Sorry to Spoil the Cheese Party: A Reply to Rabbi Barry

Dolingers Milchig Manifesto of Shavuos 5777

Psak 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 poseks 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 geonim
of generations, may move the goalposts of practical Halacha.
It is with these thoughts in mind that I am compelled to address Rabbi Barry Dolingers 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 Dolingers essay.
The overwhelmingly predominant position in Rishonim and halachic codes is that Chazal
forbade Gevinas Akum (unsupervised cheese) as a davar she-bminyan - 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 Rambams
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 deRabbanan (Rabbinical
prohibitions), as Gevinas Akum is of a weightier character and is treated in many ways like an
issur deOraysa, a Biblical prohibition. (V. Shach - Dinei Sfek Sfeika, YD 110 s.k. 63:17-19.) We
are not dealing with a standard issur deRabbanan 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-bminyan), 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 bshas 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 vain 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 Ravs 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 Dolingers position is hence left without any Orthodox
rabbinical imprimatur.

There are a few other inaccuracies in Rabbi Dolingers essay, worth briefly noting:
Rabbi Dolinger presents the various rationales for the prohibition of Gevinas Akum as proffered
in the Gemara by the Amoraim, 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 neveilah is the reason,
the Tur (Yoreh Deah 115) cites all of the reasons presented by the Amoraim, as do some other
authorities.
Rabbi Dolinger suggests that cheese may be rendered kosher according to the Remo (YD 115:2)
not only via literal reiyah, 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 vnichnas) 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 reiyah, 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 Dolingers 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 Dolingers 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 Dolingers
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 kosher 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, psak Halacha, and the Torahs standard of
morality.