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Executive Summary

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.

Contents


Opening: Basis for stam yaynam

Section 1: Status of a Shabbat violator

Part 1: Rishonim and poskim

  1. Rambam rules “like a non-Jew” 
  2. Formalist and non-formalist approach to stam yaynam
  3. Hatam Sofer, Hazon Ish and Rav Moshe Feinstein follow non-formalist approach

Part 2: Historical Development and Conclusion

  1. Teshuvot regarding Karaites – Shabbat violation or break from community?
  2. Shabbat violators nowadays – tinok she’nishba and not breaking away from community
  3. Conclusion: status of those who do not keep Shabbat and status of their wine

Section 2: Status of one who does not believe

Part 3: Gemara and Rambam

  1. Status, not mitzvah acts
  2. Gemara – status is based on action
  3. Rambam – status also based on belief

Part 4: Understanding Rambam

  1. Why can some heretics serve as a shochet?
  2. Heresy that leads to transgressive action and heresy that does not
  3. Hazon Ish – heresy cannot undermine the  “the yoke of mitzvot”

Part 5: Different Types of Heresy and Application Today

  1. Shabbat violation is heresy that translates into action
  2. Rav Sternbuch – lack of belief can never be the basis for exclusion
  3. Non-believers nowadays – tinok she’nishba, and a lack of belief rather than heresy
  4. Conclusion: status of those who do not believe, and status of wine that they touch

The Status of a Non-Believer Regarding Wine and Other Matters

QUESTION:  I am an observant Jew, brought up frum, however I do not believe in God. Nevertheless, I am midakdek bi’mitzvot and want to make sure that everything I do is li’fi ha’halakhah. I generally use grape juice for kiddush. However, I want to use wine for the arba kosot at Pesach as I know that grape juice is seen by many as not being acceptable, or li’chatchilah, as it is not derekh cherus. My question is this: Can I use non-mevushal wine, which I would prefer, or will the fact that I am handling it make it stam yaynam and therefore forbidden?

ANSWER:  First, let me acknowledge that given the fact that you do not believe in God, your commitment to Torah and mitzvot is truly commendable. It is so much harder to maintain true and careful observance of halakha when it is not backed up by a belief system. This is a true fulfillment of the Yerushalmi Haggigah (1:7):

אמר רבי חייה בר בא אותי עזבו אוותרה שמא את תורתי שמרו שאילו אותי עזבו ותורתי שמרו השאור (יש גורסין: המאור) שבה היה מקרבן אצליSaid R. Chiyah the son of Aba, “[God said:] ‘Had they abandoned Me,’ I could forgive it, had only they kept My Torah, for had they abandoned Me and kept My Torah, the yeast [or ‘the light’] in it would have brought them close to me.”

I know that to have belief in an age of skepticism and reason can be a truly formidable challenge. You have not indicated if you wish to find, or are open to finding, belief. If you are, this passage points to a path. In addition to the observance of mitzvot, the phrase, “keeping My Torah,” in this passage refers also to the study of Torah. I do not know whether you devote time to the study of Torah, but if not, I would encourage you to. It is my hope that your continued observance of halakha coupled with the study of Torah, connecting to God’s Torah both in body and in mind, will help cultivate a sense of something that exists beyond our physical world. Although his did not follow the traditional Jewish conception, even Albert Einstein believed in God.

As a community, we must do a much better job in cultivating belief in God and Torah. Even for those who believe in the truth of our core principles of faith, these often remain abstract concepts, apart from a felt religious experience that nurtures a person and shapes the way he or she engages the world. Perhaps our overly intellectual bent leads us to conceptualize belief in terms of fact statements, as something that can be approached rationally and either proven or disproven. In an age of skepticism, one in which the books of the “New Atheists” regularly top the best-seller lists, this focus is neither wise nor healthy. As parents, teachers, and rabbis who care about emunah and its centrality in our religious lives, we must find ways to cultivate a living religious faith in our homes, schools, and synagogues.

