On the Kashrut of Establishments Open on Shabbat

25 Jan

One of the sociological standards of today’s Orthodox community that has been elevated to the rank of authoritative halakha le ma’aseh, for lack of a better categorization is that most self-identified Orthodox Jews will not patronize establishments under rabbinical supervision which opt to remain open on Shabbat. (Granted, many of these individuals will not patronize establishments not under Haredi hekhsherim, whether large, such as the Habad-controlled OK or yeshivish-dominated OU, or small, such as the numerous Hasidic hekhsherim in the New York metropolitan area, or the many, regional vaadim ha kashrut in out-of-town communities). These individuals refuse to entertain the possibility that an establishment owned by a non-Jew (or, in the case of an establishment owned by a Jew, symbolically sold to a non-Jew for the duration of Shabbat or Yom Tov using the legal device known as a “shtar mehira,” whose use was authorized by none other than R. Moshe Feinstein, basing his psaq on the heter granted by the Shulhan Arukh, Orah Hayyim 244:6) can remain open over Shabbat and still comply with the halakhot of kashrut.

Granted, the de-facto head of American Centrist Orthodoxy for several decades, R. Yosef Dov Soloveitchik zt’l, disapproved of the use of shtar mehirah, as recorded by his talmid muvhaq, R. Hershel Schachter, on p. 168 of Nefesh ha Rav, and based on this, the centrist Rabbinical Council of America passed a measure in 1990 enshrining Soloveitchik’s position, declaring “shmirat shabbat as a standard of kashrut.” While the RCA is certainly entitled to hold by the mahmir shita of R. Soloveitchik, its resolution is problematic because it assumes that the position of its then-figurehead is the only correct position (the resolution dogmatically asserts that it “deplores those restaurants, bakeries and hotels that purport to observe Kashruth but are in violation of the Halachot of Shabbat and/or Yom Tov,” itself a misnomer, considering that a shtar mehirah is a perfectly acceptable device according to the Mehaber and R. Moshe Feinstein, and it thuggishly “calls upon those Kashruth supervising agencies that have comprised these standards of Shemirat Shabbat V’Yom Tov to use their good offices to bring all of their restaurants, bakeries and hotels into compliance with these standards.”) This approach becomes yet another instance of the RCA elevating the personal opinion of one poseq over objective, textual standards (in this case, the Shulhan Arukh), and effectively, the RCA is demeaning those rabbanim who adhere by the perfectly halakhic alternative position of supervising establishments which remain open on Shabbat v’ Yom Tov. These rabbanim include Rabbi Israel Mayer Steinberg, a musmah of Yeshivat Torah Vo Daat, Rabbi Zev Schwarz, a musmah of the Telz Yeshiva, and Rabbi Yaakov Spivak, a musmah of Ner Yisrael and a rosh kollel in Monsey, NY (I stress the Haredi bona fides of these rabbanim ha machshir to demonstrate that even according to those who fall to the right of the RCA, both halakhically and hashqafically, supervising an establishment open on Shabbat is mutar).

Another possible halakhic concern is that of ne’emanut. According to classical meqorot, a mehallel shabbat b’ farhesya (one who desecrates the shabbat publicly), is to be treated as a goy l’ kol davar, and should not be counted for a minyan, nor should they be treated as a Jew vis-a-vis stam yenam and bishul (see the Maharam Schick, Orah Hayyim 281, s.v. Amnam, on the status of a mehalel shabbat as goy regarding bishul akum and pat akum). Presumably as an extension of this line of reasoning, the meqorot also indicate that a mehallel shabbat has no ne’emanut (reliability) regarding kashrut (see Yoreh Deah 119, based on bGittin 2b-3a and bHullin10). However, b’zman hazeh, this is not even absolute. Igrot Moshe, Yoreh Deah 2:43-44, pasqens that even if a person is a mehallel shabbat and not a ne’eman in the classical sense, we could depend on that individual’s kashrut if they are known to be a honest person (he was dealing with the case of a shomer kashrut Jew inquiring whether he could possibly eat in the home of his otherwise non-observant son, which he deduces as an extraordinary circumstance). Furthermore, the principle of Ed Ehad Ne’eman B’ Issurin comes into play. The Rambam, in Hilkhot Edut 11:7, pasqens that “The testimony of one witness is acceptable with regard to the Torah’s prohibitions, even though his testimony is not accepted with regard to other matters. This is evident from the fact that when a wicked person known to transgress slaughters an animal, his slaughter is acceptable. We accept his word when he says: ‘I slaughtered it according to law.'” The source of this principle has different origins, according to different shitot. Rashi, in Yevamot 88a, DH v’Amar, says that  the source for this principle is the fact that the Torah permits a person to eat at his friend’s home, and it permits a man to eat in his own home (without witnessing the preparation of the food). The Ritva in bGittin (2b) quotes a Yerushalmi as Rashi’s source. Where, though, does the Torah permit a person to eat food prepared by another person? Rashi here (DH Ed Echad) answers this question when he writes that the Torah permits the Kohanim to eat the meat of a Korban, even though the Torah also explicitly permits any person to perform the Shechitah of a Korban, without requiring two witnesses. The Torah clearly permits a person to eat food prepared by someone else based on his own testimony. Tosafot to bGittin 2b, DH Ed Ehad, say that Rashi’s shita is questionable and assert that the halakha with regard to Shechitah does not teach that an Ed Echad is believed in other cases of Isur. Shechitah differs because it is “b’Yado,” it is within the person’s ability to make an animal permissible by slaughtering it properly. A person is believed to say that something is Asur or Mutar when it is in his ability, “b’Yado,” to make it Asur or Mutar himself. According to Tosafot, the source for the principle of “Ed Echad Ne’eman b’Isurin” is the law that a woman who is a Nidah is trusted to count her days of Taharah and Tum’ah by herself, as the Torah says, “v’Safrah” (Vayikra 15:28). The question of ne’emanut becomes irrelevant, however, in cases where the Jewish proprietor employs use of the shtar mehirah (which “saves” the proprietor from the status of mechallel shabbat), or in cases involving a non-Jewish proprietor.

