Burial

5784.4 – Splitting Cremated Ashes for Burial in Two Places

5784.4

Splitting Cremated Ashes for Burial in Two Places

Sh’eilah

Is it permissible to split ashes for Jewish burial? A congregant’s late wife was cremated and buried in a Jewish cemetery in one city. He is now in a committed relationship with a woman whose late husband is buried in a Jewish cemetery in another city, and she has a plot there as well. When he dies, he plans to be cremated and have a single funeral service where he currently lives, but wonders about the possibility of his ashes being buried in plots in both cemeteries. (Rabbi Stephanie Alexander, Charleston, and Rabbi Brad Bloom, Hilton Head)

T’shuvah

One could say that there are reasons to say yes to this request. It would resolve a question on which the tradition has no unanimous view, i.e., whether a person should be buried with their first spouse or their second.^{^[1]} With no compelling reason for preferring one or the other, it is certain that some people in that situation must make a choice that may lead to sadness and even hard feelings among the surviving family members. Allowing the individual to split their cremated remains cuts the Gordian knot and solves that which earlier generations could not solve. And since we allow cremation and the burial of ashes, why should we not endorse this idea?

As Reform Jews, moreover, we recognize that while inground or cave burial has long been the Jewish norm, there is no explicit prohibition of cremation in either the Bible or the Talmud. Reflecting that reality, in 1891 the CCAR undertook a thorough examination of the acceptability of cremation as a Jewish practice, and in 1893 adopted a resolution simply stating that if a rabbi is asked to officiate at a cremation “we ought not to refuse on the plea that cremation is anti-Jewish or irreligious.”^{^[2]}

However, consenting to cremation and consenting to all methods of disposition of an individual’s ashes are two very different matters. In the societies within which we Jews constitute a small minority, individuals opt for an ever-increasing array of options for disposing of or using the ashes as memorials to their loved ones. Rather than burying them, people may scatter them in a beautiful natural setting or in a location especially meaningful to the deceased. They may keep the ashes in an urn on the mantel or incorporate them into jewelry or artwork.^{^[3]} They may divide up the ashes and give a portion to each surviving family member to do with as they choose. All of these and more are increasingly popular.

We Jews, by contrast, remain stubbornly countercultural in our insistence on honoring our dead by returning them to the earth in the most natural possible state, interfering as little as possible with the body of the human being created in the divine image. For that reason, we Reform Jews have consistently treated cremated ashes just as we treat a body: “Ashes of a cremation should be treated with respect as human remains. They may be interred in our cemeteries, subject to the rules of the cemetery.”^{^[4]} In all of our responsa on cremation and questions of k’vod hamet (the honor of the dead), we have treated the ashes of the deceased as if they were the deceased’s body insofar as is possible. Thus, we perform taharah for a body that is to be cremated just as for one that will be buried.^{^[5]} We may place a tallit (without its tzitzit) on a body that will be cremated, just as on one that will be buried.^{^[6]} We do not inter a person’s ashes in the cornerstone of a synagogue (or any building), just as we would not inter a body there.^{^[7]} We do not allow one set of ashes either to remain unburied or to be dug up in order to be mingled with their spouse’s ashes when the latter dies, just as we do not leave a person unburied or open a casket to put a second body in it.^{^[8]}

Our response to the question before us, therefore, is in keeping with our own precedents. Given that we treat cremated remains with the same ritual and respect we accord the body itself, we can no more countenance splitting ashes to bury them in two places than we could countenance splitting a body to bury it in two places.

If a person’s remains cannot simultaneously be in two places, what alternatives remain other than the classic choice? While there is precedent for setting up a stone in the absence of a body, that practice is generally limited to memorializing individuals whose bodies cannot be recovered.^{^[9]} On one other occasion,^{^[10]} we advised against setting up two stones for one individual; that, however, was a question about two stones in the same cemetery, in two family plots in close proximity, for the purpose of keeping peace between the families. (Significantly, that was also a question about burial of ashes, and no one raised the possibility of burying ashes in both locations.) However, the individual in this case should be buried with one spouse; language can be added to the other spouse’s stone memorializing their marriage.