Let us now turn to your question regarding whether the wine that you touch becomes un-kosher. As this topic intersects many important issues of personal status, it is worth going into it at length. I will first look at the specific issues relating to the wine of non-Jews and whether the wine of a Jew could ever be considered stam yaynam. From there we will explore at greater length the status of mechalel Shabbat, specifically as it applies to stam yaynam, before turning to the issue at hand: the status of a non-believer in general and specifically as it applies to the issue of wine.

Stam yaynam

The rabbinic prohibition of stam yaynam, wine produced or touched by non-Jews, emerges from two concerns. First, that drinking the wine of non-Jews will lead to intermarriage, what the Talmud refers to as “marrying their daughters” (Bavli, Avoda Zara, 36b), and two, that the wine may have been poured as a libation to a foreign god (Mishna, Avoda Zara, 2:3; Bavli, Avoda Zara, 29b). The first reason would only prohibit drinking the wine, whereas the second would also prohibit deriving benefit from it, as is the status of foods and objects associated with avoda zara, the worship of foreign gods (Tosafot, Avoda Zara, 29b, s.v. yayin). In practice, this difference plays out regarding different types of non-Jews. When it comes to non-Jews who are considered by halakha to be worshippers of avodah zara, one may not even derive benefit from their wine, but when it comes to non-Jews who are not worshippers of avodah zara, one is forbidden to drink their wine, but one would be permitted to derive benefit from it (see Rambam, Laws of Forbidden Foods, 11:7) [1]. This is significant for our discussion, as it demonstrates that the basis of a person’s status can be determined by the relevance of the categories for this halakha.

Can the wine of a Jew ever be stam yaynam?

Logically, then, there should never be a problem with wine touched by a Jew, even if the Jew is a non-believer, does not keep Shabbat, or does not otherwise observe halakha, assuming he or she does not worship foreign gods. There is no prohibition against marrying the daughters of such a person, and there is no concern that the wine was used in an idolatrous ritual. Nevertheless, we find in the Talmud that even the wine of some Jews can be forbidden. In Tosefta Hullin we read:

מפני שאמרו שחיטת המין ע”ז פתן פת כותי ויינם יין נסך ופירותיהן טבלין וספריהן ספרי קוסמין ובניהן ממזריןFor they said: animals slaughtered by a min are considered as having been offered to a foreign god, their bread is like the bread of Samaritans, and their wine is yayn nesekh, wine of idolatrous libations, their fruits are un-tithed, their scrolls are the scrolls of soothsayers and their children are mamzerim, born of adulterous union (2:20, quoted in Bavli, Hullin, 13a–b).

This passage, however, is not relevant to our case. As should be clear from the context, there seems to be a real concern over some form of idolatrous worship here. The meat is not just forbidden, it is considered a sacrifice offered to a foreign god. The wine is not just stam yaynam, rabbinically forbidden, but actually yayn nesekh, the Biblical category of wine actually offered to a foreign god. Rashi states explicitly that the concern here is one of actual idolatry (Rashi, Hullin, 13b, s.v. min):

מין – זה האדוק בעבודת כוכבים ומין ישראל חמור ממומר לעבודת כוכבים שהמין אדוק בה וכל מחשבותיו להA min is one who cleaves to idolatry, and a Jew who is a min is more severe than one who worships foreign gods, for the min cleaves to it, and all his thoughts are about it.

As scholars have pointed out, the min of the Talmud refers to sectarians, and when it appears in passages from the Christian period, it most often refers to Jewish Christians.[2] It is commonly known that Christianity was considered by the Talmud (Avoda Zara, 6a, in the uncensored text) and Rishonim—with the exception of Meiri—to be a form of avoda zara (see, for example, Rambam, Laws of Forbidden Foods 11:7; Rambam, Commentary to Mishna, Avoda Zara, 1:3; Tosafot, Avoda Zara, 2a, s.v. assur). Thus, when practiced by a Jew, this would be considered minut, sectarianism, with avoda zara elements. This passage, then, is not relevant to our case.

