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August 1, 2015 / 16 Av, 5775
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Q & A: A Sabbath Desecrator Leading Services (Part VIII)


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Question: May someone who desecrates the Sabbath lead the services if he has yahrzeit? If yes, may he replace someone else who has yahrzeit?

Hayim Grosz
(Via E-Mail)

Answer: Exodus 31:16-17 is the source for our Sabbath observance. The verses explain that Shabbat serves as a sign between G-d and the Jewish people of our uniqueness before G-d. In parshat Bereishit we see that Shabbat bears testimony to the creation since G-d abstained from creating the world on that day.

Many Jews throughout the generations have exhibited tremendous self-sacrifice to observe Shabbat. While today there are many laws to protect Sabbath observers, this was not the case generations ago. Therefore, it became de rigueur for Jews to refer to themselves with the appellation “shomer Shabbat” as opposed to, for example, “shomer Torah u’mitzvot.” Although the observance of Shabbat is just one aspect of Judaism, it is one that clearly identifies the Jew and is an unmistakable indicator of his or her level of commitment.

We examined the qualifications of a shliach tzibbur, who must be able to pronounce each letter and vowel correctly. The Mishnah Berurah explains that a shliach tzibbur must be a tzaddik ben tzaddik. However, even if one is not from a distinguished family, one may serve as a shliach tzibbur as long as he is not a tzaddik ben rasha.

We also discussed whether a Sabbath desecrator can lead prayer services. The Shulchan Aruch writes that saying a blessing over a stolen pair of tefillin is forbidden. Thus, a Sabbath desecrator leading services is not blessing G-d but blaspheming Him. We thus might classify such a tefillah as a mitzvah haba’ah be’averah.

Rabbi Yitzhak Yaakov Weiss (Minchat Yitzhak III 26:4) suggests a more lenient approach, differentiating between various categories of mechallelei Shabbat. Authorities differ on when a hidden desecrator is considered an apostate, and when he is still considered a Jew in good standing. Ultimately, different circumstances create different rulings.

Rabbi Chaim Mordechai Hodakov, zt”l, allowed Sabbath desecrators to lead services in extenuating circumstances, such as where there are few available candidates “because at that moment, when [the mechallel Shabbat] leads the congregation, is he desecrating Shabbos?”

It follows that we cannot compare a Sabbath desecrator leading prayer services with a “mitzvah haba’ah be’averah” – e.g., saying a blessing over stolen tefillin – for when a shliach tzibbur leads services, he is not desecrating the Sabbath.

Last time, we examined the Gemara which discusses freeing one’s slave – a prohibition – in order to make up a minyan. We compared that act to including a Sabbath desecrator in a minyan. If a slave can make up a minyan, surely a Sabbath desecrator, who is obligated in mitzvot (unlike a slave) and who is doing nothing wrong at the moment, can be part of a minyan and lead the services.

* * * * *

When discussing precedence in regards to mourners (someone who has yahrzeit is considered a mourner on that day), we must bear in mind the rules set down by the Rema (Yoreh Deah 376:4). The Rema discusses who should say kaddish in shul since he maintained that only one mourner should do so. Indeed, this is the practice of German Jewish kehillot; only one person says kaddish. (Though he recites kaddish for his own relative, his recitation also benefits the other departed souls on whose behalf other mourners are present.)

In most other communities, however, all mourners say kaddish together. Therefore, the Rema’s rules are only relevant to who should lead the services since, as the Rema notes, if a mourner knows how to lead the services, he should.

Rabbi Yechiel Michel Tuktzinsky’s Gesher HaChayim, which my uncle, HaRav Sholom Klass, zt”l, favored when it came to matters of mourning, writes as follows (in Vol. I, 30:10, based on the Rema):

“There are five types of people regarding the rights to recite kaddish:

“1. A mourner or a minor orphan in the midst of shivah.

“2. A mourner in the midst of sheloshim.

“3. A mourner after sheloshim until 12 months have passed.

“4. A mourner on the day he concludes reciting kaddish after 11 months.

“5. One who observes a yahrzeit in any given year.”

A mourner during shivah takes precedence over all other mourners; a mourner during sheloshim takes precedence over one observing the 12 months; someone with yahrzeit takes precedence over a mourner observing the 12 months and a mourner who is concluding reciting kaddish at the end of 11 months; and, finally, a mourner concluding his recitation of kaddish after 11 months takes precedence over a mourner observing the 12 months.

The Gesher HaChayyim continues: “These levels are commensurate with middat hadin – the severity of justice [regarding the deceased] – in the various stages of the 12 months [each succeeding period being less severe]. The [significance of the] day on which one concludes reciting kaddish is not that it represents any specific period or change [in one’s level], but rather we give the mourner special rights on that day because he will now miss an entire month [of saying kaddish].

“Since his special rights only affect those mourners within the 12-month period [but beyond sheloshim], those mourners give him preference for kaddish recitals on that day. However, one who is observing shivah or sheloshim does not give up his right to the kaddish recitals.

“Thus, if someone is in the midst of shivah or sheloshim, the person who observes a yahrzeit only recites the ‘extras’ [i.e., the kaddish after Shir Shel Yom, or Borechi Nafshi on Rosh Chodesh, LeDavid Hashem Ori during Elul until after Shemini Atzeret, or Mizmor Shir Chanukat Habayit during Chanukah] for which the mourner has no exclusive rights.”

The Gesher HaChayyim lists those kaddish recitals specific to the mourner within shivah, who takes precedence over one observing sheloshim or a yahrzeit. Thus, for Shacharit these would be the half kaddish before Barechu, the half kaddish following Tachanun and the Amida, the Kaddish Titkabbel following Ashrei and U’va LeTziyyon, the Mourner’s Kaddish following Aleinu, and Kaddish DeRabbanan following Ein K’Elokeinu (in congregations where this prayer is said).

However, Kaddish DeRabbanan after Korbanot, the kaddish before Baruch She’amar and the kaddish following Shir Shel Yom (and following the recital of Psalms, where such is the practice) are designated for other mourners.

One difference between a mourner during shivah and a mourner during sheloshim is that in the event that there are no “extra” kaddish recitals for that prayer service, the yahrzeit commemorator takes precedence over the one observing sheloshim because in this case the sanctity of the day itself, and not the individual, causes the precedence.

As regards to who leads the services, a mourner during sheloshim should lead until (and including) the kaddish after chazarat hashatz. The yahrzeit commemorator then should lead for Ashrei and U’va LeTziyyon. The two should then split the kaddish recitals following Aleinu and Ein K’Elokeinu.

The Gesher HaChayyim also makes reference to a Barechu Batra – the Barechu that some congregations say after Aleinu – noting that this as well goes to the yahrzeit commemorator since the Barechu of Birkat Keriat Shema was already given to the mourner within sheloshim.

All of the above applies to those congregations that maintain rules for which mourner recites which kaddish. However, as mentioned earlier, many congregations allow all mourners to recite kaddish together. The only kaddeishim not said collectively are the kaddish before Barechu, the kaddish following the Amida and Tachanun (when Tachanun is said), and the kaddish following Ashrei and U’va LeTziyyon.

Thus, for most congregations, the question of precedence is only relevant to the question of who should lead the services.

(To be continued)

About the Author: Rabbi Yaakov Klass, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at yklass@jewishpress.com.


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