I recently received a wonderful sefer written by Harav J. David Bleich shlit”a entitled “Contemporary Halakhic Problems Vol. 7”. In this sefer Harav Bleich discusses many topics, however, one in particular is extremely relevant to those in kiruv and that is drinking the wine touched by a non-observant Jew. I urge anyone to purchase this sefer (here is a link- https://www.korenpub.com/maggid_en_usd/contemporary-halakhic-problems.html) and learn that topics, and other topics, in depth.

The Source

Our Sages forbade all non-Jewish wine, or even wine that was touched by a non-Jew, as a precaution to avoid intermarriage (Avoda Zara 29). The Rishonim write that one may not even drink wine that was touched by Jew who publicly desecrates Shabbos (Bahag Shechita, Beis Yosef 119 citing the Rashba).

The Chasam Sofer (Y.D. 120, see also Har Tzvi Y.D. 105) wonders why the wine is prohibited if one may marry a Jew who desecrates Shabbos and there is no concern of intermarriage. He explains, based on the Gemara in Chullin (5), that if one serves Idolatry he is punished that he has the hallachic status of a non-Jew. Similarly, one who desecrates Shabbos in the presence of ten Jews has the halachic status of a non-Jew. The reason for this is that we keep Shabbos because Hashem rested on the seventh day after creating the world in the first six days. One who does not keep Shabbos is thereby questioning the fact that Hashem rested after creating the world. Therefore, one who desecrates Shabbos is akin to serving Idolatry and is therefore punished that he strictly treated as non-Jew in halacha. Since he has the status of a non-Jew his wine is forbidden, even though there is no concern of intermarriage. This same line of reasoning can be extended to prohibit the bread baked by a non-observant Jew.

Publicly Desecrating Shabbos:

However, the Poskim stress that there are many requirements that one needs to meet to be classified in hallacha as a “public” desecrater of shabbos. And if one fails to meet these requirements he is considered a “private” desecrater of shabbos and keeps his status of a Jew in hallacha. The following are some of those requirements:

The Baal Haitur (cited in Beis Yosef Y.D. 44 and Tashbeitz 3:43) writes that only one who violates shabbos through working the fields (planting, threshing etc.) is deemed a public desecrater of shabbos. One who violates shabbos in any other fashion keeps his hallachic status of a Jew. Rav Akiva Eiger zt”l (Y.D. 264 see also Daas Torah Y.D. 2:27) writes that he does not understand the reasoning of the Baal Haitur. He also notes that he no other posek shares the same view and it is therefore difficult to rely upon his opinion for a hallachic ruling.

The Chaya Adam rules that if one were to refrain from breaking Shabbos in front of a rabbi (or ones parents) he keeps the hallachic status of a Jew. It is clear that he feels a level of embarrassment for his actions and is not turning his back completely on his religion.17

כתבו הפוסקים דכל שבוש מלחלל שבת בפני אדם חשוב כגון רב וכדו’ אין דינו כמחלל שבת בפרהסיא לענין זה שחשיב כגוי. וכ”כ החיי אדם (כלל ע”ה ס”ק כ”ו): “ישראל מומר או רשע שמחלל שבת בפרהסיא, אפילו אינו מחלל אלא באיסור דרבנן, הרי הוא כנכרי וכו’ ואם מתבייש לחלל בפני אדם גדול, לא מיקרי בפרהסיא”. אולם המנחת אלעזר (ח”ג ס’ כ”ד) חולק עליו. ובספר הליכות שלמה חלק ג’ דף שכ”ה הביא מהג”ר שלמה זלמן אורבך זצ”ל וז”ל: “וה”ה כשבוש בכך בפני אביו או אמו וכדו’ ואינו מחלל שבת במחיצתם, וכהיום רבים מאלה שלצערנו אינם שומרי תומ”צ הריהם בכלל זה”. ועוד שם הביא מתלמידים וז”ל: “ומ”מ מה שנמנע מלחלל שבת בפני אחיו וכדו’ היה נראה מדברי רבינו דאין לראות זאת אלא כנימוס בעלמא ולא מפני הבושה וכו’ ואף לענין הנמנע מלחלל שבת לפני אדם חשוב, הורה רבינו דאם ניכר להדיא שהימנעותו היא אך ורק מפני הנימוס גרידא ולא מפני הבושה, אין להקל”.

Rav Akiva Eiger zt”l (ibid.) feels that one is required to violate shabbos in the presence of ten shabbos observant Jews and only then is he considered one who violated shabbos on a public level. Rav Moshe Feinstein zt”l (Y.D. 70) disagrees and explains that this hallacha applies even if one breaks shabbos in the presence of ten non-observant Jews.

The Achronim disagree if one violates shabbos through a rabbinic act (ex. Muktza) if he then has the status of a public desecrater of shabbos or does the hallacha apply only to those who desecrate shabbos on a biblical level.(see Radvaz 2:796, Rav Akiva Eiger Y.D. 2 and Yabia Omer 1 Y.D. 11:24)

Tinuk Shenishba:

Even one who desecrates Shabbos publicly according to all of the authorities may still have the status of a Jew in halacha, as we shall explain. The Rambam in Hilchos Teshuva (3:9), after defining minim, apikorsim, and kofrim as individuals who reject one of the many principles of Judaism, writes: “Among Israel, there are two categories of mumarim: a mumar in regard to a single mitzvah and a mumar in regard to the entire Torah. A mumar in regard to a single mitzvah is someone who has made a practice of willfully committing a particular sin [to the point where] he is accustomed to committing it… [This applies] even though [the sin] is one of the minor ones. For example, someone who has made a practice of constantly wearing sha’atnez or cutting off his sideburns so that it appears that, in regard to him, it is as if this mitzvah has been nullified entirely. Such a person is considered a mumar in regard to that matter. This applies [only] if he [commits the sin] with the intent of angering G-d. An example of a mumar in regard to the entire Torah is one who turned to the faith of the gentiles when they enact [harsh] decrees [against the Jews] and clings to them.”