Section 1: Shabbat violators and stam yaynam

1.1.1 Mechalel Shabbat in the Gemara and Rambam

What needs to be addressed is Rambam’s position that a Shabbat violator is considered to be “like a non-Jew for all purposes” (Laws of Shabbat, 30:15; Laws of Eruvin, 2:16; Laws of Shechitah, 3:15; Laws of Lost Objects, 11:2; Laws of Divorce, 3:15–16). It should first be clarified that the “like a non-Jew” status does not mean, for example, that the marriage of such a person to a Jewish person is not binding (see Yevamot, 47b; Rambam, Laws of Marriage, 4:15). He clearly is halakhically a Jew. Roughly speaking, it means that he is invalid for any type of ritual role.

We will refer to this status—whether applied to a Shabbat violator or a non-believer—as a “status of disqualification.”

When it comes to the Shabbat violator, the status that he is “like a non-Jew” is often taken for granted in halakhic writings. And, indeed, following Rambam, Shulkhan Arukh invalidates a Shabbat violator from being a ritual slaughterer because “his legal standing is the same as that of a non-Jew” (YD, 2:5). However, no such statement appears in the Gemara. In fact, there are only two passages in the Gemara that deal with the halakhic status of the מומר לחלל שבתות בפרהסיא, the mumar,[3] alienated person, who publicly violates Shabbat. Rav Nachman, in Eruvin (69a–b), states that one who violates Shabbat publicly has the status of a ישראל מומר, a Jew who is a mumar.[4]  The Gemara has two explanations for the scope of this status. One is a limited, local application to the laws of eruv. [5] The other, quoted in the name of Rav Ashi, is that his status is the same as one who is an idolater, and presumably, that this status of disqualification applies to all areas of halakha (see Rashi, 69b, s.v. Rav Ashi amar).

The Gemara in Eruvin does not explicitly rule like Rav Ashi, although it does discuss his position at length, indicating that the ruling is in accordance with his position.  More significantly, in a parallel sugya in Hullin (5a), the Gemara takes Rav Ashi’s position for granted.  Thus, almost all Rishonim[6] rule like Rav Ashi, that a Shabbat violator has the same status of an idolater.

The Shabbat violator, like the idolater, is thus seen as a מומר לכל התורה כולה, a mumar in regards to the entire Torah, that is, someone who has fully stepped outside the faith. Rambam describes such a person as:

החוזר לדתי הגוים בשעה שגוזרין שמד וידבק בהם ויאמר מה בצע לי להדבק בישראל שהם שפלים ונרדפים טוב לו שידבק באלו שידם תקיפהOne who turns to the faith of the Gentiles when they enact decrees of religious persecution, and he clings to them, saying: “What value do I have to adhere to Israel, for they are debased and pursued.” It’s better for him to cling to those who have the upper hand (Laws of Repentance, 3:9).  

Even when it comes to such a person, however, it is not stated that he is “like a non-Jew,” and it is not stated explicitly in what areas of halakha the status of mumar would be relevant. In fact, the Gemara only discusses the impact of this status of disqualification in terms of two laws: he cannot be a shochet, a ritual slaughterer, and we would not accept sacrifices from him (Hullin, 4b–5a)[7]. The refusal to accept his sacrifices is a good indication that he is seen as outside of the community, and most probably excluded from a broad range of other roles as well. Nevertheless, the exact scope of this is not discussed in the Gemara.[8]

Rambam expanded this status of the Shabbat violator in two ways. First, he stated that the status of a Shabbat violator was “like a non-Jew,” a more thoroughgoing status of exclusion than is implied by the Talmud’s mumar who rejects the entire Torah.[9] He also wrote that this status applies li’khol davar, for all halakhic matters, and then went on to apply it to other areas of halakha. While the Gemara was not clear what areas a mumar would be excluded from, it is very clear what areas a non-Jew is excluded from. By stating that the Shabbat violator was “like a non-Jew in all areas,” Rambam gave him a more severe status of disqualification and broadened the scope of his exclusion. For Rambam, at least in principle, such a person is categorically excluded.