CCAR Responsa Committee

Rabbi Carey Brown
Rabbi Phil Cohen
Rabbi Joan S. Friedman, chair
Rabbi Ben Gurin
Rabbi Suzie Jacobson
Rabbi Audrey Korotkin
Rabbi Rachel Sabath-Beit Halachmi
Rabbi Amy Scheinerman
Rabbi Brian Stoller
Rabbi Micah Streiffer
Rabbi David Vaisberg
Rabbi Michael Walden
Rabbi Dvora Weisberg
Rabbi Jeremy Weisblatt

Yekutiel Yehudah Greenwald, Kol Bo al Avelut (NY: Philip Feldheim, 1973), 188. ↑
American ReformResponsa #100, “Cremation from the Jewish Standpoint.” https://www.ccarnet.org/ccar-responsa/arr-341–348/. ↑
At this time, there is a trend of wearing a small part of the ashes on a hand or around the neck in a piece of custom jewelry. Some have the ashes compressed into an artificial diamond and wear it as a jewel. Some encase the ashes in acrylic or glass as a visible element in a piece of art. ↑
Ibid., addendum. ↑
5776.1, “Taharah When the Family Chooses Cremation,” https://www.ccarnet.org/ccar-responsa/57761/. ↑
MRR #47, “Tallit for the Dead and Cremation,” https://www.ccarnet.org/ccar-responsa/mrr-269-274/. ↑
RRT #34, “Ashes of Cremation in a Temple Cornerstone,” https://www.ccarnet.org/ccar-responsa/rrt-167-169/. ↑
NARR #191, “Ashes of a Couple in a Single Urn,” https://www.ccarnet.org/ccar-responsa/narr-304-305/. ↑
ARR #112, “Tombstone in the Absence of a Body (Cenotaph),” https://www.ccarnet.org/ccar-responsa/arr-362-365/. ↑
CARR #120, “Name of the Deceased on Two Tombstones,” https://www.ccarnet.org/ccar-responsa/carr-180-181/. ↑

5784.3 – Burial of a Person in a Pet Cemetery

5784.3

Burial of a Person in a Pet Cemetery

Sh’eilah

A congregant is considering having their ashes buried in a pet cemetery. They have no family burial plot and their children are unlikely ever to return here to visit a grave. The pet cemetery allows human cremains and burial of ashes and is less expensive there than in a human cemetery. Other family members still alive might also choose to have their cremains buried in the same plot. Would this be acceptable from a Jewish perspective? If so, would it be necessary to consecrate the grave as a Jewish cemetery? (Rabbi Caroline Sim, Lynbrook, NY)

T’shuvah

Before we respond to the central question here of burying human remains in a pet cemetery, we will address a number of issues raised implicitly or explicitly by the question, in order to show that they are not relevant.

1. Cremation: We do not encourage cremation and have expressed a strong preference for inground burial as wholly in keeping with Jewish tradition. Nevertheless, the CCAR resolved in 1893 that rabbis should not refuse to officiate at cremations.^{^[1]} We further encourage the burial of cremains in our cemeteries.^{^[2]}

2. What constitutes a “Jewish” cemetery? A Jewish cemetery is land that a Jewish community has bought and designated for the purpose of burying its dead, marked off as such by a wall or fence. If the Jewish cemetery is a subsection of a larger non-Jewish cemetery, there should be either a distance of at least 8 cubits (about 12’7”) between the Jewish graves and the non-Jewish graves, or 4 cubits with a partition of at least 4 cubits (6’3”),^{^[3]} in order to demarcate where the Jewish cemetery is. There is very little halachic basis for the existence of a communal cemetery. It appears to have evolved as a matter of necessity, perhaps as a consequence of Jews settling in locations in the Diaspora where caves suitable for burial were uncommon and catacomb burials impossible.^{^[4]} Some Jewish communities hold some sort of ceremony to mark the establishment of a new cemetery, but this is a custom and not a halachic requirement.^{^[5]} Nevertheless, the cemetery is to be treated with the utmost respect, out of respect for the dead.^{^[6]}

3. Must a Jew be buried in a Jewish cemetery? Strictly speaking, the answer is no, because any plot of land that a Jew purchases for their burial is by definition a Jewish burial ground.^{^[7]} However, burial in the communal cemetery has long been the preferred practice. While this may have initially been the result of the impossibility of burial in private caves or catacombs, it has long since come to be seen as a value in and of itself—a Jew remaining among their fellow Jews in both life and death. It is not impossible that a Jewish family could opt to be buried on their own land, but it would be highly unusual and is not something we encourage.^{^[8]} Zoning laws also prevent this in most places.

