Responsa

NRR 75-78

AN INCOMPLETE CONVERSION

QUESTION:

A Gentile girl married a Jewish man. Immediately after the marriage, she began the process of conversion before a Reform rabbi. She took the course of instruction in a proselyte class conducted by the rabbi. However, she did not participate in the final ceremony of conversion because she became pregnant. After two children were born to her, she returned to participate in the final ceremony of conversion, and she and her family have been living a Jewish life. But since her children were born before the final ceremony of conversion, she is now greatly concerned whether her children are Jewish or not. What is the status of her children? (Asked by L.S.F.)

ANSWER:

IF THE PROCESS of conversion had been carried out

according to Orthodox law, it would seem evident that the children are not Jewish by birth since their mother was not

completely converted when she gave birth to them. How-ever, in Orthodox law, there is a strong tendency to protect the Jewish status of children. Thus, if a man comes and says that he had been converted in some other city, he is not believed until he brings proof. His conversion is in

doubt, but he is not permitted to cast doubt on the Jewishness of his children (Yore Deah 268:11). Also, while the ceremonies of circumcision for a man and the mikvah for a woman and a man are, of course, essential in the Orthodox procedure, nevertheless, there is considerable indication that these final ceremonies are not the most important. There are two elements in the conversion process which are the most heavily stressed, one, the understanding and the acceptance of the commandments, and two, retrospectively, the life which has been led by the proselyte after the conversion or the claimed conversion.

The special stress placed on learning and accepting the commandments can be seen from the fact that the ceremo-nial bathing may be considered valid if it is not done in the presence of three, but the study and the acceptance of the commandments must be in the presence of three (prefera-bly learned) men. Special stress is put not only upon the commandments, but also upon the Jewishness of the life led by the convert or by one who claims he is a convert. If a Gentile claims to have been converted in some other city, he must bring proof of the fact, but if he is seen to be living a Jewish life, observing the commandments, he is to be considered a true proselyte {Yore Deah 268:10). So, too, in the case of a minor who is converted—he may repudiate the conversion when he grows up, but if he has been living a Jewish life, that fact is decisive and his conversion is permanent. As for the importance of the conversion mikvah, even that is diminished by the following: If a man or a woman takes a ritual bath for some other purpose than conversion, this bath may be accepted as valid for conver-sion, although that was not the original intention (Yore Deah 268:3).

Yet, although the greater emphasis in the entire conversion process is on the spiritual and ethical elements, it would, of course, be incorrect to say that the purely ceremonial procedures, being secondary, may be set aside. Even though Rabbi Eliezer doubts the necessity of the ritual bath and says that a man is a full proselyte if he does not take the ritual bath but is circumcised, and even though Rabbi Joshua deprecates the necessity of circumcision and says that a man is a full proselyte if he is bathed but not circumcised (Yevamos 46a), actually both ceremonies are required. Therefore in the case of this woman, even though she took the instruction and even though she kept a Jewish home, she would not be considered a proselyte, and her two children, therefore, would not be Jewish.

It must be added that although the child was conceived while she was still a Gentile, yet if she had continued in the conversion process and the child had been born after her conversion was complete, then the child would be Jewish. This would be true even if the father was a Gentile, for the child that she was carrying would be deemed to have been converted with her (seen Modern Reform Responsa, pp. 143 ff., and Yore Deah 268:6).

But all the above is theoretical in the case which we are discussing, since the conversion process was under the guidance of a Reform rabbi. Reform Judaism has made a drastic change in the conversion process. One might say that the stress placed on the intellectual and spiritual elements in the Orthodox conversion Halachah became decisive in the development of the Reform ritual. The two purely ceremonial rituals, circumcision and mikvah, are disregarded. They are no longer required. But the intellectual and ethical elements are strengthened. The Reform process of conversion involves a much longer and more complete course of training than the Orthodox practice requires. As for the closing ceremony after the instruction (in Orthodoxy this means circumcision and/ormikvah), in Reform it is not much more than a sort of solemn commencement exercise, a giving of a certificate after the study course is completed.

Since, therefore, the woman took the instruction, which is the important part of the Reform conversion process, and since she considers herself Jewish and her home Jewish, her conversion in this case may well be considered complete, for the sake of her children, even if she did not participate in the formal closing ceremony until after the children were born. Her children, therefore, from the point of view of Reform are fully Jewish. Even if they were to be deemed not Jewish, which in this case would be contrary to the spirit of Reform Judaism, the CCAR has decided that such children, if given full instruction in our religious schools, need no further acts of ritual conversion.

NRR 175-178

TEMPLE MEMBERSHIP AND CHARITY

QUESTION:

Our congregation has a bylaw that one of the conditions of membership is an annual contribution to the United Jewish Fund. One family in the congregation objects to this bylaw as a coercion of conscience. What would be the attitude of Jewish tradition to this bylaw of our congregation? (Asked by Rabbi Wolli Kaelter, Long Beach, California.)

