Counting someone for a Minyan who does Maaseh Toevah

02.08.19

Question

Question:
I live in a small Jewish community where everyone knows each other. Someone new moved in an older single man. After numerous times of trying to set him up for a Shidduch it has come to light that he I not interested in woman, to say it nicely. Are we allowed to count him for minyan in the morning?

 

Answer

Answer:
If this man does not actually do any Aveirah, he just has different desires, there is no problem. If you know he is transgressing an aveirah with other men but he tried to keep it quiet and maybe is even embarrassed from it, he is considered a Mumar L’Teavon, one who transgresses Aveirot because it is too hard to control himself, and you may count him for a Minyan. However if he openly declares himself as ‘Gay’ then he is considered a Mumar L’Hachis, one who transgresses Aveirot brazenly, and you may not count him. If the Tzibbur feels it wants to make a protest and not count him no matter what, they may.

 Explanation:
The Gemara in Sanhedrin 26a: -- Rabbi Ḥiyya bar Zarnokei and Rabbi Shimon ben Yehotzadak were going to make a leap year in Asia. Reish Lakish met them and joined with them. He said I will go see how they do it  Reish Lakish saw a certain man plowing a field. He said to the other Sages: Look at this priest plowing during the Sabbatical Year. They said to him he could say I am a hired worker [agiston] in the field, which belongs to a gentile.(which is permitted.) 
Reish Lakish further saw a certain man pruning vines in the vineyards. He said to the other Sages: Look at this priest who is pruning vines during the Sabbatical Year. They said to him that he could say I need the branches to make a basket [ekel ] for my olive press (it is permitted for him to do so in the Sabbatical Year). Reish Lakish said to them: The heart knows whether he is doing so for a bale [ekel ], or whether he is saying this as deceit [la’akalkalot]. 

After Reish Lakish continually bothered them with his comments, Rabbi Ḥiyya bar Zarnokei and Rabbi Shimon ben Yehotzadak said: This one is a nuisance. In order to rid themselves of him, when they reached the location where they intended to intercalate the year, they went up to the roof and took the ladder out from under them so that he would stay below and would not be able to join them. 
Sometime later, Reish Lakish came before Rabbi Yoḥanan. Reish Lakish said to him: Are people who are suspected of desecrating the Sabbatical Year fit to make a leap year? (He believed that the two Sages who were sent to intercalate the year treated the sanctity of the Sabbatical Year with disrespect.) 
Reish Lakish then said in response to his own question: This is not difficult for me; just as the Sages made a leap year according to three cattle herders (see 18b), which was permitted, as the Sages did not depend on the assessment of the cattle herders but on their own calculation, perhaps here too the Sages depended on their own calculations and not on the decision of Rabbi Ḥiyya bar Zarnokei and Rabbi Shimon ben Yehotzadak. 
Reish Lakish changed his mind and then said: It is not similar. There, in the case of the cattle herders, afterward the Sages were counted, i.e., they decided, and made a leap year themselves. Here, by contrast, it is a conspiracy of wicked people, who are disqualified from doing so; and a conspiracy of wicked people is not counted. Rabbi Yoḥanan said: This is not correct.

The Gemara is clear that Reshaim are not allowed to declare a leap year. Some derive from here that they have a halacha of a person in Cherem and you may not count him towards a Minyan . The Gemara in Moed Katan 15a says that someone in Cherem is forbidden to get a haircut etc. The Rambam Hilchot Talmud Torah 7:4 writes: A person on Cherem is forbidden to get a haircut and to do laundry and we do not make him part of Zimun, nor do we count him as part of a Minyan…the Rambam added to the Gemara’s list of rules that it is forbidden to count him towards a minyan.
Some say that a Rasha who transgresses Aveirot , even though the Gemara does not say it, you can’t count him. The Rivash however argues that being an invalid witness or being able to give testimony about the moon which you need those worthy to be on the Sanhedrin, i.e. not doing Aveirot has nothing to do with Zimun or a minyan. Even  woman or a Kuti are allowed to be part of Zimun even though they are not valid witnesses. Only one in Cherem is not allowed because that is the nature of being Cherem, you are completely alone.
So rules the Shulchan Aruch Orach Chaim  55:11 and the Rema as well in  Yoreh Deah  334:2.
The Pri Megadim qualifies this though that it is only when he transgressed ‘LeTeavon’ , because he could not control himself, but a Mummar Lehachis, that he does an Aveirah to spite Hashem, or he worships Avoda Zara which is as if he does not keep the whole Torah, have the status of a Non-Jew and can’t be included.

It would seem then in our situation, if we are dealing with someone who hides what he is doing and that he ‘likes men’ and is embarrassed that he is not normal, then you may count him to a minyan. However if he is not embarrassed by what he does ,and just the opposite he is proud of it and Even HaEzer openly declares himself ‘Gay’, that is by definition  Mumar Lehachis. That he is transgressing to spite Hashem and His Torah. Also look in The Rambam Hilchot Teshuva 5: Someone who does Aveirot openly and is proud of it (B’Yad Rama) like Yehoyakim is called Megaleh Panim B’Torah.
Someone who is Megaleh Panim B’Torah is considered a Min and therefore would not be allowed to be included in Minyan.

However even in the case where the person is doing Aveirot in private the Tzibbur might decide to be more stringent. As the Rivash(371) writes that even though we are forbidden to count a person in Cherem, that man may still pray in the Bet Knesset. However not to allow him to pray in the Bet Knesset at all is hard to agree to it. Not even with a person in Cherem are we are stringent like that.
Of course if the congregation all decides this and decided to act harsher than the Gemara they can act according to what they accepted upon themselves. However in this case they did not accept upon themselves this  you are just doing it to publicize him…

The Rivash says that sometimes it is permitted for a Tzibbur to agree to rule much more stringent then what the Gemara guidelines. An individual can do the same the Tzibbur is learning from this person in order to publicize who Even HaEzer is. In our case if the Tzibbur decides not to count this man in a Minyan it is within their rights to make a stand and to make it clear this behavior is not acceptable.

 

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