11 Shevat: Including Non-Religious Jews in a Minyan, and Its Discontents

On the 11th of Shevat, 5712 (1952), R. Isaac Herzog, z”l, the first Ashkenazic Chief Rabbi of the State of Israel, answered a question about including non-religious Jews in a minyan.  The question, published in Heichal Yitschak Orach Chayim 2, came from Copenhagen, from R. Ib Nathan Bamberger, whom I have come to know personally. R. Bamberger later moved to the United States and served for decades as a rabbi in the Bronx, and has published a book about Danish Jewry (The Viking Jews) as well as one about the Kingsbridge Heights Jewish Center, A Bronx Palace of Torah.

In 1952, he was still a young man, one of the Jews whom righteous local Danes had ferried to Sweden in fishing boats to avoid Nazi deportation.  He approached R. Herzog about the propriety of counting a non-religious Jew towards the ten for a minyan.  A man had asked in his will that his home become a synagogue, and had bequeathed an endowment to ensure continuing services there.  Over the course of time, securing a minyan had become difficult, to the point that they would have to hire non-religious Jews to get to ten. 

Are Non-Religious Jews Eligible to Count Towards a Minyan?

The first part of the question is whether it is even possible to include non-religious Jews.  In several contexts, traditional halachah considers those who violate Shabbat in public to be equivalent to those who worship idols.  I hasten to add that R. Herzog will agree with what we all assume today, that public Sabbath violation carries different connotations today than it did back then.  Watching his reasoning is nonetheless productive, since it reminds us of the kind of calculus halachah needs to go through to come to that conclusion.

First, R Herzog notes a reason to suspect they could not count towards the quorum.  Rambam rules, in Hilchot Ma’aseh haKorbanot 3;4 that such a sinner’s sacrifices would not be accepted in Temple times. That is, if a Jew who did not keep Shabbat in publicly obvious and identifiable ways were to try to offer a sacrifice at the Beit haMikdash, the Temple, the priests would be required to send him away without offering it. 

Considering that we often assume that prayers are in the place of sacrifices, we might extrapolate to say that just as such a Jew’s sacrifices are rejected, so are his prayers, and therefore he cannot be part of a minyan.

It’s Not So Easy To Exclude Jews from a Minyan

R. Herzog accepts the first half of that contention, that such a Jew’s prayers will be rejected by God (until he repents), but not the extension to minyan.  He argues, first, that if the non-religious Jews are the minority, they do not set its character, and therefore they can count.  That itself is interesting, in that it assumes that only a minority of such Jews should be included in a minyan.  Were they to be the majority, he implies, that might indeed be a problem.

R. Herzog stresses that they are still Jews, just sinners, but notes evidence to the contrary.  For example, R. Yehudai Gaon ruled that no halitsah (the ceremony a widow would conduct with a brother-in-law in a case where her husband had passed away without children) was required where the only living brother(s) had abandoned Jewish observance. R. Herzog notes that R. Yehudai Gaon cited particular Biblical inferences to justify that ruling, with no contradiction to the general principle that a Jew is a Jew, no matter how much s/he sins. 

He similarly insists that each time sources characterize Jews who have abandoned the religion as being equivalent to non-Jews, it is as the result of a specific and limited Biblical statement or rabbinic decision.  Thus, despite the fact that some authorities ruled that a non-observant Jew’s marriage would be invalid according to Torah law (meaning it would not create any Biblical change in the purported wife’s status), R. Herzog did not see that as relevant.

Although We Do Exclude Some Jews

In the case of minyan, he does note cases where we exclude even mostly observant Jews, such as where a Jew has been put into nidui.  I have mentioned that stage of excommunication before (in an earlier email, when Rivash thought those opposed to a new synagogue deserved nidui for trying to stop others from performing a mitzvah). Let me spend a moment more here, because I think it encapsulates a lost aspect of what an ideal Jewish community included.