Although Rambam made this categorical statement, it is not clear if Rambam actually ruled this way across the board. He explicitly invalidates a Shabbat violator in a very small number of cases and only in one place that is not stated or implied in the Gemara, namely, in a bill of divorce: a Shabbat violator, according to Rambam, cannot be the scribe of a gett. This ruling, however, may have more to do with his intent when writing a gett than with his personal status (Laws of Divorce, 3:15–16).

In fact, Rav Moshe Feinstein (Iggrot Moshe, Orah Hayyim, 1:33), in ruling that a Shabbat violator can count towards a minyan, writes that each area of halakha should be assessed separately to determine whether this status is relevant:

והנה מדינא אף שמחלל שבת בפרהסיא הוא כמומר לעכו”ם ומטעם זה סברי האחרונים דפסול לנשיאת כפים… אבל יש לפקפק בזה טובא כי לא כללא הוא לכל הדברים, ואין עתותי עתה בידי להאריךStrictly speaking, although a Shabbat violator is like one who worships foreign gods, and because of this many Acharonim rule that he is invalid to do the priestly blessing [and this, therefore, should be how we rule]….But this can be seriously questioned because it is not a categorical statement for all matters. But I do not have the time now to develop this point at great length.

The general assumption of poskim remains, however, that a Shabbat violator has the status “like a non-Jew” in all areas of halakha, particularly for more ritual considerations. Even so, it should be noted that there are many who rule that this status is only rabbinic in nature (see Yabia Omer 1, YD, no. 11, sections 1–10).

1.1.2. A mumar who touches wine: Ran and Rambam

If we rule that a Shabbat violator has the status “like a non-Jew,” this raises the question of whether his wine should be treated as stam yaynam. There are two approaches here. The first is the formalist approach: if he is defined as “like a non-Jew” then all laws that apply to non-Jews would apply to him, and his wine would be forbidden. The second is the non-formalist approach. This would hold that, regardless of his general status, things are different when it comes to the prohibition about wine. In this case there are two specific and concrete reasons given for the prohibition, marriage and idolatry, and neither is relevant. Here, at least, this status should not apply.[10]

This formalist approach was articulated by Ran who writes:

אי מומר לע”א הוי מומר לכל התורה כולה כיון דכגוי גמור הוא בכלל גזרתן הוא אע”פ שאין בבנותיו איסור חתנות מן התורהIf one who is a mumar for idol worship is considered as a mumar for all matters in the Torah, then since he is considered [by halakha] as a complete non-Jew, he would be included in [the Rabbis’] edict [prohibiting wine of non-Jews], even though there is no Biblical prohibition to marry his daughters (Chidushei haRan, Hullin, 4b, s.v. may shna shtiya).

In other words, although the reasons of stam yaynam would not apply to the mumar in question, this person’s wine is still forbidden because he is formally defined as a non-Jew (see also Teshuvot Rashi, 169).[11]

While Ran states that the wine would be forbidden, this is not a necessary outcome of the formalist approach, nor is it necessarily consistent with how later halakha has ruled on similar cases. Poskim have pointed to the ruling of Rema (YD, 124:2)—which is, in fact, a matter of debate—that a ger toshav, a non-Jew who keeps the seven Noachide mitzvot, does not make the wine he touches forbidden (if he actually produced the wine it would be forbidden). It is hard to imagine how a Jew who is a Shabbat violator should be considered more “like a non-Jew” than a ger toshav, an actual non-Jew (in this regard, see Responsa Shevet HaLevi, 2:53). Similarly, when it comes to wine that is poured but not touched by a non-Jew who is not an idolater, Shulchan Arukh rules that it is also not forbidden (YD, 124:6, read together with 125:1; see also Shakh, 125, no. 1). Again, it would be hard to see how a Jew who was a Shabbat violator would present a more problematic case.[12]

