By Rabbi Avrohom Gordimer
P’sak Halacha is very serious business. To adjudicate Halacha, one must be a grounded halachic authority, whose command of the issues is without question. This is for normative halachic decision-making.
However, to overturn halachic precedent and norms, one must be a paramount halachic master – a posek’s posek, a doyen in the massive and complex field of Halacha, a halachic expert of the generation. We speak here of people such as Rav Moshe Feinstein, Rav Yosef Dov Ha-Levi Soloveitchik, Rav Ovadia Yosef, and others of such high caliber whose rulings are sought after by senior halachic authorities. Only such individuals, who are renowned as the top-tier ge’onim of generations, may move the goalposts of practical Halacha.
It is with these thoughts in mind that I am compelled to address Rabbi Barry Dolinger’s “Milchig Manifesto of Shavuos 5777”, in which Rabbi Dolinger argues that one is halachically permitted without hesitation to consume unsupervised and uncertified cheese. In this essay, Rabbi Dolinger does not merely try to support the minority opinions that such cheese should theoretically be acceptable, but that the public should not be advised to consume it. Rather, Rabbi Dolinger argues that the public should treat such cheese as kosher and should feel free to purchase and eat it, confident that it is halachically problem-free.
We need not go through the sources from scratch here; Rabbi Dolinger went through some of the basics already. But we do need to first correct some misimpressions that likely arise from a reading of Rabbi Dolinger’s essay.
The overwhelmingly predominant position in Rishonim and halachic codes is that Chazal forbade Gevinas Akum(unsupervised cheese) as a davar she-b’minyan – something whose prohibition applies even if the original reason for the prohibition does not pertain. This is the opinion of the Rashba, Raavad, Ramban, Ran, Tur, Shulchan Aruch, Chochmas Adam and Aruch Ha-Shulchan. It is also the way that most Rishonim and Achronim understand the Rambam’s opinion.
What this means is that even if unsupervised cheese is no longer made with or keivas neveilah (rennet enzymes from non-kosher animal stomachs), the issur on such cheese is in full force, and, should Beis Din would have the authority to punish, one would be subject to Makkos Mardus (lashes for violating a rabbinic prohibition) for willfully consuming such cheese.
Hence, to rule leniently, one must realize that he is going up against a mighty majority. Furthermore, the issur of Gevinas Akum is unlike most other issurim de’Rabbanan (Rabbinical prohibitions), as Gevinas Akum is of a weightier character and is treated in many ways like an issur de’Oraysa, a Biblical prohibition. (V. Shach – Dinei S’fek S’feika, YD 110 s.k. 63:17-19.) We are not dealing with a standard issur de’Rabbanan that can easily be obviated in doubtful situations.
That said, there is of course a minority of lenient positions. The Remo writes in YD 115:2: “And this is the practice (to prohibit Gevinas Akum as a davar she-b’minyan), and one may not breach it, unless he is in a place where they conduct(ed) themselves leniently, based on early permissible opinions.” The Chazon Ish held that the ikar ha-din(basic Halacha) would in theory permit most unsupervised cheese in contemporary times, as per Tosafos in Avodah Zarah 35a (d.h. “Chada…”) – but the Chazon Ish hesitated to actually put this ruling into practice. The Chazon Ish, in a letter, also suggested permitting such cheese for Jews who were not as meticulous about kashrus, writing that “b’sh’as ha-dechak”, in an urgent situation (as these Jews would otherwise view themselves as having abandoned keeping kosher), it would be advisable to allow them to consume unsupervised cheese, with the result that these people would still view themselves as within the bounds of Torah practice.
In both of the above scenarios, the Chazon Ish of course did not permit unsupervised cheese lechatchilah(outright).
Rav Yosef Dov Ha-Levi Soloveitchik maintained that the ikkar ha-din is in accordance with the above-cited Tosafos in Avodah Zarah, but he strictly refused to permit such cheese for the masses and ruled that it is assur (prohibited) for them, as is was a case of “Halacha v’ain morin kain” – “This is the basic Halacha, but we do not rule this way for the public.” The idea is that since publicly permitting such cheese would seem to contradict codified Halacha, permission cannot be granted.