ANSWER:

THERE ARE A number of social clubs in the various Jewish communities of America which will not accept a person into their membership unless he is a contributor to the United Jewish Fund. However, I am not at the moment aware of any congregation that has this requirement. The fact that I do not know of any such congregation would indicate that such a requirement is not likely to be a widespread practice, but this does not mean, necessarily, that a congregation is wrong if it does have this rule. Besides, it is not only a question of this congregation alone; there may well be other congregations that already have such a requirement and, also, it may be that situation will change and other congregations may wish to add such a requirement. For these reasons, it is important that the question raised here by the Long Beach congregation be discussed basically on the grounds of Jewish law and tradition. What, then, is the attitude of Judaism to the giving of charity, specifically to the charities of the organized community, and what relation does this giving of charity have to the Jewish religion itself and to the congregation?

The giving of charity is a mitzvah of special status. It is one of those mitzvos which have a double mandate. It is both a positive commandment and a negative commandment. As a positive commandment, it is Number 480 in the list and is based upon the verse in Deuteronomy 15:8: “Thou shalt open thy hand to the needy.” And as a negative commandment it is Number 479 and is based upon Deuteronomy 15:7: “Do not close thy hand” (i.e., from giving). Since it is a mitzvah of double status, it is therefore incumbent upon everyone. Hence even a poor man who is himself a recipient of charity must give charity too as his religious duty (Yore Deah 248:1, based upon Gittin 7b, top). As one gives charity, he must give it joyously; in other words, not show any ill-tempered reluctance (Yore Deah 249:3).

Furthermore, the spiritual status of charity, besides its status of a commandment, positive and negative, is that the promise to give charity has the religious status of a sacred vow (Yore Deah 255b). For all these reasons, because it is a positive and a negative commandment, and because it has the sacred status of a vow, Maimonides says one must be more careful in the fulfillment of the duty of charity than with any other of the positive commandments (Yad, Matnas Aniim 10:1).

Therefore, it is not surprising that the giving of charity is one of those few commandments of which the law says that we may exercise social pressure to insure its fulfillment. One other such commandment is the building of a synagogue. The members of a community may bring pressure on each other to organize and maintain a synagogue (Orach Chayim 150) and, according to some opinions, may exercise compulsion to see that there is a minyan always; that is to say, if there are only ten people, one may not leave the city without providing a substitute (Orach Chayim 55:22). So, in a similar way, the codes indicate that the same type of communal pressure (kofin zeh es zeh) must be brought to bear to see that the commandment to give charity is fulfilled. This is based upon the Talmud in Kesuvos 49b. The Tosfos raises some objection to this compulsion and then justifies it, and it is further justified by David ben Zimri in his commentary to Maimonides (ibid. 7:10).

If this is the case, as it manifestly is, that charity is so vital and inescapable a religious duty, then why is it that not every synagogue in America has this requirement? The answer, of course, lies in the difference between the organization of Jewish communities in America and the Old World. In the Old World the community was one organization, even though there may have been many synagogues; and in many of the European communities the amount of charity to be given was actually apportioned, just as the taxes were (see the Tosfos to Gittin 7b quoted above). But in America, where the Jewish communities were built up slowly from fragments of various and differing Jewish communities, each congregation became a separate and independent unit. This fact, by the way, created considerable changes in Jewish law as to the right to sell a synagogue, etc. So in America the organization of charities became community-wide independently, but was separate from the synagogue. Why, then, did not the various synagogues demand an active role in the charity organizations, since charity was a religious duty? The answer was a practical one. There developed a sort of division of function, especially in the large communities. Some individuals became active in the charities, and others became active in the synagogues. Besides, the charities organized great propaganda pressure for contributions and considerable publicity annually, which made it unnecessary for the synagogue to participate as an organization.

However, in a smaller community, where there is limited activist manpower, those active in maintaining the synagogue are to a considerable extent the same as those maintaining the communal charities, and it is natural for them to want both types of organizations to help each other.

If they do so, as they have done in the Long Beach congregation, they are fully in accord with Jewish religious tradition, which considers charity a spiritual obligation upon every Jew, whatever his financial status. And, also, tradition gives the right to a congregation or community to exercise social pressure (kofin) to guarantee the fulfillment of this commandment.

NRR 109-113

CONGREGATION USING CEMETERY MONEY

QUESTION:

In Wheeling, West Virginia, there are three Jewish cemeteries which are privately owned and managed. The owners now wish to turn these cemeteries over to the congregation. However, they make the condition that none of the income from the cemetery be used by the congregation for any other than cemetery purposes. May the congregation accept this restriction? If they accept it, may they, when circumstances change later, use the money for other congregational purposes? (Asked by B.L. through M.S.)

ANSWER:

THE FACT THAT the cemetery owners have publicly declared their intention of giving their cemetery property over to the synagogue has, in itself, a certain importance in Jewish law. It is deemed to be more or less in the nature of a vow; and the question then becomes this: May one who has announced a gift to a congregation change the purpose or the recipient or the conditions of the gift? This question is given its final decision in the Shulchan Aruch (Yore Deah 259:1). It is as follows: As long as the gift has not been formally transferred to the recipients (in this case, the congregation), the owners may change its purposes or the conditions of the gift, or even the recipient. In this case, the announced intention of the owners to turn the cemeteries over to the congregation does not obligate them to the letter of the condition until the property is actually formally received by the congregation (Yore Deah 259:1). Therefore, if the discussions between the donors and the congregation result in some sort of compromise, the conditions of the gift may well be changed. But if the congregation has already accepted the gift, it is difficult to change the agreed-upon conditions.

