Responsa

CORR 78-82

MARRYING THE STERILIZED

QUESTION:

A man undergoes vasectomy. His bride nevertheless agrees to marry him. May we officiate at such a marriage? Furthermore, what if the doctor declares it dangerous for the woman to bear children and she is sterilized? Should we officiate at such a marriage? (Asked by Dr. M. J. K., Vineland, N.J.)

ANSWER:

THE FIRST QUESTION asked is based upon the clear statement in Deuteronomy 23:3, that a man who is a eunuch may not enter the congregation of God, i.e., may not marry a Jew. In the definition of this physical state the law clearly adds that closing off of the duct which carries the seed constitutes rendering the man a eunuch (Even Hoezer 5:2). Thus the modern operation of vasectomy comes under the Biblical prohibition of Kruss Shofcho.

While the law seems clear enough, there are a number of exceptions which modify this law considerably. First of all, there is a limitation as to what is meant by a eunuch. The law is clear that a man is to be defined as a eunuch if his state is the result of an operation (Saris Adam); but if the impotence is not the result of an operation but is the result of a birth defect (Saris Chama, made a eunuch “by the sun,” i.e., by nature) then he is not forbidden to marry. In fact, Maimonides (Issurey Biah 16:2, 6, and 9) is still more permissive. He says that even if the man is made impotent by a doctor, due to the man’s sickness which makes this operation necessary, even then he is not to be considered a eunuch who is prohibited to marry.

There is some doubt as to this permissiveness with regard to the man who is sterilized because of sickness. The Tur in Even Hoezer 5 says that Rashi and his own father (Asher ben Yehiel) disagree with Maimonides as to the admissibility of a man who has been sterilized because of sickness. Be that as it may, in the case which is before us the woman is sterilized because of sickness and (for other reasons which will now be mentioned) there is no objection to her being married. In fact, according to the commandment to “increase and multiply,” there is no objection to her being married, since this is a commandment imposed upon the male, not upon the female. Therefore it is permitted for a woman to be sterilized (Tosefta Yevamos 8:4).

Another modification of the eunuch law should be mentioned. The rabbis emphasize the phrase in the Deuteronomy verse: “the congregation of the Lord.” They explain this phrase as meaning the community of those who are born of Jewish parents. While proselytes are of course accepted as full Jews, nevertheless they are considered as being organized into a separate “congregation of proselytes” (Kehal Gerim). There fore the law is clear that a sterilized man may marry a convert (m. Yevamos 8:2).

There is still another consideration. If the man now sterilized already was the father of a son and a daughter, then he is considered by the law to have fulfilled the commandment to “increase and multiply” and thereafter there is no objection to his marrying without the prospect of children. See especially Rashi to Yevamos 61b in which he says that in that case (since he already had a son and a daughter) it is not necessary to look for a wife who can bear him children (Eyn Tzorich, etc.).

Now the question is whether such a marriage between one or two sterilized people can be considered to be a valid Jewish marriage (Kiddushin) . Maimonides in Hil. Ishus 4:10 says that if a man who is sterilized marries, whether he be born sterilized and thus technically he is not considered a Saris, or whether he is sterilized through human action, this marriage is to be deemed valid. The Lechem Mishna (Abraham De Boton) raises an objection against the decision of Maimonides that such a marriage with a sterilized person is valid. As a matter of fact DeBoton would accept, surprisingly enough, the validity of such a marriage only in the case of a person sterilized by human means and not by nature. The reason for this distinction of DeBoton is found in Mishna Yevamos 8:4, that such a marriage is valid because the man at one time was normal; in other words, he had Sha’as Ha-Kosher, just as in the case that is before us where the sterilized person was at one time fruitful.

A very interesting and full discussion of this decision of the Rambam (that such a marriage is valid) is given by Yair Chayim Bachrach in his Responsa # 2 21, near the end of the responsum. His comment fits, almost precisely, the case in question here. He explains the Rambam must have considered this marriage valid on these grounds: First, she knows of the situation beforehand and consents and secondly, the operation made him unfruitful but has not made him sexually impotent. This is exactly the circumstance today with modern vasectomies.

But suppose she did not know of his condition before the marriage, would the marriage be valid? Bachrach in this responsum says “no;” but Jacob Reischer of Metz (Shevus Ya’akov 101) says that even if she did not know of it beforehand, this marriage is nevertheless valid and she cannot be freed from it without a Get.

Besides all these considerations, when the law discusses various blemishes in a husband for which a woman might be justified in asking for a divorce, they frequently mention the fact that there are many other reasons why a woman might want to remain married rather than being alone (Kesuvos 75a, Tov I’meysav ton du).

To sum up, while of course the purpose of marriage is children and such marriages as here described should not be encouraged, nevertheless one cannot say that such marriages are invalid and that we should refuse to officiate. We should bear in mind the fact that Moses Isserles was well aware of changes in the social mood from one era to another. In Even Hoezer 1:3 he says that nowadays we no longer stand in the way of mar-riages which will not result in children.

