Rosh HaYeshiva, Har Bracha
Due to the severity of the desecration of Shabbat, it was ruled that wine touched by a public desecrator of Shabbat is forbidden to drink * In recent generations society has changed, creating a situation in which the public desecration of Shabbat does not indicate a break with Jewish identity * Therefore, be-di’avad, one is permitted to drink from wine touched by a public Shabbat desecrator, as long as he does not intend to defy Judaism * In any event, one should not go beyond halakha and prohibit wine poured or transferred by a Shabbat desecrator * When it comes to a mitzvah, such as a Shabbat meal or a wedding, even l’chatchila, the wine may be consumed
A Jew who Publicly Desecrates Shabbat
Shabbat desecration is considered especially grave, to the point where our Sages said that a korban (ritual sacrifice) should not be accepted from a Jew who publicly violates Shabbat, his ritual slaughter is not considered kosher, and when all the residents of a chatzer (courtyard) want to make an eruv chatzerot, he invalidates the eruv as a non-Jew (Chulin 5a; Eruvin 69b). According to this, Rambam (Maimonides) wrote: “The observance of Shabbat and the prohibition against worshiping false deities are each equivalent to the observance of all the mitzvot of the Torah. And Shabbat is the eternal sign between the Holy One, blessed be He, and us. For this reason, whoever transgresses the other mitzvot is considered to be one of the wicked of Israel, but a person who publicly violates Shabbat is considered as an idolater. Both of them are considered to be equivalent to non-Jews in all regards” (Laws of Shabbat 30:15).
A Shabbat Desecrator who Touched Wine
According to this, some Rishonim wrote that wine touched by a Jew who publicly desecrates Shabbat is asur (forbidden) similar to the law of wine touched by a non-Jew who is not an idolater, namely, it is forbidden to drink, but mutar b’hanah (one may receive benefit from it) (Bahag, Rabbeinu Yonah, Eshkol, Rivash, and others). In other words, wine touched by an idolater is asur b’hanah, and if it was touched by a non-Jew who is not an idolater, or a Jew who desecrates Shabbat, the wine is forbidden to drink, and mutar b’hanah.
Indeed, this law is not mentioned in the Gemara, and many Rishonim did not mention it, therefore, some poskim are of the opinion that halachically there is absolutely no prohibition of wine touched by a public Shabbat desecrator (Responsa of Rashi 169; Rabbi Chaim ben Atar). On the other hand, some are stringent and believe that the halakha of a public Shabbat desecrator is the same as an actual idolater, and that the wine touched by him is also asur b’hanah (Tvuot Shur 11:12). However, the vast majority of Achronim agreed that according to halakha, wine touched by a public Shabbat desecrator is forbidden to drink, but mutar b’hanah.
This was the custom for many generations, for indeed, Shabbat was the clearest expression of Jewish identity, and anyone who dared to publicly desecrate Shabbat exhibited a terrible defiance of Israel’s faith, and openly announced to the world that he did not identify with Judaism.
The Question in Recent Generations
However, in recent generations, many Jews were influenced by non-Jews, to the point where a situation was created in which Shabbat was no longer the expression of Jewish identity. In addition, if in the past protesting against the desecrators of Shabbat helped prevent them from violating the rules, in recent generations, it distanced people instead of bringing them closer. Therefore, b’shaat ha’tzorech (when necessary), many of the latter poskim ruled leniently, and instructed that only someone who desecrates Shabbat flagrantly in order to spite and defy Israel’s traditions, is considered to be equivalent to a non-Jew. However, someone who respects Shabbat by making Kiddush and by lighting Shabbat candles is not considered to be equivalent to a non-Jew. Furthermore, if he is a Jew who has not received Torah education, since he does not understand the severity of desecrating Shabbat, he is anus (lit. ‘forced’), and is similar to what our Sages said about a tinok shenishba (a Jew raised without an appreciation for the thought and practices of Judaism), namely, that all of his Shabbat desecrations are considered as if he was anus. And even if he grew up in a religious home, sometimes secular influence is so strong to the point where he is close to being considered shogeg (not on purpose) and anus, for he cannot resist the spirit of the times. Additionally, the concern that stringency in this issue may cause insults and disagreements in families and communities should be taken into account.
The Strict and Lenient Opinions
True, there are some poskim who are machmir (strict) and are of the opinion that precisely today we must be more stringent, in order to prevent Shabbat desecrators from influencing observant Jews (Pri Ha’sadeh 1: 62; Minchat Yehiel 1:105; Minchat Elazar 1: 74; Yaskil Avdi Vol. 8, Y.D. 19; Tzizt Eliezer 12:56).
In practice, however, the accepted view of most poskim is that in order to prevent insult and maintain the proper brotherhood amongst Jews, for various reasons, fundamental and secondary, one should not be machmir regarding wine touched by a Shabbat desecrator, as long as they do not do so le’hachis (one who transgresses as to anger) (Yehudah Ya’aleh, Y.D. 50; Binyan Tzion Chadashot 23; Uri Ve’yishi 100; Melamed Le’Hoeil, O.C. 29, Y.D. 52; Maharsham 1: 121; Livushei Mordechai, Achiezer 4: 37: Sho’el Ve’Nishal 3:216; Chelkat Yaacov, Y.D. 58; Otzer Ha’Michtavim, Vol. 2; Beit David 1:132; Iggrot Moshe, O.C. 5:37; Yabiyah Omer Vol. 1, Y.D. 11; L’Harot Natan 1:39; Asei Lecha Rav 2: 51, and many others).