It is possible to bury a Jew in a non-Jewish cemetery by creating the requisite partition (see above). This committee consented in 1985, for example, to the burial in the local non-denominational cemetery of members of a Jewish family in an isolated rural community. In that situation, however, the children were committed to staying in that community and wanted their parents’ graves nearby.^{^[9]}

4. Jews buried next to non-Jews: Jews have historically felt a powerful need for our own communal cemetery, reflecting norms that were so ingrained that they required no halachic mandate. The question of burying Jews together with non-Jews is largely a modern question, the result of the emergence of “non-denominational” public cemeteries in the modern era, and of the possibility of marriage across or outside of religious boundaries.^{^[10]}Prior to the modern era, why would a non-Jew have chosen burial in a Jewish cemetery in a historical context where interreligious families were an impossibility? A Jew who chose to be buried outside a Jewish cemetery would only have done so as an indication of their desire to separate from the community.

The imperative of maintaining an exclusively Jewish cemetery rests on the rather slim reed of a Talmudic reference to not burying the righteous next to the wicked.^{^[11]} When burial of non-Jewish spouses or other family members became a question in the Reform context, the answer was generally a permissive one. In Rabbi Solomon Freehof’s words: “If a man owns a lot in our cemetery and he wishes his Gentile spouse or their children buried in his lot, we should not object…. The Jewish owner’s lot is to be considered b’toch shelo (his property) and he does not object to his Gentile relative being buried near where he himself will be buried.”^{^[12]}

In response to this individual’s request, we thus acknowledge that: 1) the individual may choose to be cremated; 2) any plot this person owns and uses for their burial is their own Jewish burial ground; 3) there is no requirement that a Jew be buried in a Jewish cemetery, though Jewish graves in a non-Jewish cemetery should be distinguished as such as prescribed by halachah; 4) as liberal Jews, we do not require other people buried among us to be Jews. However, none of that addresses the central question here, which is whether a Jew may choose to be buried in a “pet cemetery.”

The question before us

There is no explicit prohibition in halachah against burying humans in pet cemeteries because no question like this ever arose. “Pets”—and all the more so pet cemeteries—are a mostly recent phenomenon of prosperous societies that can afford to feed and care for animals that serve as companions. We have twice been asked about burial of pet animals in our cemeteries: once in the 1960s and again in 2013. In both instances the answer was negative. In the latter responsum, Rabbi Mark Washofsky wrote:

Our opposition to cemetery burial for dogs and other animals is not based upon any sort of contempt for them, but upon the fact that there exists in Jewish ritual practice a clear and indelible distinction between animals and human beings. This distinction is real and relevant for us today…. It also explains why, although we may consider our pets as “part of the family,” they are not members of our religious community. It is precisely because we are capable of affectionate relationships with animals that we need explicitly to insist upon this distinction: for all our love for our animals, we do not count them in the minyan, we do not put their names on the Kaddish list, and we do not bury them in cemeteries consecrated for the interment of human beings.

We find that this distinction matters also in the case before us. Burial of a human body or of ashes should be in a place designated exclusively for human beings, reflecting the unique dignity of humans created in the divine image. Perhaps the individual and their immediate family requesting burial in a pet cemetery do not share this sensibility right now, but who is to say what children and grandchildren may feel in the future?

Furthermore, in this case, the desire to be buried in a pet cemetery is not even motivated by attachment to a pet animal. The reasons given by the shoelet are that the individual either cannot or does not want to spend the money for interment in a Jewish cemetery, because their family will not care to visit the gravesite, and that burial in a pet cemetery is less expensive.

Halachically, the obligation to purchase a grave falls on the individual themself or on their heirs. Talmud asserts: “One who says, ‘If I die, do not bury me out of the funds of my estate’— we do not heed him. It is not his right to enrich his sons and throw himself on the community [as a charity case].”^{^[13]} The Shulchan Aruch states:

One who gave instructions that [when he dies] he should not be buried at the expense of his estate, is not to be obeyed. Rather, they collect from his heirs [for] all his burial needs, even against their will; and likewise [for] all that is customarily done for [other] members of his family, and even [for] the stone that is placed on his grave, provided that they inherited money from their father.^{^[14]}

If the family is, in fact, so impoverished that they cannot afford burial in a Jewish cemetery, then it is the community’s obligation to undertake the burial costs. If, however, the family’s motivation is simply to save money on something that does not matter to them, they are flying in the face of long-standing Jewish law, practice, custom, and values.

It is deeply saddening that a person who chooses to be a member of a synagogue would nevertheless be so alienated from family and Jewish communal life that they choose to be buried among other people’s household pets. We realize that many Jews are alienated from traditional communal norms. We also acknowledge that some of our communal norms themselves are also not fixed in stone but have changed and will continue to change. As Reform Jews we are open to new forms and iterations of our values. But we find no positive expression of Jewish values in this request, and much that is negative.