CORR 57-59

UNITED JEWISH APPEAL AT KOL NIDRE

QUESTION:

In a number of smaller communities the custom has grown up to hold a meeting for the United Jewish Appeal during the Kol Nidre service, when there is usually the largest attendance. Should the request for such a meeting be granted by the congregation, or should it be resisted? (Asked by Rabbi Fred V. Davidow, New York.)

ANSWER:

ALL THE LAWS of the Sabbath as to the prohibition of labor, business, etc., apply also to the Day of Atonement which is called Shabbas Shabbason. Therefore the question is whether a meeting, whose purpose is to raise money, may be held on the Sabbath (and, therefore, also on the Day of Atonement). The answer depends on what sort of business it is. A man may not plan certain procedures in his own business on the Sabbath, even if he does not handle any money, but is merely working out in his mind certain business procedures.

The Talmud (B. Shabbas 150a) cites the verse in Isaiah (58:13): “If thou turn away thy foot because of the Sabbath from pursuing thy business on My holy day, nor speaking thereof.” The Talmud emphasizes the words, “thy business,” and says that it is only “thy” personal business that may not be planned on the Sabbath. But communal business may be planned. One Rabbi says: “Plans for a Mitzvah may be calculated on the Sabbath.” Another says: “We may determine upon charity for the poor on the Sabbath.” All this is codified by Maimonides ( Hilchos Shabbas 24:5). He says: “We may calculate calculations for Mitzvos, we may set charity for the poor, and go to the synagogue to attend to public affairs on the Sabbath.” Thus there developed over the centuries the auctioning off of the various honor-duties (Mitzvos) on the Sabbath, and this practice is defended by the latest authority, Yechiel Epstein (Aruch Ha-Shulchan, Orah Hayyim 306:16). So there is no question that meetings for congregational business and in behalf of charity may be held on the Sabbath. See the full list of references in Reform Responsa (i.e., Volume I) page 46 ff.

What applies to the Sabbath applies, therefore, also to the Day of Atonement. In fact one might say that a meeting in behalf of charity fits especially well with the mood of the Day of Atonement, since on the High Holy Days, in the greatly revered prayer U’Nasana Tokef, the chief protection of man against the misfortunes that might befall him are given as Repentance, Prayer and Charity (Teshuva, Tefilla, Tzedaka) .

Thus there can be no traditional objections to a meeting for charity at the Kol Nidre service. Nevertheless, there are a number of dangers involved, or at least difficulties to overcome. First, while supporting charity is an acceptable aim, the method of getting pledges at such meetings, the competition, the urging, the shaming of people can certainly be flagrantly violative of the mood of the Day of Atonement. Therefore such a meeting can be permitted only if it is conducted without any bullying or hectoring, but proceeds with the calm dignity appropriate to the Day of Atonement. Another important consideration is the undue lengthening of the service. Frequently in the codes, when certain additions or interpolations are spoken of at the public service, there is concern expressed that the congregation may be unduly burdened (Mipne Tirchas Ha-Tzibbur). It must be seen to that if such a meeting is conducted, it should be fairly brief. Perhaps most importantly, it should not be permitted to interrupt the proper sequence of the service. If the meeting is to be held, it should be held before the service actually begins, i.e., before Kol Nidre.

Because of all these dangers, namely, spoiling the mood of the service, burdening the congregation by undue length of the service, and breaking up the sequence of the service, the suggestion to hold such a meeting should be received with caution.

Of course if there is already an established custom to have such a meeting at the Kol Nidre service, then the fact that it has become a custom is in itself of some standing in the law. But whether, by now, it is a prevalent custom or not, the dangers mentioned above should be carefully avoided. If they are avoided, then it can be safely said that there is no objection in Jewish law that such a meeting for this charity be held at the Kol Nidre services.

CORR 69-74

VISITING ISRAEL

QUESTION:

A couple saved for years to visit Israel for a month. But now they plan to use the money for the college expenses of their children. Have they the right to do so? Is it not a supreme, religious duty to go to Palestine? (Asked by Rabbi Allen S. Mailer, Culver City, California.)

ANSWER:

A PERSON nowadays may want to go to the land of Israel and consider his visit to be a moral obligation. In that case it is a matter for him to decide as to how important this is to him in comparison with other uses for his money. But the question here is a deeper one than a sense of group commitment or pride. It is a question of religious duty. Is it a religious duty to go to Palestine and does one violate any religious duty if one fails to do so?

