CORR 200-204



A Jewish doctor had been a member of the congregation for thirty years. In the last few years he had discontinued his membership. Now there are officers of the congregation who wish to deny this ex-member the right of burial in the congregational cemetery. Is there any Halachic or moral justification for this refusal? (Asked by Rabbi Joseph Gitin, San Jose, California)


EACH CONGREGATION has the right to make certain restrictive rules as to non-members using the congre-gational facilities and the services of the rabbi. However, these restrictions should be less stringent in cases of funerals than weddings. The congregation should permit the rabbi to officiate at the funerals of nonmember relatives of members.

The reason for the distinction is, first of all, a practical one. A couple can be married anywhere, in a hall or in the home; but if there are no other Jewish cemeteries in the city, then unless a grave in the congregational cemetery is made available, the funeral cannot take place. There is a further reason for the congregation to be less restrictive in its rules governing funerals. The community has, indeed, the duty to encourage marriage, but it has no specific responsibility that this particular couple be married to each other. But with regard to a person who is deceased, the congregation has a duty to him specifically. They have a responsibility that this body be properly buried.

The specific obligation needs explanation. There is, indeed, what might be called merely a random reference to the right of the community to prohibit burial to certain classes of Jews. In the laws of ban and excommunication, Yore Deah 334:6, Nachmanides is quoted by Isserles as saying that if the Bes Din wishes to be extra strict against a man who is under the ban, they may refuse to circumcise his sons and refuse to bury him if he dies. This permission to refuse to bury a man who has been excommunicated is derived from a statement in the post-Talmudic treatise, Evel Rabatti, Chapter 2, where the statement is made that when criminals, people under ban, apostates, etc., die, we do not tear our garments for them, nor do we engage in any burial activity for them (Eyn Misaskin).

This apparent general permission to have nothing to do with the burial of certain classes of sinners has never become the rule of Jewish law. It could not possibly have become the rule because the whole law of our duty to bury (i.e., the Mitzvah of burial) is derived from Deuteronomy 21:25, where we are told that the body of the criminal who has been executed must not be allowed to remain unburied overnight. How, then, can this general commandment to bury all Jews, even sinners, be reconciled with the statement in Semachos (followed by Nachmanides) that we may not engage (Eyn Misaskin) in any burial activities for sinners? The contradiction is not a real one. All the authorities from the earliest to the latest state that what the tractate Semachos means by Eyn Misaskin is that we do not engage in any of those burial activities which honor the dead, such as keriah, eulogy, procession, but the duty of burial remains our duty.

There is, indeed, some discussion in the law as to whether we are in duty bound to bury an apostate. The great Hungarian authority, Moses Sofer, argues that since we have a duty to bury all the criminals as mentioned in Deuteronomy, and those criminals certainly included idolaters, apostates, etc., then an apostate too should have burial in the Jewish cemetery. See all the discussion and references in Recent Reform Responsa, beginning with page 127, “Burial of an Apostate.” (By the way, on page 130, middle of the page, the reference to Yore Deah should be, not 3 3 3: 3, but 3 3 4:3.) At all events, let us say that the question of the burial of an apostate is still moot, but all other Jews have the right to be buried in the Jewish cemetery. Greenwald in his Kol Bo, page 193, states the law as follows: Every Jew, if he has not apostatized, is entitled to his place in the Jewish cemetery.

Of course, the congregation may not bury a wicked man next to a righteous man, and suicides may be buried in a separate section as was the custom in the past, usually near the fence, but every Jew is entitled to Jewish burial.

Nachmanides’ prohibitory arguments mentioned above dealt with a man actually under ban, and the restrictions mentioned in the tractate Semachos dealt with sinners. But the question asked here does not deal with a man under the ban (which in modern Jewish communities is not practiced anyhow) nor does it deal with a sinner. It deals merely with a non-member and a respectable citizen of the community. Now it is an established custom that people pay for their cemetery lots and it is also a custom practiced for centuries that the price charged by the Chevra Kadisha varies with the family. Therefore the congregation is within its rights to charge more for non-members than for members; but beyond this, it must be clearly stated that every Jew is entitled to Jewish burial, and it is the mandate of our religion (a positive commandment) that we provide such burial.

Of course the situation in our modern American communities is not quite the same as that which prevailed in the older European communities. There, there was one united community and all Jews were taxpaying members of it. There was one cemetery, and if a man were refused burial in this local cemetery, he could not easily find Jewish burial at all. But today, in our large cities there are many independent congregations and many Jewish cemeteries, and so if a man is refused burial in one, he may find burial in another. Therefore it is understandable and permissible for a congregation to make certain restrictions, to charge more perhaps for a non-member than for a member, to refuse the services of a rabbi at the funeral service except for members and their relatives. But whatever restric tions the congregation may make, the fact remains that every Jew has the right to burial in a Jewish cemetery and to bury the dead is our duty, which we have no right to evade. Certainly in a smaller community where there is only one Jewish cemetery, it may well be deemed a sin to force the family to transport the body to another city.

Finally, since this physician had been a member of the congregation for many years, he undoubtedly has close relatives who are members and also many close friends among the membership. Any refusal to bury him, besides being against Jewish law and custom, would cause grief to many who deserve consideration from the congregation.