While difficult, it is not impossible even then (when the gift has already been formally accepted) to change the agreed-upon purposes under certain limited conditions. If the gift were, for example, a menorah given to the synagogue, or an Ark given to the synagogue, or a window, and the name of the donor is on the object or known to be associated with the object, then it is difficult to change the purpose for which it was given. Under these circumstances, the congregation may not sell the gift (e.g., the menorah) and use the money for some other congrega-tional appurtenance. Therefore, if this gift of the cemetery remains associated with the names of the donors, it becomes more difficult to use some of the money, the income, for any other purpose. But, for example, if many years from now the names of the donors were forgotten, there would be almost no difficulty in the congregation using some of the money of the cemetery income for any other congregational purpose.

But we must assume that this possibility is highly theoretical. It is known, and will be known for quite some time, who were the donors of this cemetery gift. Nevertheless, even when the names of the donors are known and associated with the gift, it is still possible for the congregation to change the original stipulation that none of the money be used for other than cemetery purposes. But the question is, what changes, according to the spirit of Jewish law, may a congregation make in the original stipulations of the gift?

This question goes back to the time of the Mishnah. In Mishnah Megillah 3: 1, we read that the officers may sell the city square (which was deemed a religious place because fast-day services were held there) to buy a synagogue. They may sell the synagogue to buy an Ark. They may sell an Ark to buy a Torah. The principle is derived here that in all such sales and purchases, the movement must be upward from the less holy to the more holy. This, then, is discussed in the Talmud, which tells us what is the most holy purpose of all for which any synagogue appurtenance may be sold or synagogue money may be used. In Megillah 27a the conclusion is that even a sacred Sefer Torah may be sold for the purpose of providing money for education. This is established as law in the Shulchan Aruch 259:2, which says specifically: “Money which has been donated for the needs of the synagogue, or for the needs of the cemetery, may be converted for the use of the school or the study of the Torah.” In other words, no matter what are the conditions of the gift, they may always be changed by the congrega-tion, but only for the purpose of Torah study. In our case that means helping the religious school or adult education. Isserles makes a partial modification of this rule, namely, that if education is already generally provided for, then of course such a change in the purpose of the original gift should not be made. But in general this rule stands.

This question has been discussed from Talmudic times on. Asher ben Yechiel (who left Germany at the time of the Crusades and settled in Spain) comes to this conclusion in his responsa (section 13, # 14), and so do Joseph Colon (15th century, Italy; responsum #124) and, in modern times, Moses Feinstein (Igros Moshe, new series, Orach Chayim 26).

Perhaps the solution of the problem should be as follows: that the congregation and the donors agree that the cemetery income shall not be used for any congregational purpose except when needed for religious education, provided that there will always be sufficient funds left for cemetery uses.

Incidentally, as a matter of practical experience, many congregations use money from their cemetery for congre-gational purposes. Of course, they are not restricted since the cemetery money was not a gift to the congregation, as it is in this case.

Addendum

Subsequently to writing the above, I was informed that the congregation and the owners of the cemeteries have not yet come to an agreement. The owners insist that the money in the cemetery funds and income be used only for cemetery purposes, and the congregation feels that there are too many restrictions placed upon the proposed gift.

Clearly it is of considerable importance that both sides make an effort to come to an agreement. On the part of the present owners of the cemeteries, they must realize that Jewish traditional law permits the transfer of some of such funds for educational purposes; that is to say, for Jewish religious educational purposes (Torah). But if, for exam-ple, the congregation conducts a class, as some congrega-tions are doing, to teach English to newly arrived immi-grants, it would not be permissible to use cemetery money for such a purpose. But for the religious school, for bringing lecturers for adult education, etc., it would be permissible. All this is stated and reiterated in the law. Then one might well say that this much of a concession the owners are not only permitted, but are required to make according to Jewish tradition.

As for the congregation and its board, they may well feel that too many restrictions are being placed on the gift. But they must also bear in mind that maintaining a Jewish cemetery is not the responsibility of private businessmen but of a congregation. All over the Jewish world, Jewish communities have been uneasy when they did not own the cemetery outright because princes and lords of the manor could desecrate the cemeteries by building roads through them. It is for that reason that the great Rabbi of Kovno two generations ago, Isaac Elchanan Spektor (in his responsa Eyn Yitzchok, Yore Deah 24), would not permit a burial in a cemetery which was not owned outright by the Jewish community. So the congregation surely is aware that to own a cemetery is a responsibility of the congregation.

Therefore it is clear that in spite of all difficulties, the spirit of the tradition remains, in this case, that both parties should make the necessary concessions so that a Jewish congregation can fulfill its responsibility and own a cemetery outright.