If the individual persists in their decision to be buried in a pet cemetery, we strongly urge the rabbi not to officiate. Rabbinic officiation in this instance would be a classic example of marit ayin—doing something that is technically permitted, but in such a manner or context as to lead others to think that something prohibited is actually acceptable.

CCAR Responsa Committee

Rabbi Carey Brown
Rabbi Phil Cohen
Rabbi Joan S. Friedman, chair
Rabbi Ben Gurin
Rabbi Suzie Jacobson
Rabbi Audrey Korotkin
Rabbi Rachel Sabath Beit-Halachmi
Rabbi Amy Scheinerman
Rabbi Brian Stoller
Rabbi Micah Streiffer
Rabbi David Vaisberg
Rabbi Michael Walden
Rabbi Dvora Weisberg
Rabbi Jeremy Weisblatt

American Reform Responsa #100, “Cremation from the Jewish Standpoint.” ↑
Rabbi Mark Washofsky, Jewish Living, 196. ↑
Yekutiel Yehudah Greenwald, Kol Bo Al Aveilut (NY: Philip Feldheim, 1973), 163. A cubit is estimated to be 48 centimeters. Adin Steinsaltz, The Talmud: A Reference Guide (NY: Random House, 1989), 283. ↑
See ARR #99, “Non-Jewish Burial in a Jewish Cemetery,” for a thorough survey of the halachah. See also CARR #97, “Non-Jewish Burials.” For a survey of Jewish burial practices in the period of the Mishnah, see Steven Fine, “Death, Burial, and Afterlife,” in Catherine Heszer, editor, The Oxford Handbook of Jewish Daily Life in Roman Palestine (NY: Oxford University Press, 2010), 440-462. ↑
Greenwald, Kol Bo, 163ff. ↑
BT M’gillah 29a: “The Sages taught: In a cemetery one does not act with frivolity. One does not graze animals in them, or run a water channel through them, or gather the grasses in it [for animal fodder].” ↑
ARR #99. ↑
See Contemporary American Reform Responsa #103: “Burial in the Garden.” ↑
CARR #105 “Burial in a Christian Cemetery.” ↑
There have been exceptions, but the very fact that they can be individually documented reflects how exceptional the circumstances were in each instance. See the 1919 responsum by Gotthard Deutsch included in ARR #98, “Burial of Non-Jewish Wives in Jewish Cemeteries,” American Reform Responsa 325–331, especially
328–329. ↑
BT Sanhedrin 47a; Shulchan Aruch Yoreh Dei-ah 362:4. ↑
ARR #99. ↑
BT K’tubot 48a. ↑
Shulchan Aruch Yoreh Dei-ah 348:2. ↑

5774.6

CCAR RESPONSA COMMITTEE

5774.6

“Resomation”: The Liquid Disposal of Remains

Sh’elah.

“Resomation” is a commercial name for the chemical process known as alkaline hydrolysis, in which bodies are chemically reduced by means of pressure and warm alkaline water leaving behind only porous white bone remains and waste-water.[1] The process takes two to three hours for completion. The cemetery industry also calls this process “Bio-Cremation”[2] because it produces a similar result to cremation with far less negative environmental impact.[3]

I ask the following three questions:

Since “Resomation” uses water instead of fire to consume the body (except the bones), does it circumvent our people’s historic, cultural and religious bias against cremation?

Given the traditional halachic requirement that the corpse be buried with all its parts in a grave or crypt, would “Resomation” (in which everything but the bones are liquefied and purified, but not saved for burial) be prohibited in Reform Judaism?

Given, as well, the increasing dearth of and high expense of cemetery space in large urban areas, may the bone remains be interred in an already occupied family grave or crypt? If so, what requirements would there be in order to respect the principle of the separation between bodies in a formerly single grave? (Rabbi John Rosove, Hollywood, CA)

T’shuvah.

