A FORMER CHRISTIAN CEMETERY
A Methodist church intends to sell its present cemetery. It will remove the bodies buried there and rebury them in another church cemetery. May a Jewish congregation buy the vacated acreage for use as a Jewish cemetery? (Asked by Rabbi Richard J. Sobel, Succasunna, New Jersey.)
IT IS AN established custom for Jewish congregations to have their own local cemetery in order to obviate the necessity of transferring the dead from one city to another (see the responsa of Isaac Spektor, Eyn Yitzchok, Yore Deah #34, and Greenwald, Kol Bo, p. 162). Even if it is necessary by municipal ordinance to participate in a joint cemetery, the Jewish community must have a separate Jewish section in which it will have complete control over the burials. Therefore the intention of this congregation to buy a cemetery of its own is to be looked upon as a laudatory mitzvah which might outweigh many possible objections. But what objection can there be to the fulfillment of this mitzvah by the purchase of land which had been vacated as a Christian cemetery?
First of all, it should be stated that a Christian cemetery, even with all the Christian graves in it, is looked upon in Jewish law with respectful sanctity. The Talmud in Taanis 16a discusses the custom of going to the cemetery to pray during fast-days. The question is asked there what the purpose is of going on fast-days to pray in the cemetery. The Talmud gives two possible answers. We go in order
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unbearable intrusion in the Jewish cemetery, it would certainly create ill will and harm the Jewish community. Much is permitted in Jewish law to avoid ill will. An analogy is not irrelevant here: A mezuzah is required only in a house inhabited by a Jew. If a Jew moves out of a house and a Gentile will then occupy the house, the mezuzah must be removed. However, says the great authority Moses Isserles, if removing the mezuzah will create ill will, it may be allowed to remain in this house occupied by a Gentile.
In the light of the above, what should the Jewish community do? It is an established Jewish custom that no Gentiles be buried in a Jewish cemetery. This incident gives the Jewish community the right to insist on guarantees that this shall not occur again. If family or communal situations are such that the reburial of these bodies in a Gentile section will not create ill will, that should be done. If that cannot be done, then if it will not create ill will, the bodies can be moved and buried near the fence, as is done in some traditions with Jewish suicides. If that cannot be done either, without creating ill will, then they should be left where they are. The body of a Gentile involves obligation and a certain sanctity in Jewish law. Its presence likely to leave the ground with all the former graves open, but will undoubtedly run a bulldozer over the acreage to level the ground off. In any case, as the Shulchan Aruch says clearly, only an erected grave can be forbidden, but not the ground itself.
As a matter of relevant historical fact, there is a record of a Jewish congregation that bought back a cemetery that was used as a Christian cemetery. Greenwald (Kol Bo Al Avelus, p. 168, note 9) refers to the responsa of Jacob Weil (#94), who tells of the congregation in Wuerzberg, whose cemetery had been confiscated by the ruler when he expelled the Jews from the city. He sold the cemetery to Gentiles (presumably to be used by them as a cemetery). When the Jews were permitted to return to Wuerzberg, they wanted to buy the cemetery back. The specific question asked of Jacob Weil was whether they might cut down the trees and sell the lumber to raise funds to buy back the cemetery. They naturally wanted to buy back their old cemetery, and there is no record that they felt any ground for hesitation because during their exile it was used as a Christian cemetery.
To sum up: The mitzvah of owning a cemetery should outweigh any minor objection. Even a Christian cemetery as such has a respectful sanctity in Jewish law. The prohibition against reuse of graves applies specifically to graves dug for one’s parents and also to built-up mausoleum-type graves. The earth itself is not prohibited. Finally, there is a record of a historic congregation willing to buy a cemetery even though it was presumably used as a Christian cemetery.