NRR 262-264

FUNERAL FOLKLORE: KEYS IN THE COFFIN

QUESTION:

A bereaved family insisted that their deceased father’s keys be put into his hand, to be buried with him. Is there any justification for this custom? (Asked by Louis J. Freehof, Sinai Memorial Chapel, San Francisco, California.)

ANSWER:

THERE IS AN understandable tendency for strange customs to grow up around the process of burial. The surviving relatives are so anxious to do everything they can do for their deceased dear one that almost any practice that they hear about they would tend to observe. It is for this psychological reason that the authorities are especially alert to avoid any unjustified practice or observance.

However, this particular practice of putting a key in the hand of the deceased does happen to have some vague rootage in Jewish law and tradition. In the post-Talmudic booklet Evel Rabassi (Semachos 8:7), there is the following statement: ‘ ‘We may loosen the hair of brides [who have died], uncover the faces of bridegrooms [usually the faces of the dead are covered], and hang the deceased’s key and ledger book on the coffin because of grief.” Then it adds that when Samuel Ha-Katan died, they hung his key and his ledger on his coffin because he had no child (hence there was special grief by his colleagues at his death). This statement is repeated by Asher ben Yechiel in his code (Moed Katan 3:8 1). His son, Jacob ben Asher, repeats this statement in his code, the Tur (Yore Deah 350), and Joseph Caro carries it over in the Shulchan Aruch (Yore Deah 350).

However, it is to be observed that this chance custom of the deceased’s keys and ledger being buried with him is deprecated by Joel Sirkes (the Bach) in his commentary to the Tur. He says this is a mistaken custom—we do not observe it, and we should prevent people who want to observe it. This warning of the Bach against the custom is repeated by the Be’er Hetev to the, Shulchan Aruch.

The custom of putting the keys with the dead, referred to in this question, is objectionable from another point of view. The custom of burying the key and the ledger, mentioned above and strongly objected to by the Bach, really was that these things were put in or hung outside of the coffin and not put into the hand of the deceased. Closing the hand of the deceased around any object or even just clenching the hand without an object in it is objectionable to law and custom.

The following is the statement by the Kitzur Shulchan Aruch (197:5): “It is necessary to be watchful that the dead should not close his hands. As for the custom in some cases to close the fingers, this custom must be abolished. Also, that some put into his hand rods they call geplach, this is a foolish custom.”

(By the way, the custom of twigs of geplach put into the hands of the deceased is evidently symbolic of having a cane or walking stick at the time of the Resurrection.)

To sum up: The custom of putting keys into the hands of the deceased is objectionable, therefore, on two grounds: first, that the Bach prohibits the custom as being against our prevailing usage, and second, because it involves clenching the hands of the dead, which is also objection-able.

NRR 85-87

A FORMER CHRISTIAN CEMETERY

QUESTION:

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.)

ANSWER:

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

90 NEW REFORM RESPONSA

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.

NRR 239-242

THE “UNWANTED” CHILD

QUESTION:

From the point of view of Jewish legal tradition, under what circumstances may an “unwanted” child be given up for adoption? (Asked by Paul A. Flexner, Youngstown, Ohio.)

ANSWER:

PERHAPS A BETTER term than “unwanted” should be used to describe the child, because it well may be that the mother would very much want to keep the child but for many reasons is unable to do so. Then the question might be rephrased as follows: Under what circumstances, according to Jewish law, may a mother give up a child for adoption?

There is a great deal of evidence in literature that children were given up by their parents. The Mishnah and the Talmud have a long sequence of legal development about children who have been abandoned by their parents. There are two classes of such children (both described in the Mishnah Kiddushin 4:2): One, shetuki, from the root meaning ‘ ‘silence”; this refers to children who are old enough to know their mother but do not know (i.e., there is silence about) their father. The other, asufi, are infants of whose parentage nothing is known.

In the discussion of these abandoned infants, the law gives a sort of an acceptance of the necessity which led the parent or parents to abandon the infant. The law reads that if it is in time of famine, then we assume that the parents have abandoned the child because they are no longer able to take care of him and they hope that someone will pick up their child and feed it (Kiddushin 73b, Even Hoezer 4:31). In other words, applying this to modern times, one reason for giving up a child would be if the parent or parents are unable to take care of the child and to raise it.

There is, of course, another motivation on the part of a modern parent to give up a child besides the motivation— which, alas, is not too infrequent—of the lack of means to maintain it. There is the sense of shame on the part of a young unmarried woman at having borne a child out of wedlock. The element of shame is an important consideration in Jewish law. If one person injures another, besides the pain and the healing for which the assailant must pay, he must also pay for the shame, if such is involved (Choshen Mishpot 420:3). In fact, shame is counted as one of the leading forms of injury. Among the types of shame mentioned in the law (Ketubos 3:4) is the shame caused either by rape or seduction. While the law does not discuss the possibility of a young woman in these circumstances giving up the child for that reason, it is obvious that among the asufi and shetuki, the abandoned children, many were abandoned, not only because of hunger, but because of shame. This, too, might therefore be considered a justification for giving up a child for adoption, even though it is not expressly mentioned, as hunger is mentioned, as a reason for giving up of the child.