This question of whether it is a religious obligation to settle in the Holy Land has been discussed since the Middle Ages and, interestingly enough, has become again from the Halachic point of view the subject of a rather heated discussion in our day. The Chassidim, especially the Satmar group, who consider themselves the most completely and uncompromisingly religious of all Jews, are also bitterly opposed to the modern state of Israel. It is therefore necessary for them (and for those who are like-minded) to come to terms with this religious question. Because of this deep concern on the part of these anti-modern-Israel Orthodox Jews a considerable literature has grown up on this subject. The most important is the collection by Moses Bloch in three volumes of a work called Dovev Sifse Yeshenim, in which he gathers all the opinions of the Orthodox rabbinate of the last hundred years against a modern Jewish state and the plans to establish it. The very first letter in the first volume is typical and representative. It is by the famous scholar Jacob of Lissa, addressed to the pioneer protagonist of religious Zionism, Rabbi Zvi Hirsch Kalischer. Virtually all the Orthodox arguments on the anti-Zionist side of the question are marshalled here (as they are in the subsequent letters).

It is important in our attempt to solve this question of religious obligation to go through the law systematically. The basis of the law is the very last Mishnah in the tractate Ketuboth in which we are told that a husband can compel his wife to emigrate with him to the Holy Land. If she refuses he can divorce her without even giving her the money stipulated in her Kesubah. To which Rashi (in the Talmud, Ketuboth 110b) says this means a man may compel not only his wife, but his entire family to settle in the Holy Land.

However the Tosfos to this passage says that this law is not applicable today because it is dangerous to travel there (this was the eleventh century). The Tosfos further quotes Rabbi Chayim who gives a second reason why it is no longer a religious duty to settle there: namely, that there are so many important commandments which are applicable in the Holy Land and which a man may not be able to fulfill nowadays.

This negative point of view is contravened by many other authorities. Nachmanides counts settlement in the Holy Land as one of the Mitzvoh. Isserlein (14th century) in his Pesakim # 8 8, acknowledges the great dangers of settlement, but says a man should judge whether he can endure and fulfill the commandments; and if he can, he should settle there. The Mordecai (Mordecai ben Hillel) 14th century, quotes the Tosfos as to the danger of travel and settlement and says that the law therefore is that a husband cannot compel a wife to go with him there. Caro (Shulchan Aruch, Even Hoezer 75, 4 & 5) first states the law definitely that a husband can compel a wife to settle in the Holy Land with him, but adds, then, “Some say it is dangerous and a man has no right to bring himself or others into danger; therefore (if the journey is short) from Alexandria eastward, he may compel his wife to go with him; but if they live west of Alexandria, he may not.” Hayim Benvenisti (Turkey, 17th century) in his Keneses Hagdola to Bes Joseph, Even Hoezer 75, marshals all the arguments on either side and tends to agree with the above compromise opinion taken by Caro in the Shulchan Aruch.

There is an interesting discussion of the question from Prague at the end of the seventeenth and the beginning of the eighteenth century. It is a responsum by Jonah Landsofer in his Mil S’daka, #26. The cir cumstances are interesting enough to deserve mention. A group of three men decided to settle in the Holy Land and take with them their young children of the ages of three and four. Many people raised the objection that they have no right to endanger the lives of little children on this perilous journey. Landsofer answers that the commandment to settle in the Holy Land is an eternal commandment. As for the danger, that may vary from time to time and place to place and must, of course, be considered when we discuss the question as to whether a man can compel his wife to go with him. But aside from the question of the rights of his wife, if there is not too much danger, it will be just as safe for the children as for the adults. A fair statement of the law is to be found in the balanced opinion arrived at in the Be’er Hetev, (Judah of Tiktin) to the passage. He says, “Since the question of whether or not it is a religious duty is a subject of disagreement among the great teachers, it is clear, then, that a husband cannot compel his wife to move with him to the Holy Land. Cf. also, Igros Moshe, Even Hoezer # 102 (end) where he says that it is a Mitzvah only for Palestinians to dwell in Israel, but there is no mandatory Mitzvah for others to live there.

Clearly the question of the religious duty to settle in the Holy Land can be considered a moot question in which, therefore, compulsion of husband against wife cannot be applied. For completeness’ sake it should be mentioned that there is a great deal of Halachic debate on the reverse of our question, namely, whether a person already settled in the Holy Land may emigrate in order to live in the diaspora. For a full discussion of this question see A Treasury of Responsa, page 167 ff., where there is an account of the responsum on this subject by Yom Tov Zahalon (1557- 1638), Rabbi of Safed.

Returning to the case discussed here, it is not even a question of settling in the Holy Land but a question merely of going there for a brief visit. In that regard there is not, as far as I know, any authoritative opinion at all to the effect that a brief visit is to be considered as a religious duty.

Now as to the children, if it were a question of the study of the Torah, let us say it was a choice between the parents’ going to Israel and the children studying in the Yeshiva, that question could possibly enter into the discussion. Isserlein cites the fact that in his day there was very little Talmudic study in Israel and that fact was used as an argument against settling there. But the secular education has no standing in the Jewish law (although under special circumstances it is permitted) and therefore college education, unlike Talmudic education, could not be weighed against settlement. Nowadays, of course, with the many Yeshivos there, there is a large Orthodox settlement from the Yeshivos in America, according to the recent Mizrachi official magazine. But these Yeshiva heads and Yeshiva students are confident that they can fulfill their religious duties all the better in Israel and hence follow the caution of Israel Isserlein.

