not come from any negative feelings he has towards him. It should only be [motivated by] the truth.

This is all in contrast to an apikores, or a mumar l’hach’is, who threw off all observance. Since they both completely left the category of amitecha, there is actually a mitzvah to disparage and speak lashon hara about them, since this is inherently considered to be beneficial. Due to the great danger that they pose, whatever can be done to distance them from the klal is a mitzvah. We need to be more concerned about preventing damage to Klal Yisrael than bringing them back in teshuva. We are, therefore, not even required to make sure that there is no enjoyment in speaking negatively about them, because of the automatic benefit in hating them.

The Chafetz Chaim once wrote an extremely sharp letter against a particular apikores, and then another letter to substantiate his words [in the first letter]. Since this letter was against an apikores, the Chafetz Chaim did not hold back from writing so sharply against him. On the contrary, he considered it a mitzvah to disparage the apikores.

Counting for a Minyan and Other Davening Issues

There is a question whether non-observant Jews may be counted towards a minyan.

Both the Shulchan Aruch (55:11) and the Rema pasken that a regular transgressor may be counted as part of a minyan as long as he had not been put into nidui (i.e., ostracized). Some poskim explain this by noting that the source for the requirement of a minyan is learned from the verse that refers to the ten bad spies. Rav Moshe (Igrot Moshe — Orach Chaim §23) also suggests a logic to permit counting mechalelei Shabbat for a minyan. Since public kiddush Hashem is defined by ten Jews, even if they are kofrim or mumarim, perhaps we can also count them for davening. {There are, however, a number of reasons to argue on this.} And, finally, the Netziv says that since we accept offerings from transgressors, we should allow them to be a part of our minyan as well.

The Mishnah Brurah (§46) quotes the words of the Pri Megadim —

The Shulchan Aruch is speaking specifically about where one is violating l’tei’avon (because of desire). If, however, one is violating l’hach’is (as an act of rebellion against Hashem), even with a single aveirah, or one is a mumar l’avoda zara, or mechalel Shabbat b’farhesia (publicly violating Shabbat), even l’tei’avon, it is then forbidden to count him towards the minyan.

The Mishnah Brurah (§46) adds — “Also, one who denies Torah sh’Ba’al Peh cannot be counted for a minyan,” which the Kaf HaChayim (§16) agrees with.

The Netziv (Meishiv Davar §9) writes similarly — One who accepts idolatry and [one who is] mechaleil Shabbat b’farhesia, where we would not accept his offerings, because we assume that he won’t do teshuva, and therefore his tefillah is also a to’eva (abomination), how would it be possible for us to join together with him [for tefillah]?

Another issue is that someone who does not believe in a particular mitzvah cannot fulfill his obligation in that mitzvah. Hopefully, we can assume that if a Jew wants to participate in davening, he does believe in it. And by showing up to the minyan, he is also showing that he actively wants to be a part of the community of the Jewish People.

According to Rav Moshe Feinstein, even if one is stringent on whether contemporary non-affiliated Jews count towards a minyan, one could be lenient with them making up the minyan for saying Kaddish and other matters of sanctity. At the same time, any prayer that does not involve ten Jewish believers is not considered tefilla b’tzibur — the special status of communal prayer. Rav Elyashiv also permitted counting him in a minyan in order to justify saying Kaddish and Borchu. Other poskim, however, hold that such a person may not be counted as part of a minyan for any matters of kedusha (sanctity).

Although Rav Shlomo Zalman Auerbach defined secular Jews of today as tinokot shenish’b’u, he still wrote that it is improper to allow them to be counted towards a minyan. He permitted counting such a Jew for a minyan only where failure to include him would cause quarreling in the shul. This is actually the approach of most authorities. And some poskim permit counting non-observant Jews only when they are very clearly tinokot shenish’b’u.

Rav Noach Oelbaum, a prominent Rav in New York, writes in Minchat Chen (pg. 157) — “It appears that, according to the opinion of most poskim, mechalelei Shabbat today are like tinokot sh’nish’b’u. Therefore, although one should try to find a minyan of ten proper Jews, in a time of need, one could include them in a minyan.”

And, independent of whether the should be counted towards the minyan, the Rambam (Igeret HaShmad ) writes that they should certainly be welcomed into the shul —

It is not fitting to distance those who desecrate Shabbat and to disparage them. Rather we should bring them close and encourage them to do the mitzvot. Our Rabbis have already explained that [even] if one who rebelled willfully comes to the shul to daven, we should accept him, and not treat him negatively.