There is one possible modern reason today which would not be supported by the tradition, and that is the special motivation to get rid of a child because it is illegitimate. In the first place, at least three-quarters of the infants considered by modern English and American law as illegitimate, would not be illegitimate according to Jewish law. In Jewish law, only the offspring of a union which cannot be made legal is illegitimate. For example, the offspring of an incestuous relationship, or the offspring of a relationship between a man and another man’s wife, these relationships cannot be legalized by a marriage at the time and such offspring only are illegitimate. But the offspring of a union with an unmarried girl (not a close relative) is, according to Jewish law, legitimate. Furthermore, while in all cultures illegitimate children are under some stigma and in Jewish law an illegitimate may not marry into a normal family, this latter is actually the only stigma. An illegitimate (even in the restricted Jewish sense) may be a judge, may be a witness, is bound to all the commandments as other people are.

Therefore it is not likely that Jewish law would provide any justification forgiving up an infant merely because it is illegitimate. However, it must be granted that in modern times and in modern society, the shame involved in having an illegitimate child is not in accordance with the liberal Jewish definition, but in accordance with the understanding of the environment in which the mother lives. The mother may well want to give up the child for this reason, but Jewish law has no specific support for it.

There is one additional justification in modern life for giving up a child for adoption. Roman law provided a regular legal system of adoption from one family to another. In Jewish law there was no such regular legal system. Nevertheless, one who raises another’s child—in other words, adopts him or her—is highly praised for it (Sanhedrin 19b). Examples are given in the Talmud of such private adoptions, even though there was no regular legal system for it. But today, there is a regular social organization for adoption, and whereas in the old days, in time of famine, a child might be left on the street in the hope that a worthy person would pick it up, nowadays prospective adoptive parents are examined and only if found worthy are given the child. Therefore there would be an additional justification today for giving a child up for adoption.

To sum up: The justifications for giving away a child are in Jewish law two clear ones: one, “hunger,” the inability to nourish the child; two, shame at having had the child. The permission is strengthened by the modern method of the careful selection of adopting parents.

NRR 88-91

GENTILES BURIED IN A JEWISH CEMETERY

QUESTION:

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.)

ANSWER:

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.

NRR 152-157

COVERING THE CASKET

QUESTION:

Nowadays many of the funerals of deceased members take place in the temple sanctuary or chapel. At these funerals the casket is sometimes of expensive bronze and at other times simpler and less expensive. A suggestion therefore has been made in the interest of equality and democracy, namely, that we should have a rule that every casket at a funeral on the temple premises should be covered with the same cloth (a pall). Is this suggestion in accordance with Jewish tradition and law? (Asked by Vigdor Kavaler, Pittsburgh, Pennsyl-vania.)

ANSWER:

THERE IS A long tradition in Judaism to democratize and simplify funeral procedures. The Talmud (Ketuboth 8b) speaks of a time when funerals had grown so expensive (especially with regard to the elaborate garments placed upon the dead) that people feared the expense, and many ran away from the task of burial of the dead in order to avoid the financial burden. Therefore Rabban Gamliel the Patriarch provided (as the Talmud put it) “simplicity for himself” (nohag kalus); namely, he decided that he would be buried in a simple shroud of plain linen. Because of the example set by the patriarch, the custom then became prevalent to clothe all the dead in plain, simple linen. Also, the Talmud (Moed Katan 27b) describes the differences that had developed between the funeral practices of the rich and those of the poor. Among the rich, food was brought to the mourners in gold and silver bowls. Among the poor, it was brought in plain reed baskets. The rich (at the funeral meal) drank out of expensive clear glasses, the poor out of cheap colored glasses. The rich families carried out their departed in elaborate beds, while the poor carried them out in plain litters. It was ordained therefore, in order not to shame the poor, that in all these three instances the simpler practices of the poor should be followed by all. From all the above it is clear that the trend, even in the Talmudic past, was for funerals to get more and more elaborate and expensive, and therefore that efforts were constantly made to simplify them and thus democratize them. So there is no question that the inquiry made here is in harmony with an ongoing traditional sentiment.

The question asked here concentrates primarily on the matter of the casket. But in the problems and the remedies just cited in the Talmudic passage, which dealt with various examples of luxury, the litter (in our case, the casket) was only one of the problems. It is therefore necessary to consider whether the casket has indeed any special importance and what in general is its status in Jewish law and custom.