But in the case mentioned, it is first of all not a question of settlement, but of a visit which is no par ticular Mitzvah; and secondly a question of secular education, which is of no concern in Jewish religious law. In this case, therefore, the parents can do as they wish.

CORR 23-26

HOMOSEXUAL CONGREGATIONS

QUESTION:

A rabbi on the West Coast, the Regional Director of the Union of American Hebrew Congregations for Southern California, organized a congregation of homosexuals. He said, “These are people facing their own situation. They have become a social grouping.” Is it in accordance with the spirit of Jewish tradition to encourage the establishment of a congregation of homosexuals? (Asked by Rabbi Alexander M. Schindler, President of UAHC.)

ANSWER:

THERE IS NO QUESTION that Scripture considers homosexuality to be a grave sin. The rabbi who organized this congregation said, in justifying himself, that being Reform, we are not bound by the Halacha of the Bible. It may well be that we do not consider ourselves bound by all the ritual and ceremonial laws of Scripture, but we certainly revere the ethical attitudes and judgments of the Bible. In Scripture (Leviticus 18:22) homosexuality is considered to be “an abomination?’ So, too, in Leviticus 20:13. If Scripture calls it an abomination, it means that it is more than a violation of a mere legal enactment; it reveals a deep-rooted ethical aversion. How deep-rooted this aversion is can be seen from the fact that although Judaism developed in the Near East, which is notorious for the prevalence of homosexuality, Jews kept away from such acts, as is seen from the Talmud (Kiddushin 82a) which states that Jews are not “under the suspicion of homosexuality.” In other words, the opposition to homosexuality was more than a Biblical law; it was a deep-rooted way of life of the Jewish people, a way of life maintained in a world where homosexuality was a widespread practice. Therefore homosexual acts cannot “be brushed aside, as the rabbi on the West Coast is reported to have done, by saying that we do not follow Biblical enactments. Homosexuality runs counter to the sancta of Jewish life. There is no sidestepping the fact that from the point of view of Judaism, men who practice homosexuality are to be deemed sinners.

But what conclusion is to be drawn from the fact that homosexual acts are sinful acts? Does it mean, therefore, that we should exclude homosexuals from the congregation and thus compel them to form their own religious fellowship in congregations of their own? No! The very contrary is true. It is forbidden to segregate them into a separate congregation, The Mishna (Megilla IV, 9) says that if a man in his prayer says, “Let good people bless Thee, O Lord,” the man who prays thus must be silenced. Bertinoro explains why we silence the man who says, “Let the good praise Thee.” He says it is a sin to say so because the man implies that only righteous people shall be in the congregation. The contrary is true. He adds that the chemical “chelbena” (Galbanum) has an evil odor; yet it is included in the recipe of the sacred incense offered in the Temple in Jerusalem. Bertinoro bases this idea specifically on the statement in the Talmud (Kerisus 6b) where the Talmud uses the example of the presence of ill-smelling Galbanum in the sacred incense as proof for the following statement: “No fast-day service is a genuine service unless sinners of Israel are included among the worshipers.” That is to say that if we were self-righteous and considered the community to be entirely composed of noble people, we would then be far too smug and self-satisfied for a truly penitential fast-day service. That is why Maharil, in the 14th century, followed the custom of saying before the Kol Nidre that we must pray side by side with the sinners. This has become our Ashkenazic custom before the Kol Nidre prayer and, in fact, it has become a universal Jewish custom since Joseph Karo, the Sephardi, mentions it as a law in the Shulchan Aruch, Orah Hayyim 619:1 (and compare the Be’er Hetev to the passage). In other words, not only do we not exclude sinners, we are actually forbidden to do so; they are a necessary part of the congregation. That is the significance of the law in the Mishna that we silence the reader if he says, “Let only the righteous praise Thee.”

This throws light on the present situation. We do not exclude them. We are forbidden by our tradition to do so. They are excluding themselves; and it is our duty to ask, why are they doing it? Why do they want to commit the further sin of “separating themselves from the congregation”?

Part of their wish is, of course, due to the “Gay Liberation” movement. Homosexuals, male and fe male, faced with laws which they deem unjust, are fighting in behalf of their rights and, therefore, are in the mood to extract formal recognition from all possible groups. If they can get the Union of American Hebrew Congregations to acknowledge their right to form separate congregations, it will bolster their propaganda for other rights. In fact, the press recently carried a demand on the part of women homosexuals for a separate congregation of their own. (I believe these were Christian women.)

