Jewish Section in a General Cemetery
Is it permissible to use a Jewish section in a general cemetery where the Jews have only the right of burial and not outright ownership of the land? (From Rabbi Max Nussbaum, Temple Israel, Hollywood, California)
The question is one which has been discussed for over a hundred and fifty years, since the time when municipal cemeteries were established in Hungary and Jewish sections were provided in them.
Before going into the question itself, it is necessary to say this preliminary word: There is almost sufficient argument on both sides in Orthodox legal tradition to permit a decision either way. The basis of decision, therefore, is often a matter of mood and temperament. I need not tell you that the mood of Orthodox rabbinical leadership nowadays is almost entirely negative. They are always eager to prohibit because they consider these days to be dangerously undisciplined. On the other hand, our temperament is to be permissive because we consider that the Law should be adjusted to life. Hence I warn you that my answer is open to question as a liberal interpretation of the Law; but I must call your attention to the fact that the Orthodox opinions in the photostats which you enclosed are unjustifiably strict in their prohibition.
The first opinion is from the organization of the Spinka Chasidim in Brooklyn. The argument here is that Moses Sofer (cited in the “Pis-che Teshuva” to Yore Deah 363) was asked whether bodies may be disinterred from a temporary cemetery not owned by Jews to be reburied in a cemetery owned by Jews. Moses Sofer permits the disinterment in this case. From this answer the organization of the Spinka Chasidim wants to draw the conclusion that all burial in a cemetery not owned outright is forbidden by Jewish law. What they failed to state is that the cemetery from which Moses Sofer permitted disinterment was a temporary cemetery, opened in the time of the plague, which was now going to be turned back to agricultural purposes. It was for this reason that Moses Sofer permitted disinterment. But can it be logically argued that the Jewish section in a modern cemetery would be as impermanent and insecure as that plague cemetery to which Moses Sofer referred? Furthermore, the responsum of the Spinka Chasidim failed to cite the fact that in the same section of the “Pis-che Teshuva,” Ezekiel Landau was asked a similar question and forbade disinterment. In other words, Ezekiel Landau thus declared that a cemetery not owned outright was usable.
Second, with regard to the opinion of the Union of Orthodox Congregations, the argument prohibiting the use of such a section is that the owners can at any time disinter the bodies. Is that true? Does the law not protect the repose of those who have bought the right of sepulcher against willful disinterment?
Basically, the problem in Jewish law is the security of the bodies. Will their repose be undisturbed? Even if a cemetery is owned outright there is no guarantee that a road will not be built, requiring the removal of the bodies. Other than in case of such public works, surely the bodies are safe in their graves from willful disinterment, or can be made so. I will now cite a part of a responsum which I wrote to my brother Louis on the matter. I indicate in it that it is possible to obtain exclusive use of a certain section for Jewish burial without the need of buying the land outright; and certainly we can add that the bodies can be protected against willful disinterment.
There is a halachic problem with regard to a Jewish section in a nondenominational cemetery. About a hundred years ago, certain municipalities in the Austro Hungarian Empire insisted upon a municipal cemetery with a Jewish section. The rabbis insisted that the community make an effort to get outright ownership of the Jewish section. Without that the rabbis were very doubtful about such a combination of cemeteries, but they made some concessions about hedges and space between the sections. In other words, they reluctantly consented, but would have completely consented if the Jewish community could have gotten outright ownership of their section.
Now we come to the problem in America. I was asked just yesterday by a rabbi in the South whether their community should consent to having a Jewish cemetery as part of the nondenominational cemetery. I presume it is, as usual in America, a private corporation that is organizing the cemetery. Now, there was justification for the rabbis a hundred years ago to strive for complete Jewish ownership. They felt, in the long run, a greater sense of security for the dead; and as far as the immediate present was concerned, they also had a good reason for wanting complete ownership; that is, they wanted to be sure that the cemetery owners or company would not bury non-Jews in the Jewish section, in which case it would cease to be a Jewish cemetery.
I therefore told this rabbi in South Carolina that he should strive for outright ownership, but he told me that that is impossible because, at present, the company wants merely to sell individual graves in a section set aside as Jewish. I said to him that he must find some legal way in which the Jewish community will at least have absolute control over who will be buried in that section.
I do not want to complicate the matter in this regard, but if, for example, Reform, Orthodox, and Conservative Jews are going to use that Jewish section, there may have to be a division into three parts, because we permit certain practices in burial which the Orthodox do not permit. For example, we will permit a man to bury his unconverted Christian wife in his lot. Also, we will permit disinterment to a new family plot, whereas Orthodox law will permit it only if the parents are already buried in the plot to which the body is to be moved. If that is the case, and we need a Reform, Orthodox, and Conservative section, then there will have to be a city-wide committee in charge.
I asked a well-known lawyer (E. B. S.) to write me a letter making the legal suggestions whereby, short of actual ownership (which would be the best, of course), the Jewish community or the Jewish congregation can exercise complete control over who is to be buried in their section and how it is to be divided. Could, for example, the cemetery committee make a Jewish committee an agent, so that sales of land are made through it, and so forth?
What I want from you is this: The lawyer will give me suggestions from the legal point of view. You may have records in actual practice from some of these joint cemeteries, and you may know exactly what the Jewish group does to exercise religious control, while lacking outright ownership of the cemetery. Give me what information you have, and also what suggestions you may wish to make.
Of course, outright possession is preferable. Yet in our growing and changing cities, even outright possession is not a guarantee against the need of someday distinterring bodies. If outright possession is not possible, and if a reasonable legal guarantee can be obtained for exclusive Jewish burial in the section, along with legal protection against willful disinterment, then it is virtually impossible, in my judgment, to prohibit the use of such a Jewish section on the basis of Jewish law.