CCAR RESPONSA

Disinterment From A Jewish To A Nondenominational Cemetery

5756.5

She'elah

A man was recently buried in the synagogue cemetery. His son, a member of the congregation, now wishes to exhume his father's body and to rebury it in a small, nondenominational cemetery that is closer to his home. The son is dissatisfied with the synagogue cemetery on grounds of distance (he claims it is too far from his home) and "aesthetics" (not explained). For these reasons, he says that it is "not meaningful" for him to have his father buried there. He believes that were the body to be buried in the smaller, non-denominational cemetery closer to his home, he could render more "honor" to his father. I have raised objections to the disinterment. The son, for his part, has mentioned the possibility of legal action to force the congregation to accede to his wishes.

Should we continue to deny the disinterment of his father? (Rabbi Irwin Zeplowitz, Hamilton, Ontario)

Teshuvah

The Reform Movement has published two teshuvot that deal directly with this question.[1] In brief, Jewish tradition prohibits disinterment with a few important exceptions. It has always been permitted to disinter from a grave site in the diaspora in order to reinter in the Land of Israel. It has been permissible to disinter when the grave site is threatened by vandals or nature, and permission has been granted to disinter in order to rebury in a family plot.[2]

The decision to disinter must be guided by three primary principles. There are prohibitions against actions that would bring scorn or shame upon the dead (bizayon hamet). We are commanded to protect the honor of the dead (kevod hamet). And we are commanded to find ways to insure the comfort of the mourner (nichum aveilim). As we will see, these principles sometimes come into conflict.

For instance, obviously, one would be showing more honor for the dead (kevod hamet) if the deceased were buried in a dignified grave site as opposed to a disgraceful grave site. And yet, Rambam wrote that disinterment is prohibited even from a pitiful grave site to one of honor. His concern was that exposing the decomposing body is a greater shame than being buried in an "unaesthetic" plot. But then again, both Rambam and Karo maintained that disinterment is permitted in order to rebury a person's remains in a family plot, even if the actual grave site in the family plot is noticeably poorer than the original site.

In our case, the overlapping principles become even more entangled. If the son intends to create a "family plot" at another cemetery, his intention would seemingly trigger one of the exceptions to the prohibition against disinterment. Thus, the son's attempt to "render more honor" (kevod hamet) for his father would seem to override the concern for disgracing the dead (bizayon hamet) by means of the disinterment. In addition, one might argue that the Jewish community should be responsive to the son's request because the son is one of the primary mourners and it is a mitzvah to comfort him (nichum aveilim). But the Jewish community also has a responsibility to protect the honor of the dead. A sacred trust is made when a Jew arranges to be buried in a Jewish community's cemetery. The Jew has a right to believe that the community will care for the grave site and preserve the Jewish sanctity and identity of the cemetery. Therefore, the community, by virtue of its position as guarantor of the sacred trust, has a right to object to any attempt to disinter when such an attempt is deemed to violate that trust or is contrary to Jewish tradition. From the communal point of view, disinterment from a Jewish for reburial in a nondenominational cemetery is objectionable. It goes without saying that it is preferable for a Jew to be buried in a Jewish cemetery. The first major action of a new Jewish community has usually been to secure a dignified and exclusive place for us to bury our dead. Historically, land has been purchased for a Jewish cemetery before a synagogue or school is built.

There are, however, circumstances that may prevent Jews from being buried in a Jewish cemetery. For example, in times of war Jews have been buried, with the consent and approval of the Jewish community, in "general" cemeteries. Jews in small towns where purchasing a Jewish cemetery is not practical have had to turn to the "general" or nondenominational cemetery. Rabbi Walter Jacob wrote a teshuvah on this subject and concluded that burial in a "general cemetery" is permissible, but encouraged finding a way to designate, within that "general cemetery," a section that clearly marked it as a Jewish burial ground.[3] But in our case, in which there is no circumstance of emergency and there is obviously no shortage of Jewish burial grounds, the rabbi has done well to voice his objection to disinterment. We agree: the son should not disturb the remains of his father to reinter those remains in a nondenominational cemetery.

We recognize, of course, that the threat of legal action requires that the rabbi with prudence, discretion, and good judgment. At times, such judgment requires that the standards of Jewish practice be relaxed so as to preserve communal peace (mipney darkhey shalom; see M. Gitin 5:8-9). The rabbi's primary duty, however, is to teach and expound those standards to the community. The rabbi has done this well thus far, and we are confident that he will continue to do so.

NOTES

1. These teshuvot were written by Rabbi Walter Jacob and published by the C.C.A.R. in Contemporary American Reform Responsa, nos. 110 and 111.

2. Rambam (MT, Hilkhot Avel, 14.15) followed the Yerushalmi in permitting disinterment in order to rebury in an ancestral plot. Yosef Karo (Shulchan Arukh, Yoreh Deah, 363.1) combined the exception given by Rambam with two more from Ramban concerning reburial in HaAretz and reburial to avoid danger to the grave site.

3. Contemporary American Reform Responsa, #105.

If needed, please consult Abbreviations used in CCAR Responsa.