I. Source of the Din- Mumrim Mamash
5A. שו"ע 345:5 – Any person who is poreish from darkei tzibbur, want to be considered like rest of the non-Jews, no aninus, no aveilus, wear white clothes and have simcha when they die. Presumably, these are ppl who don’t want to have anything to do w/ Judaism.
B. רא"ש שו"ת 17:9 – Does one sit shiva for a meshumad? Says psak in Maseches Smachos is no.
C. Mordechai MK – Tell story of R’ Gershom who sat shiva for his son who went off the derech.
*But does that mean when he died or when he went off the derech?
2. Chachmas Adam – It was 14 days, 7 days for the guf, 7 for the neshama. However, when he died there was no chiyuv aveilus, but should be sad that he brought such a rasha into the world.
3. Livush – Tells this same maaseh, but says it was after his death. Not b/c of aveilus, b/c there is no chiyuv aveilus, but b/c he was never zoche to do teshuva and his body and soul were lost.
D. תוס' Sota 39A Dh V’Chi – Talking about certain kohanim who are not allowed to duchan. The Shiltos says that if he was oved AZ can’t duchan b/c it’s even worse than s/one who committed murder. However, R’ Gershom argued that if he does teshuva, then he can duchan again.
E. ט"ז 340:1 – says over the story like the Livush, that the shiva was sat when he died.
**But there are stories where children from famous Rabbonishe families went off the derech and the family sat shiva at the time the child went off the derech.
F. Eretz HaTzvi (p.122) – Gm Sanhedrin says that af al pi shechata, person is still considered yisrael, still chayav in mitzvos. However, when s/one is a mumar, then he does not have status of being part of the Jewish Nation. How do you define this difference? Things that were part of Bris הקב"ה made w/ Avraham. So a person who doesn’t have a bris, or marries a non-Jew, not part of the Uma Yisraelis. And quotes from R’ Yaakov Kaminetsky that if a person can be mashpia on someone to marry a Jew, that itself is a big accomplishment b/c keeping them connected to the Jewish People.
G. Mahari Bruna – tells story of kid who took a neder never to play w/ a Jew and there was a mishumad and he asked a shayla can he play w/ this person, and R’ Isserlin said yes b/c he wasn’t part of klal yisrael anymore b/c he’s a meshumad.
H. Sefer Kol Tzofeich (R’ Gershuni) – On the one hand, a mumar cannot leave his Kedushas Yisrael, but that’s between him and הקב"ה, but when it comes to the rest of us, we don’t consider him part of Klal Yisrael.
I. רמ"א YD 151:1 – want to sell s/thing to a Jew that he will use for AZ. Usually, have problem of lifnei iver, which is only if he would not be able to do it w/out you (trei ibra d’nahara). But what if you just make it easier? We assume that this is issur dirabanan of misayeia. רמ"א quotes two opinions about when he could get it somewhere else anyways, is it מותר or not.
1. ש"ך 6 – רמ"א is basically saying there are two opinions whether there is issur dirabanan of misayeia or not. But ש"ך says I think e/one agrees there is issur of misayeia, the machlokes is whether there is issur misayeia when it comes to goy or mumar. But אה"נ by regular Jew there is such an issur. So see that the issur misayeia may not apply to a mumar.
2. Dagul Merivava – whenever someone is doing aveira b’meizid, no issur misayeia.
3. Avnei Nezer 126 – If they have Kedushas Yisrael, then should be din arvus, and should still be issur of misayeia? Quotes Maharal, that there is gm Sanhedrin that from pasuk of hanistaros laHashem, dots on top, only have din arvus at har grizim and har eival, when they went into Eretz Yisrael. This is what makes klal Yisrael one unit. Therefore, anyone who is not allowed to live in Eretz Yisrael b/c they are mumrim, then no din arvus by them. And says this is pshat in the ש"ך.
II. What about ppl who still want to be Jewish? How do we define a mumar?
2 kinds of mumar: Lihachis & L’teiavon. L’teiavon: אה"נ, they would eat kosher meat, but it’s more expensive, etc. But if had both, would eat the kosher meat. L’Hachis doesn’t mean you want to anger God. But it means that even if there was kosher and non-kosher meat, same price, he would still take the non-kosher meat, b/c it makes no difference to him (R’ Schachter explains this way).