Alkaline Hydrolysis (“Resomation”): Is It Acceptable? In asking whether alkaline hydrolysis might be acceptable on Jewish grounds, our sho’el suggests an analogy to cremation. We should begin therefore with a look at the development of both the traditional Jewish and Reform Jewish positions on cremation. Our responsum no. 5766.2, “When a Parent Requests Cremation,”[4] contains a detailed discussion of our topic. The following is a brief summary of its conclusions.
Although burial has been the historical Israelite and Jewish practice for disposing of human remains, cremation is not explicitly prohibited in the classical Biblical, Talmudic, or halakhic sources. It is only in the nineteenth century, when cremation becomes more widespread in European society, that we find Orthodox rabbis speaking out against it and finding reasons to prohibit it.
Reform Judaism does not prohibit cremation. Our Conference adopted a resolution to this effect in 1892; that resolution has never been repealed, amended, or superseded by another Conference vote; and our subsequent halakhic literature (i.e., our responsa, guides to religious practice, and rabbi’s manuals) have repeatedly noted that cremation is an “acceptable” and “permissible” practice for Reform Jews.
On the other hand, that same Reform halakhic literature has in recent decades significantly modified its previously affirmative stance. Though we still do not “prohibit” cremation, we actively discourage it for two reasons: first, burial is the normative traditional Jewish practice, and second, after the Holocaust cremation has taken on deeply negative associations with one of the darkest periods of our people’s history.

Based on the above, the sho’el’s analogy argues that “Resomation” should be at least as acceptable as cremation in Reform Judaism. Cremation, despite our discouragement of it, remains officially a permissible practice within our movement. Alkaline hydrolysis is certainly no more objectionable on moral or religious grounds than cremation. Indeed, since much of our recent turn against cremation stems from its symbolic evocation of the Nazi crematoria, it follows that “Resomation,” which does not involve fire, would be even less objectionable.

That argument, however, does not account for the other – and, to our mind, the stronger – reason for our opposition to cremation, namely that burial is the normative traditional Jewish practice. “Normative” in this context means first of all that we endorse burial precisely because it is Jewish, that is, the way in which Jews have for many centuries chosen to consign the remains of their loved ones, and that we find it meaningful to identify our own practice with that of our people.[5] “Normative” also means that burial is the specific means by which our tradition seeks to realize the value of k’vod hamet, the dignified treatment of the dead. And by that same token, our tradition has come to identify cremation, the reduction of the body to ashes, as an act of nivul hamet or bizayon hamet, the contemptible or disrespectful treatment of the dead.

This last point is crucial. Values like k’vod hamet and nivul/bizayon hamet are not given to objective definition. It is tradition, the collected wisdom and experience of a particular historical culture or community, which fills these lofty but vague concepts with specific meaning. This, quite simply, is why these universal values, relevant and applicable to all cultures, are observed differently in each of them. For example, the liberal Western tradition holds cremation to be an honorable and dignified means for the disposal of remains, while the Jewish tradition, which sees “a huge gulf between peacefully decaying in the ground and the roaring destruction of the cremation oven,”[6] differs fundamentally from that of the contemporary West on this issue. We Reform Jews, active participants in both these cultural traditions, cannot escape the fact that they differ on this issue. Ultimately, we must choose between them, for we can give substance and specificity to terms like k’vod hamet and bizayon hamet, the honorable or disgraceful treatment of the dead, only when we work within the boundaries of some particular cultural framework.[7]

For the members of this Committee, the choice is clear: we seek to mourn our dead and to honor them as Jews, that is, in accordance with the customs and traditions of our people. Accordingly, we do not see much of a distinction between cremation and alkaline hydrolysis. The latter, true enough, was not utilized by the Nazis.[8] But like cremation, it is a chemical process aimed at the rapid decomposition of human remains. Like cremation, it is a radical departure from traditional Jewish burial. And as with cremation, there is “a huge gulf” between the slow decay of burial and the rapid decomposition achieved through chemical inducement. Since the two procedures are so comparable, we cannot say that Reform Judaism would treat them differently. Thus, while it would not necessarily prohibit “Resomation” any more than it prohibits cremation, it would and should actively discourage the practice.

Burial of Remains from “Resomation.” The second part of our sh’elah asks whether alkaline hydrolysis is prohibited on the grounds that the liquefied remains (other than the bones) are discarded and not saved for burial. Our response is the same we would give to a question concerning cremation: whatever remains survive the chemical decomposition process should be buried, in (partial) fulfillment of the traditional mitzvah to bury the dead.[9] Since, in theory, the liquefied remains can be preserved[10] (unlike cremation, where the incinerated remains are emitted into the atmosphere), every effort should be made to bury them along with the bones of the deceased.
Burial of Remains in Same Grave or Crypt. Jewish tradition generally forbids the burial of more than one body in a single place. Each must have its own resting place.[11] The same should be true in our case: the remains from cremation or alkaline hydrolysis should be buried separately. If limitations of space are indeed an issue, Jewish tradition permits the burial of corpses or coffins on top of one another, provided that they are separated by at least six handbreadths of earth.[12]
A Concluding Note. In his third question, our sho’el mentions the environmental and financial concerns that are often raised in discussion of cremation and other alternatives to traditional burial. Regardless of our attitudes toward cremation and “Resomation,” individuals should not feel driven to consider them for reasons of cost or care for the natural environment. While this is not the place to deal with this subject at length, we should stress that Judaism affirms the values of affordable[13] and ecologically-friendly burial.[14] Our communities can and should work to provide access to burial practices that reflect these teachings of our tradition.