It seems to me, also, that it is not unfair to ascribe an additional motive for their desire to be grouped together, to the exclusion of others: In this way they know each other and are available to each other, just as they now group together in separate bars and saloons in the great cities. What, then, of young boys who perhaps have only a partial homosexual tendency, who will now be available to inveterate homosexuals? Are we not thereby committing the sin of “aiding and abetting sinners” (M’sayye Yedey Ovrey Averah)? (b. Aboda Zara 55b)

To sum up: Homosexuality is deemed in Jewish tradition to be a sin, not only in law but in the Jewish way of life. Nevertheless it would be a direct contravention of Jewish law to keep sinners out of the congregation. To isolate them into a separate congregation and thus increase their mutual availability is certainly wrong. It is hardly worth mentioning that to officiate at a so-called “marriage” of two homosexuals and to describe their mode of life as Kiddushin (i.e., sacred in Judaism) is a contravention of all that is respected in Jewish life.

CORR 172-176

POSITION OF THE BODY IN THE GRAVE

QUESTION:

Is there definite Jewish law or established prevalent custom for the posture of the body in the grave and the position, the direction, in which it must be laid? (Asked by Louis J. Freehof, San Francisco, California)

ANSWER:

WITH REGARD to the posture of the body, Jewish custom is so consistent that it amounts to definite law. The Talmud in Baba Bathra 73b (at the bottom) mentions that the generation of the Exodus that had died in the wilderness were all buried lying on their back. In the Palestinian Talmud in j. Nazir 9:3 (in the regular one-volume Krotochin edition, p. 57d, the middle) the question is asked, “What is the normal way for the body to lie?” The answer is given as follows: the feet straight and the hands on the heart. This is taken to mean that the body lies on its back, straightened out. It is necessary to note this because many ancient people were buried in a crouched, womb-like posture. So this custom of laying the body on its back, straightened out, is so universally observed that it is recorded as law in the Shulchan Aruch, Yore Deah 362:2.

While the posture of the body is agreed upon and may be considered law, namely, that it lies on its back, straightened out, the direction in which the body is laid is not universally agreed upon, i.e., the customs differ whether the body should be laid feet to the east and head to the west, or the reverse; or whether it should be laid head to the north and feet to the south, or the reverse. In fact the custom of directions in burial varies even further than the question of the cardinal points of the compass. Abraham Isaac Glick, Rabbi of Toltchva, in his responsa Volume 3, speaks of people being buried in some communities with their feet pointing to the gate (in order to be ready to march at the resurrection of the dead at the coming of the Messiah). Whether it is a law or a local custom is an important distinction which must be made in special cases. For example, Abraham Isaac Glick (Volume 3, # 8 3) had the following case: A woman had been buried with her head to the south and her feet to the north, which was the reverse of the direction that bodies were buried in that cemetery. The question now was: Should she be disinterred in order to rebury her in conformity with the direction of the other bodies? If it were a fixed law to bury in a certain direction, he might possibly have permitted the disinterment (although with some hesitation) but he absolutely forbade it. He gives his reason clearly, that there is no source at all in the legal literature for preferring burial in one direction rather than in another, and he says that is why the Shulchan Aruch (in Yore Deah, ibid.) when it speaks of the posture of the body does not at all mention the direction in which it should lie.

In the responsum of Yekuthiel Enzil, Rabbi of Przemzl and of Strij (responsa Mahari Enzil, # 3 6 and #37) the practical question involving direction of the body was a different one and also important. A house had been built and bought by a Jew. After the house was built and bought, bodies were found buried in the grounds. If they were Jewish bodies a Cohen would not be permitted to enter the house. The questioner wanted to decide the question as to whether they were Jewish bodies or not by the direction in which the bodies were laid. He answers that there is no basis in the law for a preference of direction.

There is also, of course, the famous responsum of Moses Sofer (Chatam Sofer, Yore Deah 332). This is quoted fully in the Pith-che Teshuvot to the passage in the Shulchan Aruch. Moses Sofer’s responsum, as do the two responsa just mentioned, also involves a practical problem. Here the problem was the following: A community needed more grave space. It had a piece of land adjoining the old filled-up cemetery. But the shape of this unused land would necessitate changing the directions of the rows from the directions followed in the older part of the cemetery. For example, instead of the rows running from north to south, they would in this new part of the cemetery run from east to west. Is this change of direction to be permitted? In his answer, Moses Sofer proves from the discussion of the burial cave in Baba Bathra 101 a & b that the direction in which the body is placed in the grave makes no difference.

The matter is summed up by Yehiel Epstein in his authoritative code Aruch Ha-Schulchan, Yore Deah 362, in which he says that there is no basis for any preference of one direction over another. It all depends upon the local custom. Nevertheless it is important to follow the custom, whatever it happens to be in the locality. In other words, all the bodies must be buried in the direction consistent with the burying of all the other bodies in that city.

