Responsa

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CCAR RESPONSA

New American Reform Responsa

203. Yews in a Cemetery

QUESTION: May yews be planted in our Jewish cemetery? Some individuals have objected stating that this plant has specific Christian connotations. (David Weill, Albany NY)ANSWER: Our Jewish tradition is very specific about customs of non-Jews which are prohibited, and those which are permitted. Avodah Zarah (11a) made it clear that only customs which are directly connected with idolatrous worship were prohibited (Shulhan Arukh Yoreh Deah 178.1). For this reason, it would not be wrong for a Jew to wear garments akin to those on non-Jews, but he should not wear garments which are specifically used in church ritual. The same would be true of the use of non-Jewish music in Jewish services. As long as it is folk music, and not specifically associated with a Christian service, it would be appropriate as shown by Joel Sirkes (Bayit Hadash #127). Yews and other evergreens such as junipers, hemlocks and cedars have frequently been planted in cemeteries throughout the world as they are evergreens and, therefore, enhance the cemetery in all seasons. Some individuals have associated these evergreens with the promise of eternal life. We have no specific association between that thought and any kind of plant, although the hope remains part of the Jewish tradition. There would be no reason for avoiding any kind of evergreen in a Jewish cemetery. Any Christian symbolism may be associated in the popular mind is vague and is not universal. Such plantings would not be an imitation of the non-Jewish world around us. They are permitted.September 1988

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ARR 371-373

CCAR RESPONSA

American Reform Responsa

115. The Vandalized Cemetery

(Vol. LXXXIV, 1974, pp. 48-50)QUESTION: The congregation in Poughkeepsie has been given the title to an old Jewish cemetery which has not been used for more than seventy years. The neighborhood in which the cemetery is located has become a slum. It is impossible to keep the cemetery decent. It is constantly being desecrated. It would cost a great deal of money to shield this cemetery from abuse, and even so, it is doubtful whether any effort could succeed. Besides, there is a possibility of neighborhood urban renewal, and it will be difficult to keep the cemetery anyhow. What should be done in this case? (Rabbi Henry Bamberger, Poughkeepsie, New York)ANSWER: This tragic situation is, alas, not new. It has arisen time and time again in the past. In Europe, frequently the ruler of the neighborhood would send his cattle to graze in the Jewish cemetery. Such a case is mentioned by Israel Isserlein (14th century) in his Terumat Hadeshen, #284. This was deemed to be a particularly offensive desecration, with the cattle trampling over the graves and befouling them, and especially because the Talmud specifically forbids grazing cattle in the cemetery (Megila 29a). Worse than that, sometimes the government would want to run a new roadway through the cemetery. Sometimes–still worse–the government would want to repossess the cemetery. All these situations came up again and again, and the questions always are: What can we do? How much effort should we expend in the attempt to overcome these various threats? Isserlein himself suggested that the congregation should not tax itself too heavily in order to bribe the officer of the king to keep his cattle out of the cemetery. After all, it is not the Jews themselves who are committing this desecration. As for the second situation, this arose in the city of Cracow, where some of the rabbis, including Moses Isserles, are buried (cited by Moses Feinstein in his Igerot Mosheh, Yoreh De-a 247). Of course, great effort should be expended to prevent, if possible, so permanent a desecration. But what if it fails? And what to do when the ruler repossesses a cemetery entirely? In the latter case, of course, there is no recourse other than disinterment. In fact, Moses Feinstein (who is the present head of the Agudat Harabbanim in America) suggested disinterment in the case of the old cemetery in New Orleans, which was in the same condition as the one in Poughkeepsie, mentioned in the question. He suggests that disinterment is the only permitted solution (Igerot Mosheh, Yoreh De-a 246), and he prescribes that while all the bones taken out of the old cemetery need not be put in separate graves, and may be put in one large grave, nevertheless they should not be mixed up with each other, but kept separated by ridges of earth or stone. This solution–disinterment–is, of course, the optimal solution, for once the bodies or the bones are removed, there is no sanctity left in the land from which they were removed. The land is then considered Karka Olam, the world’s earth, which cannot be prohibited for any ritual reason. Nevertheless, although Moses Feinstein’s suggestion is basically the best, it entails many difficulties. If the cemetery has not been used for almost seventy years, the bones, while they still exist, may well be scattered and unrecoverable. In this regard, it must be remembered also that disinterment is always a cause for sorrow. In traditional law a person must sit on the ground as in Shiv-a for a whole day while the bones of his close kin are being disinterred (Yoreh De-a 403.1). In fact, Moses Sofer, in the case of Budapest, where the whole cemetery was taken away from the Jewish community, actually forbade the Chevra Kadisha to make public the date and the hour of the disinterment, so that a large portion of the community should not need to sit on the ground as in Shiv-a (Chatam Sofer, Yoreh De-a 353). Perhaps the best thing to do under the circumstances would be, first of all, to remove all the tombstones and to set them up in a special place in the existing protected cemetery. Thus, the memorial of the departed will not be forgotten. Secondly, if there are traceable descendants of those buried in that old cemetery, they should be gathered in a meeting and asked to decide whether they are content with the preservation of the tombstones, or would also wish that the bones be disinterred. The chances are that they will be content with leaving the bones at rest, since they will very likely consider that it is to the honor of the dead not to disturb their bones, and much is permitted in Jewish legal tradition if it is for the honor of the dead. Finally, the community can do what Rabbi Moses Goldberg of New Orleans suggested in his question to Moses Feinstein–namely, that a layer of earth three handbreadths or more be spread over the entire cemetery. Moses Feinstein rejects this; yet it is, nevertheless, a possible suggestion, since when a layer of earth that thick–three handbreadths, or, according to the Shulchan Aruch, six handbreadths (Yoreh De-a 362.4)–is laid down, the rights of those already buried below have been fully protected, since, if need be, new bodies may then be buried over the old graves. While it is debatable that such an earth-covering would cancel the sanctity of the old cemetery, at least the rights of those buried in it would be completely provided for. One additional thing, however, must also be provided for, if possible–namely, to see to it by all means available that if the area is taken over in an urban renewal (the possibility of which is suggested in the question), then this particular section of land should never be dug up for foundations for houses (which would disturb and scatter the bones of the dead), but should become one of the open areas converted into a park; and the very trees and grass would be an evidence of respect to those who sleep below the surface.Solomon B. Freehof