The prevalent Orthodox custom today is to use a wooden casket; even metal nails and screws are avoided, and the casket is held together by wooden pegs. One would therefore imagine that a custom now so firmly held in American Orthodox Jewish life must surely have a long history behind it. But actually that is not so. The very need for a casket at funerals has no strong precedent in the Jewish past. In Palestine the dead were generally wrapped in cloths and put into the niches of the burial caves without any casket at all. The general use of the casket developed in Babylon, where, in the alluvial soil, no rocky caves were available. Yet even so, when caskets did come into use, they were not really “constructed” but were chiefly loose boards, so the body came into direct contact with the earth. Preferral burial was directly into the earth without a casket (Tur, Yore Deah 362; also Shulchan Aruch, ibid.). Complete caskets were used for Kohanim late in the six-teenth and seventeenth centuries (cf. Joshua Falk [d. 1614] to the Tur, ibid.). However, Sabbatai Cohen (Shach, ibid.) says that a complete coffin may be used if earth is placed within the casket, which would then constitute a direct contact with earth. Clearly, then, the casket now universally used has no special status or firm importance in the law.

As for the material of which the casket was made (which question is also involved here), Maimonides says it should be of wood (Yad, Hit. Avel, 4:4). Nevertheless, they did have caskets of other materials, as can be seen from the law in Shulchan Aruch, Yore Deah 362:5, which states that a coffin that has been used for one body may not be used for another body, and it adds that if the coffin is of stone or pottery, it should be broken so as not to be used again. Is, then, the modern casket of metal at all permissible? This is debated by the various authorities (see the citations in Reform Jewish Practice, Vol. II, p. 100).

From all this it is clear that the casket is not a central or long-established appurtenance in Jewish burial tradition. Up to recent generations no solid casket was used. Of course, as has been mentioned, nowadays Orthodox Jews prefer a wooden casket. But it is clear that caskets of other materials were, according to many authorities, permissible. Considering that in most modern cemeteries the casket itself, when lowered into the grave, is encased in a concrete box, and therefore is far removed from direct contact with earth, then surely, as far as non-Orthodox families and congregations are concerned, there is no essential objection to a bronze casket.

However, granting that a bronze casket is, at least for us, unobjectionable, the question which is asked here still remains: Is it not against the spirit of equality and democracy that some families should use an expensive bronze casket and others a simpler, perhaps even a wooden, one? Should not all caskets be covered with a carpetlike pall to achieve the appearance of equality at funerals?

If the question of equality concerned only the casket, the matter might be much simpler. But there is a much wider difference between funerals than the type of casket used. This was always so, as the passage from Moed Katan 27b indicates. Nowadays, too, there are other differences between funerals than differences of the caskets. Some families have very few flowers. Others will even have a complete blanket of orchids. At the grave some families will have almost no flowers and others will have many flowers. Would we consider, then, in the interest of equality, that we ought to prohibit all flowers at our funerals or, by some rule or other, restrict the use of them? As a matter of fact, therein is one of the basic Orthodox objections to the use of flowers at funerals. The classic statement of the objection is made by the famous Chassidic leader of the last generation, Eliezer Spiro (Der Mun-caczer) in his responsa Minchas Eliezer, Vol. IV, 61. He objects to flowers at funerals primarily because their use is undemocratic, the rich having flowers, and the poor, few or none at all. But in spite of such Orthodox objections to flowers at funerals, the Chaplaincy Commission (composed of Orthodox, Conservative, and Reform rabbis) permitted the use of flowers on Decoration Day on the graves of Jewish soldiers. The permission is based upon the argument that those flowers are for the honor of the dead. Much is permitted in Jewish law in honoring the dead.

If, therefore, it is virtually impossible to abolish or restrict the use of flowers, which the family and friends use to express their reverence for the dead, then by the same token, one cannot in a modern congregation properly prohibit any family from buying the most beautiful casket which they feel is in honor of their dead.

This being so, what can we do to express the spirit of equality and democracy which is a consistent and important motif in Jewish funeral history? This can still be done, I believe, by making a distinction between what is permanent and what is transitory, also between what is conspicuous and what will become invisible. What is permanent and conspicuous in the cemetery is the tombstone. The stone stands for all to see for generations. Many historic congregations, therefore, had committees to supervise the choice of tombstones (and inscriptions) so that none would be over elaborate or conspicuous (cf. Greenwald, Kol Bo, p. 3 80). This is because of the feeling that we are all “co-partners in the cemetery” (see Moses Schick, Yore Deah 170).

Therefore it is important that our equality should be expressed by what is permanently seen in the cemetery. We need not be too much concerned by the fact that flowers may be more numerous at one funeral than another. They soon fade away. And so, too, the casket, however expensive, is buried in earth, away from view.

To sum up: Orthodox sentiment would prefer to have absolute equality in every phase of the funeral, the plain wooden casket and no flowers at all. Non-Orthodox congregations, too, should not allow too much latitude with regard to the enduring appurtenances of the cemetery, the tombstones, and the permanent planting. But with the transient and soon-to-be-invisible objects of the funeral, the established, modern, liberal custom is to allow family choice and preference. From the Orthodox point of view, there should be no casket of bronze and no flowers at all. From our point of view, these things are permissible, and we should allow a family to express itself as it wishes in this regard to honor their dead, even though one funeral may, for the brief half-hour of the service, seem more elaborate than another. After the funeral, one grave is just like another.