In Hillchos Shechita (4:14), the Rambam writes that a Jew who serves idolatry or one who publicly desecrates shabbos is considered (in hallacha) like a non-Jew and if he slaughters, the animal is rendered a neveilah. Thus the Rambam has described people who are deficient in their observance of the mitzvos. It would thus seem that all non-observant Jews fall into one of these categories.

This would indeed be the case if not for a distinction made by the Rambam. The Rambam in hilchos Mamrim (3:3) writes the following: “To whom does this all apply? Only to a person who denied the Oral Law consciously and instead followed after his frivolous thoughts… The children of these errant people and their grandchildren whose parents led them away and they were born among these Karaities and raised according to their conception, they are considered as ‘children captured amongst the nations and raised by them’ (Tinokos Shenishbu). Such a child may not be eager to follow the path of mitzvot, for it is as if he was compelled not to. Even if later, he hears that he is Jewish and saw Jews and their faith, he is still considered as one who was compelled against observance, for he was raised according to their mistaken path… Therefore it is appropriate to motivate them to repent and draw them to the power of the Torah with words of peace.” The Rambam is thus telling us a very novel concept and that is, in order to determine the hallachic status of any Jew we must first inquire into the many different factors which have determined his development and behavior.

The Poskim have employed the opinion of the Rambam and have ruled leniently regarding many Sabbath desecrators that they remain their status of Jews. Rav Yehuda Ettlinger zt”l (Binyan Tzion 23) writes that the derogatory label of a public desecrater of shabbos, which implies brazen rejection of the belief in the Creation of the universe, cannot be attributed to many German Jews who lit candles, made Kiddush etc., yet openly violated the laws of the Shabbos. He writes: “The only reason a Sabbath violator is considered a mumar is because he who denies creation and the Creator as well. However, this person confesses his faith by prayer, Kiddush etc. Certainly the children of these people never knew and never heard of the laws of Shabbos and they are in all respects… like a tinok shenishba bein ha-akum. This is the case unless it is clear to us that a particular individual is familiar with the laws of Shabbos and brazenly desecrates Shabbos in the presence of ten men despite this knowledge. Such a person is definitely considered a mumar.”

This heter can obviously not be applied blindly to all non-observant Jews as there are many Jews who do not fall under the category of tinuk shenishba. This, like all halachos, requires discretion and the consultation of a noted posek.

It is also worthy to note the opinion of Rav Moshe Feinstein zt”l (Igros Moshe 1:33). Rav Moshe was asked how to determine the status of many Jews who believe that G-d Created the universe, however, due to fear of losing their livelihood are forced to work on Shabbos. He ruled leniently regarding the matter and his reasoning may be applicable to our discussion. He begins by explaining that the reason a “public” desecrater of Shabbos has the status of a non-Jew while one who desecrates shabbos privately receives no change of status, even though both acts are inherently the same. He explains that desecrating Shabbos is only considered a brazen act of kefira (heresy) if one does so to attack G-d and Judaism. If one does so for reasons of monetary gain and the like should not be classified as a non-Jew. Therefore, when one violates shabbos privately we are allowed to assume that he is doing so out of necessity and not as an act of aggression towards G-d. This leniency is not given towards a public desecration of Shabbos because the act itself is perceived by onlookers as an act of aggression and even if he is adamant that he is doing so for personal reasons we do not believe him. If that is the case, advances Rav Moshe, the argument can be made that even if one publicly desecrates Shabbos if it is clear to all the onlookers that he is doing so only for monetary reasons (which was the case at the time of Rav Moshe as many Jews would daven Vasikin, make Kiddush and then drive to work) he remains a Jew in halacha. The same argument can possibly be made regarding the vast majority of non-observant Jews. Since the average onlooker excuses their actions as being based on a lack of education of Judaism and its laws and not as an act of aggression towards G-d, we cannot classify them as non-Jews in halacha.

Practical Halacha

The poskim debate whether one may drink wine that is touched by a non-observant Jew. According to Harav Henkin zt”l (Peirushei Ibra 5:4) one may rule leniently. Harav Ovadia Yosef zt”l also defends those that rule leniently. This is especially true in light of the above mentioned heterim (tinuk shenishba etc.). However, many poskim, including Harav Moshe Feinstein zt”l, Harav Eliezer Yehuda Waldenberg zt”l, Harav Tzvi Pesach Frank zt”l, rule stringently on the matter. For normative halacha, a rav should be consulted.

 

For a full discussion on this topic see Sefer Umekareiv Biyamin vol. 1 page 212 (http://www.hebrewbooks.org/pdfpager.aspx?req=51347&st=&pgnum=236&hilite=). In addition,  I gave on the topic of drinking wine touched by a non-observant Jew, here is a link- (https://www.torahanytime.com/video/wine-touched-by-a-non-observant-jew/)