The reason for being careful to bury in the direction consistent with the local custom was that sometimes they purposely buried heretics and suicides in a direction different from the other graves. Because of this custom it might happen, at some later date, that when a body is found to have been buried in a direction different from that of the others, people might imagine that this body was purposely so buried because it was the body of an evil person. Such an opinion might be a grave injustice to the memory of the departed. Therefore in the responsum from Yad Yitzchok mentioned above, in the case of the woman who by accident or carelessness was buried in a direction different from the rest of the bodies, he forbids (as was said above) disinterment of the body, inasmuch as the direction in which it lies is not a matter of strict legal requirement. However, in order that her memory might not be slandered in the future, he suggests that the tombstone be placed not at her head, as is usually the custom, but at her feet, so that it should appear consistent with all the other graves.

The whole question is fully discussed by Greenwald in his Kol Bo, p. 177 ff. To all the references mentioned above, he adds another important fact, namely, that many famous scholars had specifically asked that their bodies be buried in a direction different from that of the other graves. This in itself is proof that the choice of any special direction is not required by law.

To sum up: The law is quite definite that all bodies be laid on their back but that the custom varies from community to community as to the direction in which the body must be laid. The general feeling of the scholars is that whatever the local custom happens to be, it should be followed consistently. But even this consistency is not a legal requirement since, as cited by Greenwald, many great scholars specifically asked to be buried in a direction different from the rest of the bodies in the cemetery. At all events, if the body is laid on its back, then all the requirements of the law as to posture and placement have been completely fulfilled.

CORR 284-286

PLANTINGS OR FLOWERS ON THE GRAVE

QUESTION:

What is the Orthodox objection to the use of plantings or flowers on the grave? (Asked by J. S.)

ANSWER:

THE MISHNA, in Berachos 8:6, speaks of the incense which was used around the body of the dead, but there is no mention of flowers or plants on the grave. As a matter of fact, none of the codes has any mention of prohibiting plants or flowers on the grave. There are, of course, discussions about trees in the cemetery, as to whether if cut down their wood may be sold; or whether if they over-arch the graves a Cohen may walk under them. But there is no mention at all in the codes of people planting flowers or shrubs or bringing flowers to the grave. Even the Responsa Literature has nothing about it until about a century ago; and from the sparse discussion of the question in the Responsa, it is evident that the whole objection arose as a reaction to modernism.

As far as I know, the first full recorded responsum on the question was by Eliezer Spiro (“Der Muncaczer”) in his Minchas Eliezer, Vol. IV, Responsum 61. Here he cites, also, the manuscript responsa of a predecessor in Muncacz. From his description it is perfectly clear that putting flowers on the graves was a custom picked up from the environment by certain modern-minded Jews, and it is primarily on this ground that Spiro objects to it. He says that the rabbis issued a decree against this new habit of putting flowers; he cites such a decree in Budapest and he even heard there was such a decree in Vienna before the community came into the hands of Jellinek and Guedemann (who were modern Orthodox). It is natural, therefore, that the objection should first be voiced in Hungary, where modernism and Orthodoxy were organized into national parties, as it were, and opposed each other as such.

Eliezer Spiro now proceeds to search out arguments against the custom. First, he says it is an imitation of Gentile practice and, therefore, forbidden. Also, since rich people can afford to put flowers or plantings on the graves, it violates the rule ( Yore Deah 352:1, based on Moed Katan 27b) that there must be no distinction (in the shrouds) between rich and poor, and this would apply also in this case to the flowers. The rich graves would be decorated; the poor graves would be bare. Another objection would be that the flowers would rapidly fade, and this is a violation of the prohibition against destroying things needlessly (Bal tashchis) . And finally, the fragrance of the flowers brings pleasure or gratification to the onlookers and it is forbidden to have any benefit (Hana’ah) from the body or the grave of the dead.

We may say, however, that since this objection to flowers was instituted by an authoritative rabbi, and since this objection has become widespread now for over a century, it must now be considered an authentic Minhag, which has the power of law in Orthodox life.

It is noteworthy that Greenwald, in his fine compendium, Kol Bo, p. 168, merely says quite mildly, “Yesh limnoah lintos.. ” (“It is advisable to refrain from planting … “) Furthermore, when the Chaplaincy Committee (composed of Orthodox, Conservative and Reform Rabbis) was asked whether it is proper to decorate with flowers the graves of military dead on Decoration Day, they answered in the affirmative, on the ground that the true objection is to permanent planting, and as for the flowers, they are not primarily for the Hana’ah of the living, but for the honor of the dead (Kevod ha-mass). See Responsa in Wartime, page 50.

CORR 281-283

GRANDSON AND GRANDFATHER

QUESTION:

The Talmud mentions the duties of a father to a son (first chapter of Kiddushin) and the duties of a son towards a father. The clearest enumeration of these duties are in the Tosefta to the first chapter of Kiddushin. The question asked is the following: Do these duties, or similar duties, apply also from the son to the grandfather and from the grandfather to the son? (Asked by D. B., Pittsburgh, Pennsylvania.)