NRR 28-32

DISPUTE OVER CANDLE-LIGHTING AND KIDDUSH

QUESTION:

In our congregation at the Friday night services, women light the Sabbath candles and the congregation remains seated; men recite the Kiddush and the congregation stands. A dispute has arisen on the ground that this indicates greater respect for the man’s part of the service than for the woman’s part of the service. Hence, it is sex discrimination. Are there clear rules as to when the congregation must stand during services? (Asked by Rabbi Stephen S. Pearce, Stamford, Connecticut.)

ANSWER:

A GENERATION AGO this question might have been dismissed as trivial and not worth serious consideration. Nowadays, however, with the nationwide agitation for women’s rights, the charge of such a supposed sex discrimination could well lead to divisive disputes in many a congregation. Therefore nowadays the problem deserves full and careful consideration.

First, let us consider the general question of what tradition demands as to the places in the service where the congregation must stand. This question is not easy to answer, first, because the services are composed of many different elements which have a different legal status, and second, because the law is not always definite as to standing or sitting, and local custom varies. Perhaps it would be helpful just to list what is fairly clear about standing or sitting during the service.

The Sh’ma, the most important part of the service, may be recited when a person is standing or walking or riding, since it is important to recite it at its proper hour (Orach Chayim 63). As for the Shemone Esra, standing is obligatory; hence it is called the Amida. Not only must the worshiper stand when he recites it, but also when the cantor repeats it, and the people must stand (according to the opinion of Isserles, 124:4). All agree that people should stand when the cantor, repeating the Shemone Esra, comes to the Kedusha. As for the reading of the Torah, while there are strict rules against leaving the synagogue during the reading, it is nevertheless not required that people should stand during the reading (146:4). At the Duchan, when the priest blessed the people, it was not necessary for the people to stand (see Be’er Hetev, Note 25 to Orach Chayim 128). There is also a custom (apparently Hungarian) for the congregation to stand while the Ark is open (cf. Contemporary Reform Responsa, p. 38).

Now, specifically as to standing or sitting during the Kiddush in the synagogue—first of all, the status of the Kiddush as part of the public worship is in doubt. Joseph Caro, in Orach Chayim 269, says the Kiddush properly should be recited in the place where the meal is eaten, and that it was inserted into the synagogue worship for the sake of strangers who would eat in the synagogue. Since such meals for strangers on Sabbath eve in the synagogue are no longer provided, Caro says it would be better not to have the Kiddush in the synagogue, and he calls attention to the fact that in Eretz Yisroel they do not have the Kiddush in the Friday evening service at all.

However, we Ashkenazim do have the Kiddush in the synagogue on Friday evenings, and Isserles says it is the general custom to stand up for this Kiddush {Orach Chayim 269). One other dispute about standing or sitting during the Kiddush concerns the Kiddush recited in the Succah. This question is left undecided {Orach Chayim 643:2).

Now, if the status of the Kiddush in the synagogue is debatable, the status of blessing the Sabbath candles in the synagogue is still more debatable. There is some sort of vague precedent for it cited by Isaac Lamperonti in his Pachad Yitzchok under the heading of Hadlakah. He speaks of a custom of giving a man the privilege of kindling the two lights which will stand on the reading desk during the Friday evening service. In general, however, the lighting of the Sabbath eve candles in the synagogue is an innovation of Reform synagogues. It would be impossible for this lighting ceremony to take place in Orthodox synagogues since, especially in winter, the candles are lit after dark. While it is the especial obligation of women to light the Sabbath candles {Orach Chayim 263:3), men too are expected to light them when they are away from home. There is no statement that I have found any where as to whether those who are present at the lighting of the candles should stand or be seated.

As to the general status of women as to taking a public part in Jewish services, it must be understood that whatever participation they have today has been given them by Reform congregations. According to Orthodox law, a woman is not required to recite the daily Sh’ma (Mishnah Berachos 3:3). Authorities disagree as to whether a woman is required to recite the Tefillah (of course, that does not mean she is prohibited from reciting any of the prayers she wishes to recite), but according to the Halachic rule, she cannot discharge the obligation of the congrega-tion by acting as cantor for prayers which she herself is not required to recite. There is an interesting note on this question in the Be’er Hetev to Orach Chayim 106:1, in which he says that most women recite their own devotions. (That is, of course, why the special Techinnos developed for the use of women. See my Conference paper on “Devotional Literature in the Vernacular.”)

In the light of all the above complexities of law and custom, what would be the most correct and also the most practical solution to the problem which the question asked here has presented? There are two possible solutions. One is to exchange the roles of the participants; that is to say, to have a woman occasionally make Kiddush and a man bless the lights. Another possible solution is not to change the roles of the participants but to change the posture of the congregation, namely, that they should stand for both ceremonies or sit for both. Which of these two possible solutions is the better practically and also the more justified of the two by tradition?

The first possible solution—namely, to exchange occa-sionally the roles of the participants—is subject to strong objection as follows: While the legal and traditional status of Kiddush and candle-lighting in the synagogue is rather shaky and uncertain, the status of both of these ceremonies in the home is firmly established both in law and in custom. After all these centuries, candle-lighting and the Kiddush at home have created an almost immovable mental association in the minds of our people. It is the mother who blesses the candles, the father who comes home from the synagogue and makes the Kiddush. This is the revered mental association in the heart of the people of Israel; and so it is neither justified nor wise to tamper with it.