A person who was in nidui was cut off from the community, to some extent. Those who were empowered to administer nidui—Torah scholars and courts—could determine that certain behavior was so egregious as to require public response. It stopped being effective when Jews in nidui could ignore it, either because the community itself wouldn’t act on the rabbi or court’s ruling, or because that person could simply go elsewhere, either to find a new community or abandon their communal connection.

When it still worked, though, it could be an effective way to enforce communal standards of behavior and participation. Once each individual has full autonomy to decide what s/he thinks is right, we have the situation we have today, bemoaned already in the Book of Judges, where everyone does whatever they think is right, despite the obvious fact that most of us have no clue as to what is right and wrong.

One of the effects of nidui was that the person could not join the minyan; shouldn’t that obviously extend to a Jew who is completely out of the pale? Not so much, R. Herzog says, since the point of nidui was to show a Jew where s/he had gone wrong, to encourage him or her to improve (another reason the practice fell into disuse, since so few people were experiencing it that way). For the mumar, that was clearly not a relevant consideration.

We Don’t Make Mumars Like We Used To

Then R. Herzog notes several of the common lines of reasoning to distinguish public Sabbath violation in our time from Talmudic times.  He starts with the Shach in Yoreh Deah 119, who was commenting on the ruling that a Jew who adopts idolatry renders non-cooked wine unacceptable for drinking– just as a non-Jewish idolater does. Shach noted that someone who worships idols because of pleasures derived from it (such as converting to idolatry for the business connections, or for the jokes), might not have the same effect on kosher wine.

Similarly, some authorities ruled that Jews who abandon Sabbath observance solely for business reasons, but remain observant in other ways, such as by wearing tefillin daily, praying, and keeping kosher (which was the case that R. Bamberger was discussing, since these people were coming daily to services), did not have the same status as those who abandoned observance in Talmudic times. Others ruled that if a Jew lives in a place where most Jews are nonobservant that, too, would take away the sting of his or her lack of observance.

The reason for that, according to R. Herzog, is that the opprobrium attached to public desecration of the Sabbath is its implied denial of God’s having created the world in six days. Shabbat is an ot, a sign, of our faith in Creation (however it occurred, with the idea of six days of creation and one of rest relevant to that occurrence); in an area where violating Shabbat does not carry the implication of denial of that truth, it loses its full status. I note that R. Herzog seems to imply that if a Jew were to clearly deny that truth—as I’ve known even Orthodox Jews to do—then, certainly, we would have to treat such a person as a full mumar, even today.

But Why Include Them?

R. Herzog then does a striking about-face.  Without stepping back from any of his conclusions, he questions the value of keeping this struggling minyan going, where it will be necessary to secure the services of nonobservant Jews. He assumes as obvious that the man who had passed away would prefer that his funds go to fostering services populated by Jews striving for full observance, and therefore encourages (he calls it a mitzvah) shutting down that minyan and diverting the funds—including, perhaps, endowing a new set of Torah study classes in the deceased’s memory– to whichever of the existing synagogues R. Bamberger thinks will use the funds best.

It is how obvious he assumes his conclusion that I find most striking. I can imagine the deceased being adamant that he wanted his money going for a minyan in his house, no matter how it was constituted. We might disagree with his decision, but it was his money. R. Herzog is not only certain he is right to prefer the established minyan, he is certain the deceased would have agreed. Because whether or not we include nonobservant Jews in a minyan—as the minority or majority—R. Herzog is reminding us of the spiritual costs and ramifications in doing so.

Tags: , , ,

Mr. Martin Kaufman was educated at Yeshiva Universty and New York University"s Graduate School of Business Administration. Was Chairman and CEO of Philipp Brothers, formerly one of the world's largest commodity trading companies. He is a global consultant to entities in the financial and natural resource sectors all over the world. Mr. Kaufman has lectured extensively in numerous Adult Education programs for many years and presently gives shiurim in the New York City area. He has also served on two boards of Yeshiva University, amongst many other Boards. Mr. Kaufman lives in Manhattan with his wife and three children.

Comments are closed.