In contrast to this formalist approach, Rambam himself writes in a teshuva regarding Karaites:

ויינם לפי שכלי אין בו צד אסור שהרי יין כותים היה כבר בחזקת היתר לישראל עד שמצאו להם דמות יונה בהר גריזים… אבל הקראים אין ביינם שום איסורBut regarding their wine, it is my opinion that there is nothing prohibited about it. For behold, the wine of the Samaritans was presumed to be permissible for an Israelite, until the Rabbis discovered an image of a dove [that they worshipped] at Mt. Gerizim…. But regarding the Karaites, there is nothing prohibited about their wine (Responsa of Rambam, Blau edition, 449).

Rambam demonstrates that, according to the Talmud, the wine of the Samaritans was permitted before they became an idolatrous sect. The Samaritans were a sect that did not observe all of the mitzvot and did not accept the Rabbinic interpretations of the Biblical laws. In this way they can be seen to serve as a halakhic model for the later Karaites.[13] Thus, the Talmudic ruling that their wine was not permitted can be applied, says Rambam, to the Karaites in his day. It could be argued that this ruling would not necessarily extend to a full Shabbat violator, but this does point to an approach that, barring the case of an idolatrous sect, a Jew’s wine, no matter his practices or beliefs, would not be stam yaynam and not be forbidden.[14] In keeping with this, Rambam never states in Mishnneh Torah that the wine of a Shabbat violator would be forbidden.

To summarize the above, Rambam, who rules that a Shabbat violator is “like a non-Jew” in all matters, actually only applies this status explicitly in a small number of cases. And when it comes to wine, he rules that the wine of Karaites is kosher and never rules that the wine of a Shabbat violator should be considered un-kosher.

1.1.3. Contemporary poskim who follow the non-formalist approach: Hatam Sofer, Hazon Ish, Rav Moshe

In keeping with this, there are a number of contemporary poskim who follow this non-formalist approach, stating that stam yaynam should, at least in principle, not apply to Shabbat violators because the concrete reasons on intermarriage and idol worship are irrelevant.

For example, we find Hatam Sofer ruling:

והכא מה שעושה יי”נ אינינו משו’ חתנות כי מותר להתחתן בבנותיו ולא משום לתא דע”ז אלא משום קנסא עשאוהו כגוי עע”ז וע”כ אין להחמיר כ”כAnd in this case (of a Shabbat violator who is not doing it li’hakhis, to provoke God’s anger), the ruling that he makes yayn nesekh is not because of marriage, for it is permissible to marry his daughters. It is also not because of concerns of idolatry. Rather it is due to a fine [emphasis added] that they made him like an idolatrous non-Jew. Thus, we should not be so strict in the application of this halakha (Responsa Hatam Sofer, YD, 120).[15]

The idea that this is a “fine” or a “penalty” is new one, but Hatam Sofer seems to be saying that this is more a matter of policy than of strict halakha.

Similarly, in a responsum of Rav Moshe Feinstein printed after his death, we read:

ובעצם לא מצינו בפוסקים שמומר לשבת עושה יין נסך. אך בב”י סימן קי”ט הביא מתשובת הרשב”א בשם הר’ יונה, דמומר לחלל שבתות בפרהסיא או שאינו מאמין בדברי רז”ל הוא מין ויינו יין נסך, והובא בנקה”כ ריש סימן קכ”ד על הט”ז סק”ב. אבל אף שהביא זה הב”י לא הזכיר בש”ע, והנקה”כ לא הזכיר זה בש”ך, שא”כ משמע שלא מבורר להו לאסור ממש. אבל עכ”פ לדינא נהגו שלא לשתות יין שנגע בהו ישראל מומר לחלל שבתות בפרהסיא…וגם לא ידוע אם המנהג הוא לכו”ע או רק יראי שמים נוהגים לאסור בזהIn fact, we have not found in the poskim that someone who is a mumar in regard to Shabbat makes wine forbidden (yayin nesekh). However, in Beit Yosef (YD, 119) he cites from the Teshuvot haRashba in the name of Rabbeinu Yonah that a mumar who publicly violates Shabbat, or someone who does not believe in the words of the Rabbis, is a min and his wine is yayin nesekh, and this is quoted in Nekudat HaKesef (YD, 124 on Taz, no. 2). However, although [Rav Yosef Karo] quotes this in Beit Yosef, he does not mention it in Shulchan Arukh, and the Nekudat HaKesef himself did not cite this in the Shakh (his main commentary on Shulchan Arukh). Thus, it seems that the matter is not clear that it is a real prohibition. Nevertheless, in practice the custom is not to drink wine touched by a mumar who publicly violates Shabbat….It also is not known whether this is a custom that is universal, or if it is only those who are God-fearing who have the practice to forbid this wine (Iggrot Moshe, OH, 5:37).

