CCAR RESPONSA

Argument Over a Tombstone

5756.7

She'elah

A congregant has asked the rabbi to officiate at the dedication of his mother's tombstone. The deceased woman was married at the time of her death to her second husband, but her son has chosen not to put the last name of the second husband on the stone. The deceased was married to this husband for fifteen years, used his last name, and never publicly expressed any unhappiness with the marriage. The son, however, claims that since his mother's death, her husband has stolen money from their family. He says that if his mother could now see what this man has done she would not want his name on her grave marker. The husband, who denies the allegations, is quite upset that a stone that does not bear his last name has been placed at his wife's grave.

Should the rabbi officiate at the dedication? (Rabbi Debbie Stiel, Omaha, NE)

Teshuvah

We will address two distinct sides of this issue in our teshuvah. First, we will ask whether and to what extent the son's action was a proper one. Second, in the event that Jewish tradition holds that the son has committed a wrong against his stepfather, should the rabbi officiate at the dedication of his mother's stone?

1. The Name on the Tombstone. This question was addressed by our Committee in 1985.[1] We noted that Jewish tradition obliges the husband to provide for the burial of his wife,[2] and that providing her a suitable grave marker is part of this responsibility.[3] It is reasonable to infer from this that the husband is entitled to inscribe his name on his wife's stone, although the traditional literature does not explicitly say so. The Committee concluded, however, that since it is our custom for an individual to be known by his or her English first- and surname, "if the woman who dies used the last name of her second husband during her lifetime, then that name should also be mentioned on the tombstone."

On the other hand, the son might also argue in favor of his decision on the basis of Jewish burial custom. It is a widespread minhag that, when a widow who remarried subsequently dies, she is buried next to the husband with whom she had children.[4] In most instances this is the first husband, and such is presumably the case here. Moreover, the tradition seems to place a special value upon a first marriage that is missing from subsequent unions. We read, for example, that "when a man's first wife dies, it is as though the Temple was destroyed in his lifetime."[5] And the Zohar declares that "a woman who marries two husbands in this world will return to her first husband in the world to come."[6] If this is so, we might therefore argue that just as a woman is buried next to her first husband, so should the name on her tombstone register her first, rather than her second marriage.

Jewish burial custom, however, is a rich and complex tapestry, woven of many different and often contradictory threads. Thus, we are taught that a husband or wife married for a second time does not practice mourning openly for a first spouse, in order to spare the current spouse shame and embarrassment.[7] From this, R. Moshe Sofer deduces that the second marriage annuls any remaining attachment to the first; put differently, one's deceased spouse has ceased to be the spouse in any concrete sense of that term.[8] Some authorities understand this ruling to mean that a wife who was married twice should be buried next to her second husband.[9] Indeed, the fact that her husband is responsible for her funeral expenses is cited as the reason that the wife should be buried next to him and not next to her father.[10] This would lead us to conclude that, contrary to the prior argument, it is the second or current marriage that takes precedence. And if so, the name on the grave marker should reflect that second marriage.

Which of these two conclusions is the better reading of the tradition's demand upon us? We find the logic of the latter argument compelling in its simplicity: one's current spouse is one's spouse. The woman in our case had but one husband at the time of her death and carried his last name. It is inaccurate as well as improper for her son to inscribe her grave marker in such a way as to efface the fact of that marriage.

The son claims that, if his mother could only know of her husband's alleged larceny, she would surely not want his name to appear on her grave marker. This is a point of some significance. Most authorities hold that one's burial place is ultimately determined according to one's wishes. Even those who rule that a person ought to be buried next to the first spouse concede that if he or she expresses a desire to lie next to the second spouse we are obliged to honor that request.[11] In our case, the son contends that we surely know what his mother would have wished; thus, he believes he is justified in omitting her husband's name from her tombstone. Again, though, his case is a weak one. It is a general rule in the halakhah that we do not act on a person's unstated intentions.[12] We simply do not know what his mother "would have wanted"; we may suspect it, but we cannot know it. What we do know is that at the time of her death she was married to her husband and, as our sho'el indicates, never publicly expressed any unhappiness with the marriage. There is no reason for us to try to imagine how she would have felt were she to have known these alleged facts; the clear fact of her marriage should have guided the family in determining the inscription upon her stone.[13]

2. Should the Rabbi Officiate? We now turn to the second issue posed by this she'elah. While in principle (lechatkhilah) the son ought to have inscribed his mother's married name on her tombstone, he did not do so; now, after the fact (bedi`avad), we want to know whether the rabbi should refuse to officiate at the ceremony to dedicate the stone.

The presence of a rabbi is not, strictly speaking, an indispensable requirement for most life-cycle ceremonies.[14] Yet it has become the long-standing minhag (custom) for a rabbi to officiate at these events. Therefore, a rabbi's refusal to officiate is perhaps the most powerful means at his or her disposal to express disapproval or to effect a change in behavior. Since this refusal is in some ways similar to the traditional kenas, a punishment imposed for improper actions,[15] we must ask whether, in this instance, the punishment fits the "crime." There are some occasions when the refusal to officiate is quite proper. The CCAR and this Committee, for example, have urged Reform rabbis not to officiate at mixed marriages, on grounds of Jewish religious principle as well as of social policy.[16] Here, though, we do not think that a refusal to officiate is warranted. As we state above, the erection of a tombstone is an integral part of the mitzvah of burial. A rabbi's refusal to officiate at a stone setting is therefore tantamount to a refusal to officiate at the funeral itself. As our responsa literature makies clear, there do exist valid religious reasons to justify a rabbi's refusal to participate in a burial service.[17] Yet it would be unthinkable for the rabbi to refuse to participate because of discord among the relatives of the deceased. Such a refusal, however well-intentioned, would be an affront to kevod hamet, the dignity and respect we owe to the dead. The same is true in our case. It is the deceased herself, and not her squabbling mourners, who should occupy the center of our concern.