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NARR 319-322

CCAR RESPONSA

New American Reform Responsa

200. Selling a Portion of a Cemetery

QUESTION: The congregation has owned a large tract of land as designated for use as a cemetery and a major segment of it has been developed. Approximately half of that has been used for burials. Now the congregation wishes to know whether the undeveloped tract of land may be sold. Is this considered sacred ground and part of the cemetery? (Dorothy Weiss, Colorado Springs CO)ANSWER: Cemeteries and the places in which our dead were interred long held a special sacred place in Judaism. This began with the family burial site which Abraham selected for Sarah. The Cave of Makhpelah (Gen. 23; 25.9; 49.31; 50.13). Later on we find that the Kings of Israel had their own burial plots (II Kings 13.13; 15.7). The custom of family burial sites continued on into the period of the Talmud (B B 100a, B; San 47a; M Shek 2.5; Erub 5.1). Throughout this period communal grave sites were also used (II Kings 23.6; Ger 26.23; Hag 3b; Nid 17a; Sem 49b). All of these cemeteries and those discussed in later literature were communal and it was the obligation of the entire community both to establish the cemetery and then to care for it appropriately (Ezekiel Landau Noda Biyehudah I, Yoreh Deah #89; Isaac Spector Ein Yitzhoq Yoreh Deah #34). The land was considered sacred and no profane use of it could be made. However, it was only matters directly related to graves from which no one was allowed to benefit (Shulhan Arukh Yoreh Deah 368.2 and commentaries). Of course, the cemetery was to be protected and even if Jews moved away from the community it was to be looked after by a neighboring community (Greenwald Kol Bo al Avelut pp 164; Moshe Feinstein Igrot Mosheh Yoreh Deah #246). Furthermore, we should note that there are many customs which have risen around the cemeteries care and most of the tradition which surrounds cemeteries is minhag. The sale of a section of a cemetery was very rarely discussed. Generally once a piece of land had been acquired for use as a cemetery and an internment had taken place, it acquired a special status and so needed to be treated with respect. This was true of both the area in which internments were taking place and sections which remained vacant (Meg 29a Shulhan Arukh Yoreh Deah 368; Moses Sofer Responsa #335). There is some disagreement among the more recent Orthodox authorities but the sale of a cemetery or sections of it which will not be used for burial. Abraham Gumbiner permitted it (Magen Avraham to Orah Hayim 153.12), while the German authority David Hoffmann prohibited it (Melamed Lehoil Yoreh Deah #125). In a large number of American cities we are faced with a somewhat different situation than those of Central Europe. In many communities small congregations, founded late in the nineteenth or early in the twentieth century by groups of immigrants, quickly established cemeteries. As they often were able to acquire only the cheapest and most inaccessible pieces of land, these cemeteries are on hillsides and steep ravines or in other areas difficult to reach. Furthermore, many of these congregations were forced to move as neighborhoods changed, and if they did not have the means to do so were simply closed and the cemetery abandoned. It is clearly the responsibility of the rest of the community to look after these cemeteries, but it is not their responsibility to retain all the land originally designated for cemeteries. As the American cities have grown and as modern technology has made formerly inaccessible sites available for use, the land originally designated for these cemeteries has frequently risen in value. It would be perfectly appropriate to sell unused segments of these cemeteries in order to provide necessary care for the sections in which burials have taken place. This is an appropriate use of the cemetery land and would be in keeping both with tradition and with the original