Although it is not necessary for the point of this article, I was told by a senior talmid of the Rav, who learned Yoreh Deah from the Rav and spent countless years in the Rav’s shiur, and who is himself a master of Yoreh Deah, that the Rav later retracted his lenient, private position, based on words of the Ran (assumedly on 13A-13B in Dapei Ha-Rif on Avodah Zarah).
Thus, the only two recent gedolim (the Chazon Ish and Rav Soloveitchik) known to have held that unsupervised cheese is permissible me-ikar ha-din refused to permit such cheese lechatchilah and greatly qualified their permissive opinions. The vast majority of poskim rule like the Shulchan Aruch et al and find no heter at all. (Rabbi Dolinger cites the lenient position of Dr. Isaac Klein. Dr. Klein was an early Conservative rabbi, and his position carries no weight against the overwhelming majority of poskim with whom Dr. Klein disagrees and who surpassed his authority in all ways.) Rabbi Dolinger’s position is hence left without any Orthodox rabbinical imprimatur.
There are a few other inaccuracies in Rabbi Dolinger’s essay, worth briefly noting:
Rabbi Dolinger presents the various rationales for the prohibition of Gevinas Akum as proffered in the Gemara by the Amora’im, explaining that each reason except for that of Giluy (milk left exposed overnight, possibly thereby contaminated with venom) and or keivas neveilah are discounted. This is not so. Although Rabbeinu Tam (Tos. AZ ibid.) rules that Giluy is the basis of the issur, and the Rif, Rambam and Shulchan Aruch rule that or keivas neveilahis the reason, the Tur (Yoreh Deah 115) cites all of the reasons presented by the Amora’im, as do some other authorities.
Rabbi Dolinger suggests that cheese may be rendered kosher according to the Remo (YD 115:2) not only via literalre’iyah, meaning onsite visual supervision, but even via spot checks or perhaps via non-visual knowledge that or keivas neveilah is not used in production. This is incorrect. Spot-check (yotzei v’nichnas) supervision is cited regarding Chalav Akum/milk supervision (Shach s.k. 4 on YD 115), but is never mentioned in any sources regarding Gevinas Akum. (Some argue that it may possibly work, based on a Taz elsewhere, but it is very speculative, and Rabbi Dolinger was not basing himself on an inference from that Taz. The accepted position in poskim is that it does not work.) And poskim specify that non-visual knowledge certainly does not meet the cheese supervision requirement of re’iyah, proving this from the fact that most Rishonim and Achronim specify that “even if it is known” that or keivas neveilah is not used in cheese production, the cheese is forbidden as Gevinas Akum absent onsite visual supervision according to the Remo; knowledge alone of the absence of or keivas neveilah does not suffice.
Getting back to Rabbi Dolinger’s position that permits unsupervised cheese – it is not in line with even the most lenient, minority rabbinic authorities of recent generations; only Dr. Isaac Klein outright permitted unsupervised cheese, and he is the only rabbi of recent times to whom Rabbi Dolinger can turn to support his position. The other lenient, minority rabbinic positions did not permit unsupervised cheese outright for the kosher-adherent public.
Rabbi Dolinger has thus issued a halachic opinion that breaches boundaries and is outside of anything of the norm. Only a master halachic authority, to whom other poskim of the generation turn, has the right to approach anywhere near this realm, and even then, such a halachic authority would in all likelihood never venture to permit that which Rabbi Dolinger argues to allow without compunction.
Rabbi Dolinger’s conclusion bespeaks a lack of knowledge of the halachic system. He writes:
“Personally, I’m compelled to be lenient based on the classical sources on the merits, because it’s good law, but also because of the need to apply the rabbinic system (and Judaism generally) in a way that’s broadly defensible, relevant (hence the title of this blog), and makes good sense.”
Halachic axioms of authority, precedent, submission to the positions of those who carry far greater weight, and not breaching boundaries, seem to have eluded the process here. Rather, “good law”, and “broadly defensible, relevant” adjudication are the factors for Rabbi Dolinger’s very thorny opinion.
Rabbi Dolinger has established a reputation as a maverick – from his 2013 rabbinical testimony in favor of gay marriage before the Rhode Island State Senate, to his certification of restaurants in the Boston area at a standard that is markedly lower than the local vaad there (the KVH). I beseech Rabbi Dolinger to please rein himself in and comply with rabbinic norms, pertaining to the spheres of rabbinic jurisdiction, p’sak Halacha, and the Torah’s standard of morality.