None of this is to say that the rabbi has no constructive role to play in this situation. On the contrary: if the rabbi deems it appropriate, he or she might use the dedication ceremony as an occasion to speak of the value of shalom bayit, of family harmony, and to remind the mourners that their memories of the deceased ought to take precedence over their dislike of each other. This might be seen as a first step in a long process of counseling whose ultimate goal is to help the family members work through their hostility, to understand that precisely because of the deceased, who was mother and wife, they are and always will remain a family. And it is axiomatic that the rabbi cannot perform this role if he or she is viewed as having taken sides in the family quarrel. If the son's allegations about his stepfather's conduct are true, then restitution must surely be made; forgiveness cannot come in the absence of teshuvah. But if it is an essential element of the rabbi's function "to bring near those who are far away",[18] this can best be accomplished in the present case by officiating in the ceremony and remaining a trusted pastor to this family.

Mark Washofsky, Chair Joan S. Friedman David Lilienthal Bernard Mehlman W. Gunther Plaut Richard S. Rheins Jeffrey Salkin Daniel Schiff Faedra L. Weiss Moshe Zemer

NOTES

1. Contemporary American Reform Responsa, no. 116.

2. M. Ketubot 4:4; BT Ketubot 47b; Yad, Ishut 12:2; SA Even He`ezer 89:1.

3. R. Asher b. Yechiel, Resp. Harosh 13:19: the tombstone is among the normal funeral expenses (mi-tzorkhey kevurah); Tur and SA EHE 89:1.

4. R. Moshe Feinstein, Resp. Igerot Moshe, Yore De`ah 2:153; R. Yekutiel Greenwald, Kol Bo Al Aveilut, p. 188; R. Yechiel Tycozinski, Gesher Hachayim, ch. 27:7; R. Ze'ev Dov Selonim, Sha`arei Halakhah, 1977, no. 67.

5. BT Sanhedrin 22a, which continues: "a man finds contentment only with his first wife," suggesting that her death is for him an especially devastating loss (Maharsha ad loc.).

6. Zohar to Gen. 1:16. A number of the authorities in note 4 point to this passage as evidence that a wife ought to be buried next to her first husband.

7. BT Mo`ed Katan 21b and Rashi, s.v. eino rashai; SA YD 385:2.

8. Resp. Chatam Sofer, YD, no. 355.

9. R. Chaim Chizkiah Medini, Sedei Chemed, aveilut, par. 170; R. Yitzchak Ya`akov Weiss, Resp. Minchat Yitzchak, 3:106.

10. SA YD 366:4, and Shakh ad loc., from Tractate Semachot, ch. 14.

11. That is, the rule that one should lie next to the first spouse obtains only when one's wishes are not known; R. Eliezer Waldenberg, Resp. Tzitz Eliezer, 7:49, ch. 4, Igerot Moshe loc. cit., and Gesher Hachayim loc. cit.

12. BT Kiddushin 49b-50a and elsewhere: "unspoken intentions are not a basis for legal action" (devarim shebalev einam devarim). Thus, if one sells property on such-and-such a condition but does not explicitly state that condition, even though it seems plausible that he made the sale for that reason, the sale is valid even if the condition is not met; Yad, Mekhirah 11:9.

13. That the son and not the husband paid for the erection of the stone might be taken to indicate that the latter, who is responsible for his wife's burial expenses, waived his "rights" with respect to the inscription. Yet this is not the case: the husband, we are told, is "quite upset" over the matter. However these particular arrangements were made, it seems that the husband expected the stone to bear his--and his wife's--last name. This, as we have suggested, is an eminently reasonable expectation.

14. See Contemporary American Reform Responsa, no. 90.

15. Technically, rabbinic authorities who do not possess semikhah, the ancient and long-discontinued ordination practiced in the land of Israel, are not empowered to adjudicate issues of kenas. Yet Diaspora rabbinic courts may resort to other measures, such as the ban of excommunication, in place of the kenas as a means of pressuring wrongdoers into paying what they would have paid had the case been handled in Eretz Yisrael. BT Bava Kama 84b; Yad, Sanhedrin 5:8-9; SA CM 1:5 and Shakh, no. 14.

16. CCAR Yearbook 83(1973), 97; American Reform Responsa, nos. 146 and 149.

17. For example, we do not conduct a burial service for a "Messianic Jew" (CARR, no. 67). We will conduct a funeral for an apostate (that is, a Jew who has converted to another religion without contending that he or she remains a Jew), provided that the many of the customary "honors" of the mourning rites are not observed (CARR, no. 100).

18. See Genesis Rabah 39:11 on Gen. 12:2.

If needed, please consult Abbreviations used in CCAR Responsa.