Here, Rav Moshe seriously questions if the practice not to drink wine touched by a Shabbat violator is anything more than a custom of particularly punctilious people. It should be noted, however, that in other responsa, Rav Moshe adopts a stricter position, assuming that such wine is forbidden according to halakha (see Iggrot Moshe ,YD, 4:58.3, and OH, 3:22).
Hazon Ish is also skeptical of categorizing the Shabbat violator as a non-Jew for purposes of stam yaynam. He writes:

ומיהו מין של חילול שבת או לכה”ת ואינו עובד כו”מ היה נראה דיינו מותר דהא נכרי שאינו עבוד עכו”ם יינו מותר בהנאה… ואינו אוסר אלא בשתיה משום בנותהים וכיון דבמין לחילול שבת ליכא לא משום בנותיהן ולא משום ניסוך אין לנו משום מה לאסור יינו, ובר”מ לא הזכיר לאסור יינו של ישראל מומר שאינו עובד עכו”ם.  ואמנם בב”י יו”ד ס’ קי”ט הביא תשובת הרשב”א שפשוט לו דמחלל שבת בפרהסיא או כופר בדברי רז”ל עושה יי”נ ולא נתגלה מקורוNevertheless, regarding a min in regards to Shabbat, or for the entire Torah, who does not worship foreign gods—it would seem that his wine should be permitted. For in the case of a non-Jew who does not worship foreign gods, one is permitted to derive benefit from his wine, and one may only not drink his wine because of the concern of intermarriage. Now since in the case of one who is a min in regard to Shabbat there is no prohibition to marry his daughters and no concern for wine poured as an idolatrous libation, we have no basis to make his wine forbidden [at all]. And Rambam never mentions a prohibition regarding the wine of a Jew who is a mumar but not an idolater. Nevertheless, Beit Yosef in YD, 119, cites from the responsum of Rashba that it is obvious to him [Rashba] that the wine of a public violator of Shabbat or one who denies the words of the Rabbis would be yayn nesekh, but the source of this ruling has not been revealed (Hazon Ish, Yoreh Deah, 2.23).

Hazon Ish demonstrates with the case of the non-idolatrous non-Jew, from whose wine one may derive benefit, that someone would only make his wine forbidden if the reasons for the prohibition are relevant to his status. Thus, the wine of a Jew who is a Shabbat violator should be fully permissible. He also notes that Rambam’s silence on the matter would indicate the same.
All the poskim quoted above state that there is not a good logical or textual basis to forbid such wine, and yet they also acknowledge that the practice is to not drink such wine. However, given that, strictly speaking, this may not be required by halakha, they are willing to be lenient when necessary (see also Yabia Omer 1, YD, no. 11, and ibid., 5, YD, no. 10, for citations of other poskim who adopt a lenient approach for similar reasons).

Both Rav Moshe and Hazon Ish refer to the teshuva of Rashba quoted in the Beit Yosef, which would forbid the wine of Shabbat violators, but they argue that his position is not necessarily adopted in halakha. A further analysis of this responsum and the related discourse will show that there are other reasons why even were we to adopt Rashba’s position, it may not be relevant to our case. We now turn to look at the teshuva of Rashba.