intent of the founders of the cemetery. In your instance you are faced with other American phenomenon with congregations acquiring large tracts of land, and then discovering for a variety of demographic reasons that they may now wish to dispose of it in order to maintain the remainder of the cemetery, to help with congregational projects, and to limit the amount of land for which they must care. Those areas in such cemeteries which have remained wild and totally undeveloped may be sold while those areas which have already been developed and therefore really designated for cemetery use are to be considered part of the actual cemetery and may not be sold. Generally if the congregation is substantial and the cemetery is in a protected area where there is no danger to the graves, then even large plots of land should continue to be held for the more distant future. My own congregation in Pittsburgh holds such a very large area, probably sufficient for burial for several centuries, and it would be appropriate unless circumstances change drastically to continue to retain this land and use it for burial sites as originally intended. We may then summarize that it is preferable for a congregation to continue to use lands designated for that use unless there is a very good reason for the sale of a portion of this land. It may then be sold and the funds derived from it should be used for the care of the cemetery or an allied religious purpose.January 1991

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CARR 174-175

CCAR RESPONSA

Contemporary American Reform Responsa

113. Responsibility for

Cemeteries

QUESTION: What responsibility does the community have

towards the care of Jewish cemeteries? What is the responsibility for graves which have

subsided or not been filled properly? Can soil other than that removed from the grave be used to

fill a grave? (M. Witkin, Reseda, CA)ANSWER: Traditionally one of the first acts of

any Jewish community was that of setting aside land for a cemetery. This often preceded the

creation of a congregation or the building of a synagogue, as for example, herein Pittsburgh,

where the Troy Hill cemetery antedated the charter of the Rodef Shalom Congregation by more

than a dozen years. Congregations made every effort to own their cemeteries outright (Ezekiel

Landau, Noda Biyehudah, I, Yoreh Deah #89; Isaac Spector, Ein Yitzhoq Yoreh

Deah #34). After purchase, the land of the cemetery was treated with great respect, both the

sections which had already been used for graves and those which were still vacant (Meg. 29a;

Shulhan Arukh Yoreh Deah 368; Moses Sofer, Responsa #335). Some authorities,

like David Hoffmann, prohibited the sale of a segment of a cemetery if other sections had

already been utilized for graves (Melamed Lehoil Yoreh Deah #125). Only if there was no

possible future utilization of the cemetery could segments which had not yet been used for burial

be sold (Abraham Gumbiner Magen Avraham to Orah Hayim, 153.12). It is

incumbent upon the Jewish community to look after cemeteries even if they have been

abandoned by their community or those who originally founded them (Greenwald, Kol Bo Al

Avelut, p. 164; Mosheh Feinstein, Igrot Mosheh Yoreh Deah #246). If all Jews have

moved from a town this duty must be borne by a nearby community. Such care refers

to the cemetery generally. It means that damage caused by flooding or subsidence must be

properly repaired. Furthermore, the entire cemetery must appear neat. Lawns, shrubs, trees and

fences must be appropriately maintained. Any individual grave should be filled with earth taken

from it, or similar soil if this is not feasible. Most states have provided for permanent

funds which must be set aside for the perpetual care of cemeteries. These endowments are

designed to provide general care for the cemetery; frequently provisions for the maintenance of

individual graves may also be made in perpetuity in accordance with the local cemetery’s policy.

