THE UNDERTAKING BUSINESS
Since the burial of the dead is a commandment, a mitzvah, incumbent upon every Jew, how is it permissible to have an undertaking profession working for personal profit? On the continent of Europe, all such work is done by the Chevra Kadisha, and in England each congregation takes charge of the burial of its members. Only in America has this mitzvah become a private industry, giving profit to individuals or companies. Is not this repugnant to the spirit of Jewish law? (Asked by Mark King, Brooklyn, New York.)
THERE IS NO doubt that the mitzvah of burying of the dead was highly cherished as a religious duty and, therefore, that in all the old Jewish communities, the organization of men who undertook this mitzvah— which was called the Chevra Kadisha, the “sacred society”—was an honored organization to which it was a privilege to belong. The practice with regard to funerals as it developed in England was an outgrowth of this time-honored voluntary method of dealing with the dead. In England each congregational grouping has, as it were, its own burial society. Each member of the congregation, as part of the privilege of membership, will have the funeral needs of his family attended to by the congregation. It therefore seems surprising to the inquirer, who has lived in England, to find that in America the tasks of attending to funerals have become a business, i.e., the funeral director business, from which individuals make personal profit. Is not this situation a violation of the spirit of Jewish law, by which the community is required to perform these melancholy tasks freely as amitzvah?
It will be of interest to the inquirer to know that there is one city in America in which funerals are conducted, not for private profit, but as a communal responsibility. The Sinai Memorial Chapel in San Francisco is governed by a committee composed of representatives of all shades of Jewish religious opinion and is conducted as a communal service. The chapel owns a number of cemeteries and conducts at least ninety percent of Jewish funerals in San Francisco. Whatever profits are made by the chapel are regularly distributed to institutions of Jewish education, to hospitals, and to causes in Israel. But this communal burial service is exceptional in America and is due to special historical reasons, perhaps because no Jewish undertakers came to the Pacific Coast in the early years. Other than this one exception, funeral direction in the rest of America is conducted as a regular business for profit.
This unusual fact, exceptional from the world-Jewish point of view, is due to historical reasons which explain and indeed justify the private undertaking business. The situation can best be understood by analogy with the honored institution of the rabbinate itself. The rabbinate was originally understood to be, also, a personal mitzvah for which there could be no pay. The Mishnah clearly states (Bechoros 4:6): “If a man takes pay for making a legal decision, all his legal decisions thereby become void.” The rabbi as judge was not permitted to take pay, nor originally was a teacher of the Torah permitted to take pay. He was not allowed to make “worldly use of the crown of the Torah” and “to make it a spade to dig with” (Ethics of the Fathers 1:13 and 4:5). Nevertheless, by the fourteenth century the great mitzvah of judging and teaching began to become a profession. This was due to historical circumstances. The first step seems to have been recorded by Simon ben Zemach Duran, who in 1390 was exiled from the Spanish territories to North Africa, where he could not make a living from his medical profession. He therefore accepted pay for his rabbinical work. He apologizes for this in a series of responsa (#142 to #148), and from then on the mitzvah of guiding a community as a rabbi became a profession. The chief sources discussing this change are Joseph Caro in his Kesev Mishnah to the Yad (Hil. Talmud Torah, Chap. 3; Moses Isserles in the Shulchan Aruch, Yore Deah 246:21; also to Even Hoezer 154:21; also Tosfos Yom Tov (Yom Tov Lipmann Heller) to Mishnah Bechoros 4:6. Then there are the responsa by Joel Sirkes (Bach) 52; Meir Eisenstadt (Panim Meiros I:79); Moses Sofer in his responsa (Choshen Mishpot 164). In spite of this development, Obadiah Bertinoro, in his commentary to Mishnah Bechoros 4:6, says he was shocked at the rabbis in Germany, who took fees for officiating at a divorce proceeding, and also at the witnesses, who took fees for signing the divorce document (the Mishnah also prohibits witnesses from taking fees).
Exactly the same thing that has occurred with the mitzvah to teach has occurred with the mitzvah to attend to the dead. In Europe and in other lands, there were well-established communities with the time-honored custom of performing these sad, necessary duties through the communal committees. By the way, these committees themselves did not hesitate shrewdly to estimate the financial status of the deceased in order to know what to charge for a grave, but the funeral work itself was done as a mitzvah by the committee. In America individual Jews came from these historic centers. They were fragments of the larger communities of Europe. If the little synagogue established in America did have a Chevra Kadisha, it did not have the means to conduct the funerals, to own a cemetery, and to bury the dead. Special groups had to be organized, lodges, etc., to buy cemeteries. The little congregations could not afford it. As a result, in this new land an inevitable change took place. The funeral-directing profession and business developed to do what the tiny congregations of immigrants could not do. Therefore exactly what happened to the rabbinate centuries earlier, happened to the matter of burial here in America. It became professionalized, and as Moses Sofer said of the rabbinate in his responsa Yore Deah 230—that since it is a profession, the rabbi is entitled to payment for his work—so the funeral directors are entitled to pay and profit for the important communal function which history has forced upon them.
The development of the profession and business of Jewish funeral directing is almost entirely an American phenomenon. Since this is a definite deviation from the old Chevra Kadisha tradition, it would be reasonable to expect that the American Jewish Orthodox rabbinical literature would be full of the subject. So it is rather remarkable that there seems to be no discussion of the undertaking business in all the responsa written by the Orthodox rabbinate, as far as I can find. All I could discover was a passing and rather scornful reference made by the late Rabbi Jekuthiel Greenwald of Columbus, in his discussion of the laws of keriah, cutting the garments ( Kol Bo 28). He mentions Jewish undertakers when he refers to the rather widespread American Jewish custom of pinning a ribbon on the garments and cutting the ribbon instead of the garments. He calls this “amockery, a ludicrous evasion of the law,” which requires the mourner to cut the actual garments. In discussing this American Jewish custom of cutting a ribbon instead of the actual garments, he says scornfully, “Now that the number of Jewish undertakers has increased, many violations of the law are occurring; for these men do not listen to the instructions of the rabbis. They make their own decisions.” But even Greenwald, speaking thus angrily of those undertakers “who take the law into their own hands,” also says in a parenthesis, “but all honor to the individuals,” in other words, all honor to those undertakers who are strictly Orthodox.
It is significant that in this rather denunciatory paragraph, the rabbi objects only to the fact that many of the undertakers are not strictly Orthodox; but he raises no objection at all to the fact that undertakers receive pay for performing what should be a free-will mitzvah. Indeed, the very fact that no objection (as far as I can see) is found in any other modern Orthodox responsa in America, where certainly the rabbis are in constant contact with Jewish funeral directors, indicates clearly in itself that there can be no basic objection to this professional service. In other words, it is clearly recognized by all, if only by the silence of the rabbinical scholars, that just as the rabbinate itself, due to the changes of time, ceased to be a free-will service and needed to become professional, so too the free-will duty of burying the dead had also to become professional. However, the basic religious ideal of public service still remains inherent in both professions. Thus and only thus are both professions justified in the law and ethics of Judaism.