Shaliach Tzibur (Leading the Davening)

Many poskim forbid having a non-observant Jew lead the davening as the shaliach tzibur, since he is not a proper agent for the congregation. However, Rav Dovid Tzvi Hoffman (Melamed l’Ho’il — Aleph — Orach Chaim §29 ) does allow a Shabbat desecrator, who is a tinok sh’nish’ba, to serve as the shaliach tzibur. Rav Henkin allows a Shabbat desecrator to lead the beginning of the davening under extenuating circumstances. And perhaps even further allowances may be made to avoid conflict. Rav Dovid Cohen allows someone who believes in Hashem but who is not observant to lead the davening and the bentching, as long as his motivation is sincere.

When it comes to one who doesn’t believe in the foundations of Judaism, however, the Mishnah Brurah, writes that it is forbidden for him to serve as the shaliach tzibur. But even here, for the sake of preventing resentment, he may be allowed to lead the end of the davening.

According to many of the poskim, even with tinokot sh’shish’b’u, where they were never educated about Torah and mitzvot, if they want to lead the davening, for a yahrtzeit or something similar, we should push them off with different excuses. If, however, they simply begin leading the davening [on their own], we should still answer amen and Kedusha after them, and not separate from the minyan. This [of course] is [only] if they believe in Hashem, even if they are mumarim.

We see similarly from the words of Rav Ovadia Yosef (Chazon Ovadia — Yamim Nora’im pg. 38) —

In our generation, according to our many transgressions, many are educated in secular schools and are in the category of a tinok sh’nish’ba. If, however, they do teshuva, none of their aveirot will be mentioned anymore. As the Magen Avraham (§8) mentions, if one is forced to transgress, and then returns in teshuva, everyone agrees that he can be appointed to lead the davening. All who return in teshuva, it is a mitzvah to draw him close with ropes of love, and to appoint him to lead the davening all of the days of the year.

The clear inference from his words, however, is that Rav Ovadia Yosef is only lenient with a tinok sh’nishba once he has already done teshuva. But as long as he is connected to his aveirot, even if this is because he was educated in an environment of non-Jews and is a tinok sh’nish’ba, we may still not appoint him to lead the davening.

Rav Moshe Shternbuch (Teshuvot v’Hanhagot 1:99) also discusses one who has done teshuva. He writes that it is pashut (simple and obvious) that a ba’al teshuva who received no Torah education and was in the category of a tinok sh’nishba, according to all opinions is seen as a tzadik gamur (completely righteous person), and can be appointed as the shaliach tzibur, even for Rosh Hashanah and Yom Kippur. He is not considered to have a bad name from his youth [which would normally be a disqualification]. On the contrary, there is an advantage for him to be the shaliach tzibur. His tefillot are accepted and pleasing to Hashem since he has sanctified G-d’s Name through returning in teshuva.

Aliyot to the Torah

While, in principle, any Jew can be called up to the Torah (Megillah 23a, Orach Chaim 282:3 ), including transgressors, it is considered to be a chilul Hashem to show honor to Shabbat violators by giving them an aliyah. The Chacham Tzvi extended this chilul Hashem to bystanders who would see this without protesting. His son, Rav Yaakov Emden, qualified his father’s ruling, however, and limited it to apostates who had converted to another religion (She’eilat Ya’avetz 1:79). It is thus unclear how the Chacham Tzvi would rule about giving aliyot to secular Jews today.

Rav Moshe Feinstein (Igrot Moshe 3:12,22) writes that regular mumarim today seem to be l’tei’avon, since they are like tinokot sh’nish’b’u. And, specifically since they are coming to daven, we see that they have emunah in Hashem. Therefore, in a case of tzorech gadol (great need), one could honor a mechalel Shabbat l’tei’avon with an aliyah.

However, given all of the issues involved, Rav Shlomo Zalman Auerbach suggests that we give them the honor of hagbah and gelilah (picking up and helping to tie the Torah scroll), but not an aliyah to the Torah, unless it is specifically a kiruv minyan.

The Chazon Ish [as well as the Ben Ish Chai] permitted calling up a non-observant Jew to the Torah only after the initial seven men had been called up. And Rav Henkin ruled that since the ba’al koreh reads from the Torah today, we may give an aliyah to a tinok sh’nish’ba, provided that only observant Jews who are able to recite proper brachot are called up for the first and the last aliyot.

Separate from the question of honor, brachot (blessings) on the Torah that are said by one who does not believe in Hashem are not considered to be brachot. The issue of the brachot seems to be the main concern to Rav Moshe Shternbuch (Teshuvot v’Hanhagot 1:472) regarding giving aliyot to secular Jews —

Most of the mechalelei Shabbat here in Israel are l’tei’avon and like a tinok sh’nish’ba. They never heard about the seriousness of Shabbat and were not raised with the Torah. The main concern, however, is that their blessing for the Torah is not a bracha, but rather blasphemous. How can they say that we were chosen from all of the nations and given the Torah when they aren’t keeping the Torah, or accepting the yoke of Torah, at all?