ANSWER:

IT IS NOT definitely fixed in the law that the respective duties of father to son and son to father apply also between grandson and grandfather. This indeterminacy is noticeable in the careful phrasing of Isserles in his notes to the Shulchan Aruch, Yore Deah 240:24. He says: “Some say that the duties do not apply from grandson to grandfather but I do not agree with this opinion, except insofar as it is a man’s duty to honor his father more than his grandfather.”

The “some say” refers to a great scholar who lived in Italy a century before Isserles, namely, Joseph Colon (the Maharik) in his responsa, Root 30:2. The Maharik says that there is no such duty as honor due from the grandson to the grandfather; in fact, since a grandson may testify in court in a case involving his grandfather (which he may not do in a case involving his father), that proves that they are substantially not really kin, at least insofar as the duty to do honor is involved. As for the fact (he continues) that the grandson may say Kaddish for his grandfather, that proves very little since a man may say Kaddish for anyone who is dead. But Isserles in his own responsa (# 118) says that the grandson says Kaddish for his grandfather but, of course, the honor due to his father comes first; and in the responsum Isserles uses the same argument that you used to me when we spoke on this matter, that since the son takes his father’s place, he also therefore must honor his father’s father.

All of this indicates that just as a son has duties towards his father, so we may say a grandson has duties to his grandfather. But the real question is: Is this dutifulness reciprocal? In other words, does the grandfather have duties to the grandson as the father has to his son? The general tendency of the law is to answer this question in the affirmative. Joel Sirkes (the Bach) to the Tur (same reference) takes the point of view of Isserles, that the duties are reciprocal. His argument is as follows: In Jacob’s dream, God Himself says, “I am the God of your father Abraham” (but Abraham was Jacob’s grandfather), and Jacob himself, in his last days in Egypt, speaks of God “of my fathers Abraham and Isaac” (Genesis 28:13 and 48:15). So God Himself and Jacob, too, refer to a grandfather (Abraham) as “father.” Then Sirkes says that since the Talmud says that a grandfather must teach his grandson Torah (if the father dies or neglects his duty) it is inconceivable that the duty should not be reciprocal, and that the son is in duty bound to honor the grandfather. What the Bach refers to is the discussion in Kiddushin 30a on the verse in Deuteronomy 4:9: “Thou shalt teach them to thy sons and thy grandsons.” There the Talmud discusses the grandfather teaching the grandson (in the case of a certain scholar named Zebulon, son of Dan). A further reference with the same tendency is in Shevus Yaacov (Jacob Reischer of Metz, 18th century) II, #94.

We may sum up as follows: that as to the relationship between grandson and grandfather, the law is not as sharply defined as in the case of the mutual duties between father and son. But the tendency of the law is that these mutual duties do indeed carry over the two-generation gap.

CORR 260-262

GARNISHEEING WAGES

QUESTION:

If the court orders the wages due to an employee to be garnisheed, and the employer is Jewish, has the employer the moral and religious duty to resist the court order, since the Bible prohibits withholding the wages of an employee? (Asked by Rabbi Joshua O. Haberman, Washington, D.C.)

ANSWER:

THE BIBLE is specific in prohibiting the withholding of wages due to an employee (see Leviticus 19:13 and Deuteronomy 24:16). If, for example, the employee is a day-by-day laborer, he must be paid on the very day that his work is finished. This law is developed in full detail in the Talmud in Baba Metzia from 110b to 1 12b; and based upon the Talmud, the law is discussed fully by Maimonides in his Yad, in the laws of “hiring” (S’chiros) , Chapter 11. Then it is dealt with in the Tur, Choshen Mishpot #339 and the same reference in the Shulchan Aruch.

There are certain circumstances under which even the strict Jewish law does not deem it a sin to withhold wages. According to some opinions it is no sin to do so in the case of agricultural labor (evidently because the farmer himself gets his money only after the harvest. See the Tur.) Also, if the workingman knows beforehand that his employer has no money except on market-days, then in that case, the employer is not liable for his delay till the market-day. Finally, the employer is never liable if the employee does not demand his wages. This is clearly stated in Baba Metzia 112a and in the Tur and in the Shulchan Aruch 339:10.

So it may well happen that the employee, whose wages are garnisheed by the law, may well appreciate the fact that his employer cannot violate the court order; and knowing that fact, he does not make the futile gesture of demanding his wages. Thus if he does not demand it (for whatever reason) the employer has committed no sin under Jewish law if he withholds the wages.

As to the moral principle involved, that may depend upon what sort of debt it is, for the payment of which the wages are now being garnisheed. In the Commonwealth of Pennsylvania, for example, we have no garnisheeing of wages, except for the support of children and a wife (also for income tax). If it is to support children and wife, how could it be considered unethical for the employer to help in their support in this regard?

