CCAR RESPONSA
American Reform Responsa
95. Burial on a Holy Day
(Vol. XXXI, 1921, pp. 53-55) The seventh day of Passover this year (1921) having fallen on a Friday and the first day of Shavuot on a Sunday, an inconvenience was caused in funerals which had to be postponed two days. The question, whether a funeral may be held on a holy day, was answered exhaustively on a similar occasion by the present writer in the American Israelite, April 28, 1910, and October 10, 1912. The arguments shall be briefly repeated and a few new references added. The question is definitely answered by reference to Talmud, Beitsa 6a, codified in Shulchan Aruch, Orach Chayim 256.1-3, which clearly says: “If a body has to be buried on the first holy day, non-Jews shall perform the labor, even if the death occurred on the same day, and it would be possible without danger of decomposition to keep the body until the next day. This, however, refers only to the work of making shrouds, while the dressing of the body, heating of water for washing it, carrying out the body and placing it in the grave may be done by Jews. If one died on the first holy day, it is prohibited to keep the body overnight1 until the second holy day in order that Jews may perform the services at the funeral.” This should settle the question. Only a few references to actual practice shall be added because of their special significance. Eleazar Fleckeles, Acting Chief Rabbi of Prague (Jewish Enc. V, 408), known as an opponent of the synagogue reforms introduced in the Hamburg Temple and otherwise as a rigorist in ritual law, was buried on the seventh day of Passover, 1826 (Jahrb. Jued. Lit. Gesellsch. X, 29, 1913). Mendel Kargau of Fuerth, one of the last representatives of Orthodoxy in this historic community, was buried on the first day of Rosh Hashana, 1842 (ibid., VIII, 118, l9ll). One must not forget that in these Orthodox centers funerals were conducted by the Chevra Kadisha, which included the most Orthodox elements so much so that they often came in conflict with the sanitary authorities, who–as in the case of early burial or of burying the dead on the bare ground–vetoed practices hallowed by tradition (see Jewish Enc. VI, 300). If Fuerth and Prague allowed funerals of rabbis celebrated for their orthodoxy to be held on holy days, public sentiment did not take any umbrage at it. Indeed, we find Shabbetai Cohen, the noted rigorist among the glossarists of the Shulchan Aruch (17th century) speak of a funeral on holy days as a common practice to which he has only the one objection that Jews, while not performing the labor of digging the grave, allow themselves the right to fill it in (Yoreh De-a 339.7). Just to prove the general practice, the following cases may be quoted at random: The Scotch Missionaries, McCheyne and Bonar, visiting Tarnapol, October 1, 1839, which was the festival of Shemini Atseret, witnessed a funeral in that city which persecuted S.L. Rappaport as a radical reformer (Mission of Inquiry, p. 447, Philadelphia, 1843). Simon Tarlau, son-in-law of Elijah Guttmacher of Graetz, the last “Wunderrabbi” in Germany, died September 29, 1886, and was buried on the next day, which was the first day of Rosh Hashana (Der Israelit, 1886, p. 1413). Two cases of the same kind are reported among the Orthodox of S.R. Hirsch’s “Mensch-Jisroel” school (ibid., 1893, p. 643, and 1920, no. 22, p. 3), and one from the darkest Chasidic corner of what used to be northern Hungary, where R. Hirsch Spira of Muncacz died on the first day of Sukkot and was buried on the same day (Der Isr., 1913, no. 45, p. 9). For completeness, R. Menachem Azariah Meir Castelnuovo of Leghorn may be quoted (1722-1847). He was probably the last legal authority of Italy, and uncompromisingly Orthodox, and he reported a funeral on the first day of Rosh Hashana (Misgeret Hashulchan, p. 207a, Leghorn, 1840). The only question to be considered would be the influence on the public, that–not knowing the clear law and the well-established practice–would consider a funeral on a holy day a violation of sacred sentiment, and the case would therefore fall under the prohibition of “Asur lechacham lehatir davar hatamuah, shenir-eh lerabim shehitir et ha-asur” (Yoreh De-a 242.1), giving offense to religious people. To this we have to answer that a rigorist such as Shebbetai Cohen declares that this does not comprise a case in which reasons for the decisions are given (ibid., 17) and that we cannot be held responsible for the ignorance of the public or even of an occasional rabbi. Finally, even rigorous authorities declare that we have no right to increase the burden of the law, as is strongly expressed in the Talmudic phrase: “Lo dayecha ma she-asera lecha haTorah, ela she-ata mevakesh la-asor aleicha devarim hamutarim” (Yer. Nedarim IX.l). And the greatest casuist of modern times, Chayim Hezekiah Medini (born in Jerusalem, 1834, died in Hebron, 1904), also a rigorist, who would not allow a kindergarten to be opened in Hebron, states: The rabbis have no right to prohibit something which is clearly permitted in the law (“Davar shehetero meforash baTorah, ein beyad chachamim le-esor,” Sedeh Chemed, p. 49a, Warsaw, 1896).G. Deutsch(Vol. XXXII, 1922, p. 80)Resolved, that the Central Conference of American Rabbis disapprove of conducting Jewish funerals on our holy days, except where the immediate burial is demanded in the interest of public health.Samuel S. CohonHenry EnglanderAbraham J. Feldman Although in the Codes of Jewish Law there is no express prohibition against conducting funerals on the festivals (Yearbook, vol. XXXI, p. 53), yet, in deference to Jewish custom and sentiment, your Committee is of the opinion that the members of the Central Conference of American Rabbis should abstain from conducting funerals on these days, except where public health demands.The recommendation of the Committee was adopted.Resolution adopted by the CCAR1. The Rabbis declare it as a duty, based on Deut. 21:23, to bury the dead on the day of the death (Sanh. 46a; Yoreh De-a 357.1). For the account of the controversy between Jacob Emden and Moses Mendelsohn on the question of how far the Jews must yield to the State law which required postponement of the funeral, see Graetz, Gesch. XI, 32; Sulamith IV, 2, pp. 155-159. Moses Sofer (Responsa to Yoreh De-a, no. 338) still insists on this practice.
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