As for the second solution, it is reasonable and has greater justification in the tradition precisely because there is no clear rule to be derived from traditional sources, as seen above, as to standing or sitting during either of those two ceremonies. Therefore, we have more latitude, and from this point of view the second solution is by far the better. We can change the posture of the congregation and make it identical for both ceremonies. Since there is some inclination in the law, as mentioned above, for the people to stand during the Kiddush in the synagogue, the logical solution then would be to have the congregation stand both for the Kiddush and for the candle-lighting.

May this solution be acceptable and end the controversy in the congregation. It seems to me to be the more logical as it is also the more justified of the two by tradition.

NRR 105-108

BURIAL IN A NATIONAL CEMETERY

QUESTION:

A Jewish veteran has asked whether it is permissible, from the point of view of Jewish tradition, for him to be buried in the national cemetery instead of in a Jewish cemetery. (Asked by Rabbi Bennett M. Hermann, East Meadow, New York.)

ANSWER:

DURING WARTIME the Jewish Chaplaincy Commission, composed of Orthodox, Conservative, and Reform rabbis, was confronted with the problem of whether or not it is permissible for a Jewish soldier to be buried at Arlington or any other national cemetery. The question arose because of a proposal made at that time to establish other national cemeteries in addition to Arlington; and so there would be plenty of space for the bodies of such veterans who had the right to be buried in a national cemetery.

The situation before the committee was not quite the same as the earlier situation with regard to Jewish soldiers fallen in battle. During and after wartime, cemeteries were established near the chief battlefields in Europe, and many Jewish soldiers fallen in battle were buried there. There is no objection at all, from the point of view of Jewish law, for a Jewish soldier who has fallen in battle to be buried where he fell (or near there), because a fallen soldier is considered a mayss mitzvah, i.e., a body which we are in duty bound to bury, who, according to the law, acquires possession of the place where he has fallen. Thus, according to the law, if a body is found in someone else’s field, he may be buried there, for a mayss mitzvah acquires the place where he lies ( Sanhedrin 47b, Yore Deah 364:3).

But the burial in a national cemetery of bodies brought back to the United States, or of veterans who die after the war, such are not to be considered mayss mitzvah, and the question is, therefore, whether they must necessarily be buried in a Jewish cemetery or whether they may be buried in a national cemetery, such as Arlington or others. To this question this joint committee gave an open answer. It did not say it is forbidden, nor did it say outright that it was permitted. The reason for not forbidding such a burial in a national cemetery outright was that there is no definite law forbidding it. While it is true that it is a long-established custom in Jewish communities to have Jewish cemeteries, this is not a required law, although one or two scholars in recent generations have endeavored to raise this custom to the status of mandatory law (Eliezer Spiro, Minchas Eliezer, II, 41; also Eliezer Deutsch in Dudoye Hasada, #3 3, 66). Many small congregations all through Jewish history did not have a cemetery of their own but sent the bodies to a larger community. All that the law actually requires is that a man should be buried in his own property (besoch shelo) (Baba Basra 112a) and also that no righteous person should be buried by the side of a sinful one (Sanhedrin 47a). And as an actual fact, in ancient times in Palestine, there were family caves which were the property of the family. Therefore the committee could not say outright that it is forbidden for a Jewish soldier to be buried anywhere else but in a Jewish cemetery. It left the matter open for each family to consult its own rabbi, who would decide the issue and whether he would officiate or not. Of course, under this joint ruling, Reform rabbis and many Conservative rabbis would permit burial in the national cemetery and would officiate. But beyond this general though indeterminate permissibility, there are definite and positive reasons why a Reform and possibly a Conservative rabbi would, without hesitation, permit such burial and officiate at it. First of all, the national cemetery belongs to the nation, and every Jewish citizen can be declared as much an owner of it as any other citizen. If he is buried there, the plot in which he is buried can certainly be called besoch shelo, “in his own property.” Besides, later scholars have often described the Jewish cemetery as a courtyard owned in partnership, chotzer shel shutfin, and certainly all of us, Jews and Christians, are, as citizens, partners in the national cemetery.

A further consideration is the fact that the national cemetery, which belongs to us all, is in no sense a Christian cemetery. The military services held over each soldier—the bugles, the volley, etc.—are the same for everyone. A Christian soldier may have a Christian chaplain or minister, a Jewish soldier may have a Jewish chaplain or rabbi. The national cemetery is as much Jewish as it is Christian.

These, then, are the considerations relevant here. All that the Jewish law actually requires is that a man should be buried in his own property and not next to evildoers. On a battlefield the grave is considered to be the property of the fallen soldier since he is a mayss mitzvah. Under non-battlefield conditions, a national cemetery belongs equally to every American citizen and is in no sense a Christian cemetery. Therefore no Reform and very few Conservative rabbis would deny the right or the propriety of a Jewish veteran to be buried in a national cemetery or would refuse to officiate for that reason.