Such funds placed in trust must be utilized only for the maintenance of the cemetery or

individual graves.May 1985

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NARR 327-328

CCAR RESPONSA

New American Reform Responsa

204. Cemetery Plantings

QUESTION:Is it prohibited to plant trees and shrubs in our new Jewish cemetery? May individual plantings on graves be undertaken by various families? (N. Goldman, New York NY)

ANSWER: There are extensive discussion of plantings in the cemetery and their potential use. Low plants as well as shrubs and trees were generally found in Jewish cemeteries. The tradition has stated that grasses and flowering plants which grow within the cemetery, but not on graves may be used (Mahari Weill Responsa #94; Isserles to Shulhan Arukh Yoreh Deah 368.2). However, greenery which is on the grave itself must be used for the benefit of graves, or it should be burned (Ibid). Similar stipulations have been made about fruit trees. We can see from this that trees as well as other plantings have often been found on cemeteries.

Some responsa have discussed whether the fruit of such trees on the cemetery could be used to feed the poor in the community or its wood used to build a miqveh (Maharam Schick Yoreh Deah 358; Maharsham Responsa Vol 3 #257; Imrei Yosher Vol 1 #33; Shoel Umeshiv Vol 1 #336; Rivad Responsa#42). The more recent authorities have prohibited this; their stance reflects a general mood of restrictiveness. It may also show diminished economic pressures which made it less necessary to use anything from the cemetery for the welfare of the community.

A few Orthodox authorities have stated that it is improper to plant on the graves or in the cemetery (Responsa Avnei Nezer Yoreh Deah 476), and the wood or fruit from such plantings which existed from an earlier time could be used only in a very limited fashion (Greenwald Kol Bo al Avelutp 170).

We see, from these discussions, that there is little which prohibits the planting of trees in the cemetery. The lack of trees in some Orthodox cemeteries may be due to the space limitations of European cemeteries.

We should note a number of Biblical references to individuals buried under trees (Gen 35.8; I Sam 31.13) or in a garden (II Kings 21.18; 21.26).

Let us now turn to plantings on individual graves; we should be concerned about the uniformity of graves so that there is less distinction between the poor and rich members of a congregation (M K 27b; Shulhan ArukhYoreh Deah 352.1). Let me suggest that if it is the general custom in the community to have some simple plantings on the grave and if the cemetery provides a choice among these which would add no great burden on the survivors, it would be permissible. We should continue to encourage some uniformity in the graves both in the markers as well as in the plantings on the graves.

March 1990

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NARR 313-315

CCAR RESPONSA

New American Reform Responsa

197. Naming a Cemetery

QUESTION: An individual or family is considering the gift of a considerable sum of money so that the congregation can establish a cemetery. May the cemetery be named for an individual or a family? Does tradition mandate any particular wording for such a dedication? (Rabbi Michael M. Remson, Naperville IL)ANSWER: Although there is a good deal of literature about death, burial and mourning, there is nothing about the name which a cemetery may bear. Traditionally cemeteries have either been named for the sponsoring congregation or simply for the neighborhood in which they were located. The latter name was often assigned by the people as they wished to describe the location; it was not part of an official document. In other instances the cemetery was merely designated as “old” or “new” and bore no name other than the name of the city. I suppose that several considerations kept congregations from naming cemeteries for particular individuals. In ages past, and to some degree nowadays, there are superstitions connected with the cemetery and with death, so individuals feel that it is bad luck to have the cemetery bear the name of a living person or for that matter even the name of a family which survives in that community. Such considerations are of minor importance to us. The second reason may be the fact that the cemetery is the final resting place for all individuals in a community and some bad feelings toward a particular family may make it difficult for some individuals to be buried in a cemetery which bears the name of that person. However, the same considerations would play a role with classrooms or meeting halls in synagogues which frequently bear the names of both living and dead donors. There is also a third consideration if the cemetery is named after a family, will others be willing to provide funds to maintain it. So me funds, of course, are mandated by law; others are designated for individual graves, however, additional funds may be necessary and difficult to obtain when the cemetery bears a particular name. It may be wise, therefore, to attempt to include an endowment in the original gift and thereby avoid this problem in the future. None of these considerations are of great significance. If an individual wishes to provide the funds so that the congregation may obtain a cemetery then it may in gratitude be named after that individual.March 1990