Birkat Kohanim

There is a dispute among the Poskim whether a Kohen who is a mumar for chilul Shabbat may perform the Birkat Kohanim. Most authorities forbid him to do so (Pri Chadash, Orach Chaim 128:39), but Rav Moshe Feinstein said that while it would be best if he would not do it, we cannot disqualify him if he wants to (Igrot Moshe, Orach Chaim 1:33). There are even some poskim today who hold that non-observant Kohanim should actually be permitted to perform the Birkat Kohanim (Zakein Aharon 1:12, Yabia Omer, chelek zayin, Orach Chaim 15:4).

Intermarriage

Rav Yosef Tuvis (Zichron Yehuda) ruled that a man living with a non-Jewish woman should not be the reader of the Torah. He explained that this geder (fence) is particularly appropriate, since the aveira of intermarriage has a loss which is not found with any of the other illicit relations (i.e., that the children are not considered to be his) (Even HaEzer, siman §16).

In addition, many poskim rule that they should not even be counted in a minyan, as a means of conveying a message of disapproval towards intermarriage. However, the skyrocketing intermarriage rate has brought some poskim to draw the conclusion that this is no longer the correct approach to take, besides the fact that many of them could be viewed as tinokot sh’nish’b’u.

The Minchat Yitzchak (3:65) seems to say that all Jews know it is forbidden to marry a non-Jew, since it destroys the Judaism of their children. There are, however, Jews who were raised around non-Jews, with no Torah or mitzvot who don’t see anything wrong with this at all. In their eyes, [marrying someone Jewish] is simply a good thing to do. Perhaps, therefore, they could be considered as tinokot sh’nish’b’u even with intermarriage.

Standing up for Kavod (Honor) and Yireh (Fear/Respect)

While there is a mitzvah to stand up in front of a zakein (elder) who is seventy years old, there is a question whether one is obligated to stand up in front of a zakein who does not keep Torah and mitzvot.

Based on the Gemara (Kiddushin 32b), there is a machloket Rishonim about who we are supposed to honor by standing up. This centers on the meaning of a zakein ashmei, who the Gemara tells us we are obligated to honor. Is he a rasha v’am ha’aretz (evil and ignorant person) as Rashi says, or a bor v’am haretz (lowly and ignorant person) as Tosfot says?

According to Tosfot, Rosh, Ran, and the Chinuch, the chiyuv is to stand up in front of a zakein am ha’aretz, but not a zakein rasha. This also appears to be the opinion of the Rambam (Hilchot Talmud Torah 6:9) and the Rema (Yoreh De’ah § 244) — “[The mitzvah applies] even with an am ha’aretz, as long as he is not a rasha.” The halacha is according to these Rishonim that we are not required to stand up in front of a rasha.

As we have already discussed, many secular Jews today are considered to have the din of a tinok sh’nish’ba. Most of them violate Shabbat because they were not raised to appreciate it, and they never heard about the seriousness of its prohibitions. As it says in the Shulchan Aruch HaRav (End of Hilchot Ribit) –

Although they heard afterwards that they were Jewish, and they saw Jews and their religion, they are still like one who was coerced, since they were raised among the non-Jews and their religion.

It would, therefore, seem incorrect to call them resha’im in terms of the halacha. If so, we may be obligated to stand up in front of them according to all opinions.

Rav Wozner (Shevet Levi) writes —

It is simple and obvious (pashut me’od) that [on the one hand] a [secular Jew who is a] tinok sh’nishba is not doing the proper actions of the nation. [But on the other hand,] he will not be judged as a rasha since his transgressions are being done b’shogeg (not willfully). [He concludes that the halacha is that —] there is no obligation to stand up before a [secular] zakein who is a tinok sh’nish’ba. However, there is room l’hader (to give some honor to) a zakein like this, in a casual way, at least with words.

Rav Nissim Karelitz is quoted (Kibud v’Hadar — pg. 447) similarly —

We should not stand up before a zakein like this. [Since] “there is a zilzul (cheapening) to honor one who is not fulfilling mitzvot, the logic would seem to be that we need not honor him. [But at the same time] it is forbidden to shame or strike him.

The sefer Kibud v’Hadar also brings the opinion of Rav Elyashiv —

We assume that all of the [secular] elders are mochel (forgo any honor), and therefore [the requirement to] give them any honor is doubtful. But if they wouldn’t be mochel, then m’ikar hadin (the basic halacha is that), we would need to stand up to our full height for an elder in the category of a tinok sh’nishba.

If, however, one finds himself in a situation where not standing up before an elder would look like a chilul Hashem, like not giving up one’s seat for an elder on a bus, or not standing up in a place where everyone else is standing up, it would seem that we should give some honor and stand up before an elder who is a tinok sh’nishba, according to all opinions.

 

This should be l’zechut ul’iluy nishmat Ruchama Rivka, a”h, bat Asher Zevulun 

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