There is another ethical consideration involved. The sin denounced in Scripture actually involves two sins: a) the workman is deprived of what he has justly earned and b) the employer dishonestly keeps (permanently or for a time) money belonging to the worker. But in the case of the garnisheeing of the wages to pay a debt (to a third party) while it is true that the workman is deprived of his just due, the employer at least does not have the use of the money withheld. It goes to satisfy the debt designated in the writ.

But actually the whole question is theoretical. The garnisheeing of the wages comes to the employer as a court order which he cannot fail to obey without legal penalty. The fact that he is compelled to obey the court order has special relevance in Jewish law. In all matters of civil law (such as these) the principle of Dina D’malchusa Dina applies, “The law of the land is the law.” In such cases it is the duty (the Jewish duty) of the employer to obey the law. This principle of Dina D’malchusa Dina does not apply in ritual or spiritual matters. A decree to violate Jewish law in such matters should be resisted even to martyrdom. But the decrees of a secular court in civil matters are laws which (by Jewish law) we are bound to obey. Therefore the employer has no moral or religious right to pay the man his wages.

CORR 200-204

FUNERAL SERVICE FOR EX-MEMBERS

QUESTION:

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)

ANSWER:

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.

CORR 193-196

CONGREGATIONAL CHARGE FOR FUNERALS

QUESTION:

A Jewish man passed away in a city about a hundred miles from the nearest congregation which has a rabbi. He was not a member of that congregation. He is to be buried in this larger city but the congregation there refuses to allow its rabbi to officiate until the family pays a $100 fee in advance for the services of a rabbi. Is this proper procedure? (Asked by Rabbi Abraham I. Shinedling, Albuquerque, New Mexico.)

ANSWER:

THERE ARE A NUMBER of other questions involved which are not mentioned. For example: Does the deceased already own a lot in the cemetery of the congregation that is now charging the $100 fee? Also, is the family of the deceased able to pay the fee or does it put a great hardship on them? The latter fact would make a difference in evaluating the propriety of the practice of the congregation. To bury the dead is a Mitzvah. It is incumbent first of all upon the family of the deceased, and if there is no family it is incum bent upon the community to provide for his burial. See Greenwald, Kol Bo, p. 173, note 1. If, for example, it is extremely difficult for the family to raise that $100 and they certainly cannot pay for a lot in the cemetery, then it is absolutely wrong for the congregation to insist upon any fee at all. The body of this deceased is, as it were, a Mays Mitzvah, a body whom we are mandated to bury, just as much as even a priest may be defiled for a Mays Mitzvah if he comes across a body and there is no one but him to bury it.

But we will assume in this case that this is not a case of extreme poverty. Let us then first consider the purchase of a lot. It is the universal custom in Judaism for many centuries that the Chevra Kadisha (and in a modern congregation the Cemetery Committee) charges for lots. The old Chevra Kadisha charged more to a man who could pay more. But even the poorest of the poor should pay something for a lot because it is considered a virtue for a man to be buried B’soch Shelo, in his own property (cf. References, Kol Bo, p. 174, note 7) . So in case this man has no lot, it is right and proper that, if his family can afford it, they should pay for a lot.

Now as to the expenses of the burial: While burial is a Mitzvah incumbent on everybody, the Mitzvah falls first on his sons and heirs. As a matter of fact, even if the father has left no inheritance to his sons, there is a strong line in the law which insists that sons nevertheless have the responsibility to provide for his burial (Minz, Responsa Maharam, # 5 3 and Bachrach, Chavos Yair, # 13 9) . As a matter of fact, even if the man himself before he died said that he does not want any money from his estate to be used to pay the expenses of his burial, we pay no attention to such a request and exact the money from his estate to pay for the burial (Ketubos 48a and Yore Deah 348:2). It is clear so far, then, that if a man can afford it, he must be compelled to pay, or his heirs to pay, for his funeral.

The final question is: Is it right for the congregation to insure that the rabbi receive his fee from the funeral? This question involves the old and classic question, first fully discussed by Shimon ben Zemach Duran, as to the legitimacy of a rabbi receiving fees for his services (see the discussion in A Treasury of Responsa, p. 78 ff.). This question has changed with the changing times. If there were in the past any doubt as to the right of a rabbi to receive such fees, this doubt has vanished with the development of the rabbinate from the voluntary service of a scholar to the community to a regular profession. Now that the rabbinate is a regular profession, its status is clearly defined by the great Hungarian authority, Moses Sofer, in his responsa, Yore Deah 230. There he says that the questions which arose in the past as to fees no longer apply today. Today the rabbi is employed by the congregation and he is entitled to the fees as part of his livelihood.

Of course whether the congregation puts part of this fee in its own treasury and gives the rabbi the rest, whether also the fee is excessive or not excessive is not directly germane to the question. The basic fact is that a family is in duty bound by Jewish law to pay from the man’s estate for his funeral, both the land and the costs of the burial. Of course if there is no money at all available, then it becomes the duty of the congregation. Otherwise the action as outlined above is in perfect consonance with Jewish practice and involves no impropriety at all.