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NARR 315-317

CCAR RESPONSA

New American Reform Responsa

198. Jewish Cemetery in a General Cemetery

QUESTION: Our congregation will establish its own cemetery through the purchase of a section of a municipal nonsectarian cemetery. Let me ask the following questions connected with it? (1) How should the Jewish section be separated from the general section as it will not be possible to erect a fence? (2) A number of our members are intermarried and therefore burial of gentile family members will occur from time to time, this will involve requests that non-Jewish clergy officiate. As this Jewish cemetery is part of a larger general cemetery, can we be more lenient and permit non-Jewish clergy to officiate or perhaps can we do so on the principle that each family lot is really a small individual cemetery, and that betokh shelo this would be permitted? (3) The general cemetery prohibits burial on Sunday or holidays. That would mean a potential delay of three days for burial on certain holiday weekends. Would that be permitted or should we reject the use of this cemetery for that reason? (Rabbi David F. Sandmel, Bangor ME)ANSWER: Let me turn to each of these questions separately. There is no difficulty in establishing a Jewish cemetery as part of a general municipal cemetery especially if the land is acquired through purchase. The Jewish section must be appropriately separated from the non-Jewish sections. This may be done through a fence or a permanent, continuous series of plantings. A fence line may be created through a permanent hedge, of hardy evergreen which will indicate clear boundaries at all seasons of the year. Tradition merely indicated that five feet should separate one cemetery from the other and that the barrier between the two cemeteries should be four feet high, sometimes a wide path was considered sufficient (W. Jacob (ed) American Reform Responsa #96). We would recommend a wall or a hedge (Greenwald Kol Bo al Avelut p 163). Tradition has few restrictions on cemetery plantings although they were generally avoided so that there would be no temptation to benefit from them and to provide maximum use of space for the actual graves (Shulhan Arukh Yoreh Deah 368.2; Tzavnat Panea I #74; Minhat Elazar IV #61 etc.). We should follow the existing practices regarding the burial of non-Jews in the Jewish section. These are undoubtedly specified by your congregation. Such graves may not be marked with any non-Jewish symbol nor may Christian clergy officiate. If for some reason they do officiate they should restrict themselves to psalms or prayers of the Rabbi’s Manual (W. Jacob (ed) American Reform Responsa #99). There is no reason to change this ruling as the cemetery is a Jewish cemetery and is to be so considered in every way. The fact that it forms a part of a larger entity is irrelevant. In fact in order to guard ourselves against any efforts in this direction, on the part of our laity, we should be especially strict in such matters. The question of timely burial will have to be considered in the light of local practice. In other words, a few Reform congregations are strict about burial on the same day or the next day, however, the vast majority will permit a delay so that more distant family members may arrive; that often means two or three days. Furthermore, union regulations frequently make it difficult to bury on Sunday or holidays and various congregations have had to adjust themselves to these conditions. You might also inquire about potential restrictions by the general cemetery of memorial services as for example, between Rosh Hashanah and Yom Kippur or on Yom Hashoah, although these days may not pose a problem. On balance it seems that the potential problems of the arrangement you propose may be overcome and you should be able to go ahead with those arrangements.March 1988

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ARR 353

CCAR RESPONSA

American Reform Responsa

105. Employment of non-Jews in a Jewish Cemetery

(Vol. XXVII, 1917, p. 89) For digging the grave or doing other mechanical work preparatory to the burial, non-Jews may be, and always have been, employed. Only such services as are performed directly for the dead during the burial are obligatory to his fellow-Jews.K. Kohler and Jacob Z. LauterbachNOTE:References are: Beitsa 61a; Yad, Hil. Yom Tov 1.23; Shulchan Aruch, Orach Chayim 626.1.Responsa Committee (1980)

