GENTILES BURIED IN A JEWISH CEMETERY
The cemetery of a small Jewish community is actually a section of a large general cemetery. Through some error, possibly, some Gentiles were buried in the Jewish section. Certain pious members of the community are indignant at this fact and wonder what to do. What is the Halachic status of this situation? (Asked by Louis J. Freehof, San Francisco.)
THE SPECIFICALLY Jewish cemetery does not have a firm status in Jewish law, as does, for example, the synagogue. However, it has become an established tradition to have a separate Jewish cemetery. In the days of the Mishnah, there were family cemeteries but not communal cemeteries. The later-developed tradition of a separate Jewish communal cemetery also had the form of a Jewish section in a general cemetery (see Reform Responsa, p. 161). And when such exist, here and in Europe, it is clearly understood that only Jews may be buried in the Jewish section. But what is to be done under the special circumstances in the question asked, when for some reason, Gentile bodies were placed in the Jewish section? Does this fact affect in any way the sanctity of the Jewish cemetery?
The answer to this question cannot be given precisely because, as far as I can recall, there is no reference to such an occurrence in the past legal literature. So the question of the effect of the presence of the Gentile bodies must be decided by analogy with past recorded attitudes to the law.
First, it must be understood that the Jewish law has a definite reverence and even a religious obligation to the bodies of non-Jews. The law as stated in Gittin is that we are in duty bound to visit the sick of Gentiles, to bury their dead, and to comfort their mourners. To which, however, Rashi says: to bury their dead but not in the Jewish cemetery (he says this even though the law distinctly says, “We bury their dead with the Jewish dead”). So Gentiles may not be buried in the Jewish cemetery, but we do have a Jewish duty to give them burial if needed.
Now, what is the effect of the presence of these bodies in our cemetery? Do they inhibit our own religious functions? The answer to this is definitely no. The Talmud in Taanis says that one of the ways of humbling ourselves during fast-days is to visit the cemetery. If there are no Jewish cemeteries available, we may visit on fast-days the Gentile cemeteries, so as to feel humble in the presence of the dead. So it is clear that although the dead are all Gentile, as in a Gentile cemetery, the Talmud does not consider that their presence hinders but, on the contrary, helps a religious purpose.
Now there is a third and negative point to consider: the question of good and ill will. If the Jewish community in this small town insisted that the presence of the Gentile bodies is intolerable (which it really is not), and if the community insisted on having the bodies removed as an 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 does not inhibit the mood of sanctity. Therefore, use this occasion for reassertion of the right of exclusive burial, move the bodies if it will not create ill will to do so, otherwise let them remain. The cemetery remains Jewish and sacred.
Added note: There is considerable discussion in the law as to who may be buried beside whom, the righteous besides the wicked, a man beside a woman not his wife. If the Gentile bodies referred to are buried in the row of graves, i.e., not in a separate family group, some pious people may object to burial alongside. Therefore it might be practical to leave the space of one grave between.