Halakha Summary
The halakha goes according to the lenient poskim, who are of the opinion that in order to prevent insult and maintain the proper brotherhood amongst Jews, b’shaat ha’tzorech, one may be lenient and drink wine touched by a Jew who publicly desecrates Shabbat. The more respectful he is of Jewish tradition, the more room there is for the heter. On the other hand, the more the Shabbat desecrator knows the severity of the prohibition and does not respect tradition, there is less room for the heter. But after all, as long as the public Shabbat desecrator feels some Jewish identity, and does not violate Shabbat le’hachis and to vex those who observe tradition, be’di’avad (after the fact), one may drink the wine he touched.
And if the wine is pasteurized, there is another reason one may be lenient, for some poskim are of the opinion that pasteurized wine is considered mevushal (cooked), which is not prohibited if touched by non-Jews.
Stringencies Created by Mistake
Due to widespread ignorance of these laws, even Torah students do not know the halakha, and are more stringent than necessary according to the rules of halakha, as will be explained.
Many people make the mistake of thinking that one has to be careful a Shabbat desecrator does not pass a glass of wine from one side of the table to the other, but do not realize that even if a non-Jewish idolater were to do this, the wine would be kosher.
I will expound upon this a bit. It is agreed that wine is forbidden by contact, but the Rishonim disagree whether it is forbidden by shich-shuch, that is, shaking the glass firmly to shake the wine in it. There are those who prohibit, because in their opinion, this was also the way in which the non-Jews would worship idols (Rambam, Rivom, Ramban, Rosh, Shulchan Aruch and R’ma 124:17); others permit, and are of the opinion that only actual contact makes the wine forbidden, and not shich-shuch (Ravad, Rashba, Riv, Meiri, Revash, Maharashdam, Bach, Taz, and Knesset HaGedolah).
When the person who shakes the wine is a goy oved avodah zara (a non-Jewish idolater), l’chatchila (ideally) we act according to the strict opinion, but this is on condition that the non-Jew shook the wine without reason, because this was the way idol worshippers poured wine to their gods. But if the non-Jew lifted the glass and moved it to another place, or even climbed up stairs with it, even though the wine moved firmly in the glass, because it shook due to walking – the wine is permitted (S. A., Y. D. 125:10; Drisha 5:16; Rashdam, Rashal, and others).
Kal v’chomer (all the more so) when it comes to a non-Jew who is not an idolater, for even if he actually shook the wine without reason, the wine is permissible. All the more so when it comes to a Jew who violates Shabbat, where the poskim disagree whether he is considered as a non-Jew.
Pouring Wine
Many mistakenly think that if a Shabbat desecrator poured the wine it is forbidden, but they do not know that even if a non-Jew did so, according to the majority of poskim, the wine is kosher. For only if a non-Jewish idolater pours wine from a bottle to a glass, the wine in the glass is forbidden to drink, but mutar b’hanah. In this case, the poskim disagreed about the wine remaining in the bottle, and the halakha is ruled by the majority of poskim who are of the opinion that even the wine remaining in the bottle is forbidden to drink (because of the joining of “nitzoke”). But if the pouring was done from a barrel of wine, since this is a great loss, we rely on the opinion of the poskim who permitted the wine remaining in the barrel (S. A. and R’ma, Y. D., 125:1; 126:1-2).
If a non-Jew who is not an idolater pours from a bottle into a glass, in the opinion of many poskim, the wine in the glass and the bottle are permissible (Shach 124:11; D’gam, Rabbi Akiva Eiger, Aruch HaShulchan, Ish Matzliach, Chazon Ish). And some poskim are machmir, and prohibit drinking the wine in the glass, but permit the wine remaining in the bottle (Taz, Yabiyah Omer, Y.D. 1:11). And even though according to the rules of halakha we should rule according to the opinion of the lenient poskim, many people tend to be machmir, and some are even machmir regarding the wine remaining in the bottle.
But if the pourer is a Jew who publicly desecrates Shabbat, whose status, as we have learned, is disagreed upon, without doubt the halakha goes according to the vast majority of poskim who ruled leniently, permitting to drink the wine he poured into the glass. Kal v’chomer, if the public Shabbat desecrator only opened the bottle, there is absolutely no problem with the wine remaining in it.
Drinking from the Same Glass
In practice then, the problem is when a public Shabbat desecrator drank from the glass, since according to the stringent poskim he is considered as a non-Jew, the wine remaining in the glass is forbidden to drink.
In addition, in the opinion of the stringent poskim, it is forbidden to employ workers who publicly desecrate Shabbat in the wine-making process, since occasionally while working, they need to touch the wine with their hands. And although according to the opinion of the lenient poskim it is permitted, since even they were lenient only be’di’avad, wineries employing public Shabbat desecrators are not granted kashrut l’chatchila.
When Dealing with a Mitzvah, One May be Lenient L’chatchila
It seems another important element should be added: Although the general heter to drink wine that a public Shabbat desecrator drank from is be’di’avad, when dealing with a mitzvah – such as a Shabbat meal held according to halakha (without cellphones), a traditional wedding ceremony, or a festive wedding meal held in line with halakha, without mixed dancing – l’chatchila, all those attending at that moment may be considered as “kosher” Jews who respect tradition.
This is because they gathered there for the purpose of a mitzvah, similar to what our Sages said regarding amei ha’aretz (people ignorant of halakha), that when they ascend to Jerusalem on the Pilgrimage Holidays, they are considered as chaverim (those who fully observe halakha): “In Jerusalem, they are trusted regarding kodesh, and during the festival season, they are trusted regarding terumah, as well” (Mishnah Chagigah 3:6). And the reason in the Gemara is: “As Scripture says: ‘So all the men of Israel were gathered against the city, as one united company’ (in Hebrew, ‘k’ish echad chaverim’) – the verse itself made all of them chaverim” (Ibid. 26a).
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