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NARR 311-313

CCAR RESPONSA

New American Reform Responsa

196. Control of a Cemetery

QUESTION: Our cemetery is part of a general cemetery. We now need to obtain new burial space, however, the general cemetery is unwilling to sell us any additional land. They would, however, provide an adjacent section and permit the Jewish community to control who may be buried there as well as the burial procedures. The land, however, would remain part of the larger general corporation which would set the fees and own the property. (Rabbi Richard B. Safran, Fort Wayne IN)ANSWER: Burial grounds were owned by families or Jewish communities through most of the Jewish past. This tradition began with Abraham when he purchased a burial site for his wife, Sarah (Gen 23). Subsequently other cave tombs generally owned by families were used (M K 17a; B B 58a; etc), while communities established Jewish communal cemeteries. In some instances in which the number of Jews in a country was small a single cemetery sufficed for the entire nation. So, for example, medieval English Jewry possessed only a single cemetery in London. When efforts to enlarge the cemetery through purchase of additional ground failed or this was refused, Jewish communities were forced to add soil to the existing cemetery and bury anew atop of the old graves (Ariye Lev Shaagat Ariye #17; Abraham Danzig Hokhmat Adam Matzevot Mosheh #10; Tur and Shulhan Arukh Yoreh Deah 362.4; 363). Fortunately, that problem no longer arises. In the nineteenth century it became customary for various European cities to control the land used for burial by establishing a single large municipal cemetery with sections for each religious body. I am under the impression that the land itself remained in the hands of the municipality though they permanently allocated a section to the Jewish community and stipulated that all matters connected with burial were to follow the practices of that community. Certain general matters such as security, the maintenance of roads, paths and walls were in the hands of the general cemetery. The details varied from place to place but such a pattern was established and accepted (Shulhan Arukh Yoreh Deah 363 ff and commentaries; Ezekiel Landau Noda Biyehudah #89). The principal concern is the permanence of the graves sites as we do not wish to disturb the graves of those dear to us. If the land is permanently designated as a Jewish section and not a lease for a specific amount of time there is no problem. Nor would there be in your case. It is true that theoretically the owners could change their rules and at some time in the future use some of the land in a different manner. However, this might also occur with the cemetery entirely owned by the Jewish community. The construction of a public road forced the relocation of hundreds of graves in several instances (Greenwald Kol Bo al Avelut). In other words, even outright ownership of the cemetery does not guarantee the perpetual safety of the graves. We should note one other distinction between the arrangements which you have discussed and those of Europe. In the European case the municipality actually owned the cemetery, while in the United States it is likely to be a private corporation. That type of corporation despite regulations is more likely to suffer instability in the future than a municipality. As the Jewish cemetery in Fort Wayne has been part of the general cemetery for a long time, and as a good relationship with the general cemetery has existed through the years, there should be no problem about the new arrangements through which a Jewish area with the controls which you have stipulated is designated, but not purchased. It is important that this area be clearly delineated and that the agreement stipulate that this land be so designated permanently. Furthermore, all control over burial procedures, tombstones, memorial services, plantings, etc. must follow your congregational practices. It will be necessary to write a carefully worded document to guarantee that this will indeed be a Jewish cemetery although the land will not actually be owned by the Jewish community.March 1988

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ARR 348-349

CCAR RESPONSA

American Reform Responsa

101. Choice of a Cemetery

(Vol. XXVII, 1917, pp. 88-89)

There is no law requiring the burial of the dead in the nearest cemetery. As a matter of fact, the only consideration in the choice of a cemetery was either the probable preference by the dead of the place where relatives of his were buried or the better security of the body against bad conditions of environment such as inundation.

K. Kohler and Jacob Z. Lauterbach

NOTE:

Our society has become very mobile. The nuclear family has replaced the extended family, and we find more and more often that families are spread out over vast distances.

The family cemetery plot, which at one time served the burial needs for generations of families, can, in today’s society, often create unforeseen problems at the most difficult of times. In addition, our mobile society–beginning with the years when our youngsters attend colleges great distances from their home, and where they often meet future mates from still more distant regions–has added to the problems of dispersion. We also see families in their search for employment opportunities moving to different locations in the span of their working years. Therefore, it would be advisable for families to discuss in full their choice and preference for place of burial when the matter can be discussed rationally and without pressure.

Responsa Committee (1980)

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