A. Maharam MeRuttenberg Hilchos Smachos 37: If the person does aveiros s/times l’teiavon, then tear kria for them when they die.
1. Mordechai quotes this Maharam, and says this is only if he does it once in a while, but if does it regularly, even l’teiavon, considered a mumar.
2. טור 340 – Quotes Maharam.
a. Beis Yosef- Quotes the Mordechai, once he is ragil to do the aveiros, considered poreish midarkei tzibbur (presumably talking about aveiros chamuros that get malkus. Not talking about s/one who speaks lashon hara regularly).
b. רמ"א 340:5 – Have to tear kria in presence of person who dies, but if he’s ragil to do aveiros, no aveilus.
c. שו"ע 345:5 – No aveiuls for a mumar.
III. But how does this apply practically? What about tinok shenishba?
A. רמ' Hilchos Mamrim 3:3 – Ppl that moridim v’einam olim. Throw them in a pit. This only applies to the first generation apikorsim. However, the children of these ppl, and the grandchildren, considered like a tinok shenishba, and considered ones.
B. חזו"א YD that this din doesn’t apply bizman haze b/c that was only when e/one was frum and being not frum you were being poreitz geder, and there was nevua, etc. but nowadays ppl are tinok shenishba (look it up).
- Maaseh w/ R’ Aharon Kotler, that bachur got a call in Yeshiva that his parent who was not frum had passed away, and R’ Aharon told him to continue learning, following the din in שו"ע. R’ Schachter told over this maaseh, and said no one knew who these ppl were, and no one would be upset about the psak etc.
C. Emes L’Yaakov 345 – writes in the footnote to sit shiva for mechalilei שבת these days b/c they don’t understand the chumra of שבת and consider them like tinok shenishba.
D. Nitei Gavriel also writes that the minhag is to keep aveilus for these ppl, and consider them tinokos shenishbu.
- R’ Simon also mentioned that there is issue of eiva, that ppl would be very upset with religious Jews if they knew this psak. But if it was only mishum eiva then there would be reason not to keep dvarim shebitzina.
E. שו"ת Maharshag 25 – Person who shaved w/ a razor, was a michalel שבת, and family comes asking shaylas about aveilus, should the rav tell them that there is no chiyuv aveilus for this person?
Says that if it’s just that he shaved w/ a razor, may not really be pasul l’eidus, b/c could be they don’t know that this is אסור. Like רע"א writes when it comes to kosher and matir on שבת. And even if he does an aveira that ppl know is אסור, still may have chiyuv aveilus b/c not necessarily considered poreish midarkei tzibbur. Im kein, don’t make light of the shayla he’s asking you, especially if he wasn’t a total michalel שבת. I.e. he doesn’t do certain things b/c he knows its שבת.
F. Igros Moshe YD 1:235 – Person who converted to Christian Science Church, can you bury them in a Jewish Cemetery?
Has two possibilities why this should be מותר. One, b/c this idea that they don’t go to Dr’s only daven to oso haish, it’s crazy. But says that this would be true of any oved AZ. So no good. Then he said she went to a Dr three weeks before she died, so maybe she was chozer. But says that’s not a good reason either. So says have a tahara, tachrichin, etc. and then bury her in the non-Jewish cemetery, and then can exume the body and rebury her in Jewish cemetery, but says should wait until after 12 months when she’s had a full kapara. And if will be a bizayon, can do it earlier.
G. Maseches Smachos- A Menuda that dies, have to do skila, so put stone on his aron.
1. Mordechai – Din of menuda is like harugei skila, so no aveilus on him. It’s a type of harugei bd. (see inside).
2. Emek Bracha – At first says he thinks the reason we do this is b/c of din nidui shebo, that just like s/one in nidui have to distance from him, so, too, put a stone on his coffin so ppl realize they should stay away. However, says from meseches smachos sounds like it’s midin skila, so see that he has din of harugei bd, and no aveilus for such a person.