Another useful mekor can be applied to the case, as well.  R’ Yosef Messas, zt’l, dealt with the case of butcher shops in Tlemcen, Morocco open on Shabbat, in 1924. In his Mayim Hayim 1:143, R’ Messas gives a heter to patronizing kosher butchers that are mechallelei shabbat. Messas recognized the many problems that would arise if he declared the butchers not kosher, not least of which would be that many people would simply ignore his declaration, thus destroying any communal standards of kashrut observance. He was also concerned for the honor of his community, which was, as he tells us, being portrayed as a place where everyone ate non-kosher. He therefore offered a radical halakhic justification for the status quo. He argued that since, according to one approach in the medieval authorities, the butchers were not violating any biblical commands which in Temple days would be regarded as a capital offense, they could still be regarded as trustworthy with regard to the meat they prepared and sold. He also offered other reasons why the local butchers, despite being Sabbath violators, could be believed in matters of kashrut. Messas surely knew that he was going out on a limb with this ruling, but under the circumstances, he believed that it was the only proper halakhic answer, one that dealt with the reality he was confronted with. While there is a halakhic case to be made for patronizing establishments open on Shabbat without employing the hakirot of R. Messas, the fact that his psaq represents an acceptable shita within the bounds of halakhic reasoning gives even more credence to the practice of allowing kosher restaurants to remain open on Shabbat, in spite of the personal opinion of R. Soloveitchik adopted by the Rabbinical Council of America as psaq halakha. Furthermore, R. Messas was dealing with the question of Jewish mechallelei shabbat in meat; many of the establishments open on Shabbat under hashgaha are owned by non-Jews and serve either vegan or vegetarian foods exclusively.

Having determined that it is, indeed, an acceptable approach, halakhically, to grant a hekhsher to an establishment open on Shabbat v’ Yom Tov when certain conditions have been met (as outlined above), for the RCA to presume that such is a violation of nomative halakha, based on the opinion of its figurehead, constitutes a flawed and dangeous approach to halakha and Jewish communal policy. While more universal shmirat shabbat may be l’khatkhila for the RCA, as it is for all shomer shabbat Jews (myself included), demonizing those who embody a different, yet equally valid approach, reeks of recklessness and intolerance, violating the implicit meaning of the gemara, bEruvin 13b, where the possibility of plurality within the halakhic system is presented as absolute. Furthermore, allowing the supervision of establishments open on Shabbat can only serve to advance shmirat kashrut; in many locales lacking a critical mass of observant Jews, granting a hekhsher to an establishment which would need to stay open on Shabbat for economic concerns would enable the Jewish community in such places to enjoy a kosher dining establishment (one of the concerns raised by Rabbi Steinberg). Had the RCA acknowledged, at least, that the approach of R’ Steinberg and others to certify establishments open on Shabbat was within the bounds of halakhic acceptability, while articulating its own l’khatkhila position, than the possibility of a truly respectable, pluralistic approach to accepted, normative halakha would have emerged as a grand possibility. Instead, halakha has been relegated to the forces and whims of “frummer-than-thou” sociological religion.


3 Responses to “On the Kashrut of Establishments Open on Shabbat”

  1. stefan kirschner May 1, 2013 at 8:56 pm #

    What about the issue of bishul goyim?

    • dsayani May 1, 2013 at 10:45 pm #

      They leave the pilot light on over Shabbat; this is the same manner in which restaurants serving pre-paid meals over Shabbat operate, such as the OU-supervised Talia’s, and this is yotzei the shita of the Rema, which says that lighting a pilot light is considered sufficient involvement in the cooking process (almost all American hechsherim operate like this). In any event, it is recommended that a Jew wait enough time so that there is no possibility of them being served food cooked on Shabbat (Shulhan Arukh OC 318:1), although some doubt even that restaurant food ought to considered “Cooked” for any one customer in particular (see Pitchei Teshuvot 318:3).

  2. Rivka July 15, 2014 at 3:38 am #

    What about checking food for insects? Does a mashgiach check the establishment on Shabbat? Isn’t this aiding Jews in spending money on Shabbat? We are supposed to have emunah that Hashem will provide parnassah if we do not work on Shabbat, doesn’t this provide people to have a lack of emunah by having their business open on Shabbat?

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