NOTES

“Resomation” is specifically the registered trademark of Resomation Ltd. (http://www.resomation.com , accessed June 12, 2014). Other names for the process include “aquamation,” the registered trademark of the Australia-based Aquamation Industries (http://www.aquamationindustries.com , accessed June 12, 2014). The sh’elah’s description of the process is based upon the details provided at both websites. See as well Ruth Davis Konigsberg, “Resomation,” New York Times, http://query.nytimes.com/gst/fullpage.html?res=9504E1DD1E39F930A25751C1A96F9C8B63 (posted Dec. 13, 2009, accessed June 12, 2014) and Marina Kamenev, “Aquamation: A Greener Alternative to Cremation?”, http://content.time.com/time/health/article/0,8599,2022206,00.html (posted Sept.28, 2010, accessed June 12, 2014).
The trade name that Matthews International’s cremation division gives to its version of the process; see http://www.biocremationinfo.com (accessed June 12, 2014).
See Davis, note 1, above: “(‘Resomation’) uses about a sixth of the energy of cremation and has a much smaller carbon footprint, according to Sandy Sullivan, the managing director of Resomation, a company in Scotland that has designed a resomation machine.”
Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 2, pp. 193-207, http://www.ccarnet.org/responsa/nyp-no-5766-2.
See our responsum no. 5766.2 (preceding note, at p. 199): “This is what we mean by the positive reevaluation of ‘tradition.’ … We are now more inclined than ever before to adopt or to preserve a ritual observance precisely because it is ‘Jewish.’ We are more likely to regard a practice’s traditional pedigree as a reason for maintaining it, especially when there are no compelling moral or aesthetic arguments against that practice. We are therefore today more likely – though not obligated – to oppose cremation on the grounds that burial is a mitzvah, the ‘normative’ Jewish way of disposing of human remains.”
The phrase is that of a corresponding member of this Committee, who concludes: “There can be no doubt that cremation is the very antithesis of k’vod hamet.”
See our responsum no. 5766.2 (note 4, above, at p. 200): “such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations.”
And see our responsum no. 5766.2 (note 4, above), section 1, “Cremation in Jewish Law”: it is worth remembering that, although our classical texts do not explicitly prohibit cremation, opposition to it among Orthodox halakhic authorities solidified in the nineteenth century well before the Shoah.
B. Sanhedrin 46b, on Deuteronomy 21:23; Yad, Hil. Avel, 12:1. On the burial of cremains in a Jewish cemetery see R. Walter Jacob, New American Reform Responsa (New York: CCAR Press, 1992), nos. 191-192, http://www.ccarnet.org/responsa/narr-304-305 and http://www.ccarnet.org/responsa/narr-306-307.
In an addendum to his original question, our sho’el, Rabbi John Rosove, makes this point, on the basis of a conversation with a cemetery manager.
The one great exception is a small child “who slept with its parents (or grandparents) in life.” That child may be buried along with his or her parent or grandparent. See Shulchan Arukh Yoreh De`ah 262:3 and R. Solomon B. Freehof, Recent Reform Responsa (Cincinnati: Hebrew Union College Press, 1963), no. 29.
Shulchan Arukh Yoreh De`ah 262:4.
See R. Shimeon Maslin, Gates of Mitzvah (New York: CCAR Press, 1979), p. 55: we should follow the example of Rabban Gamliel, who instructed that he be buried in simple linen shrouds rather than expensive ones to demonstrate that burial need not impose a crushing financial burden upon the mourners (B. Mo`ed Katan 27b). And see the conclusion of our responsum no. 5766.2 (note 4, above). “By ‘traditional burial,’ we do not mean to endorse many of the practices that, although associated with burial in the public mind, would be deemed as excessive or inappropriate by many of us. Among these are such elaborate and unnecessary steps as embalming, expensive caskets, and the like. Jewish tradition emphasizes simplicity and modesty in burial practices; individuals should not feel driven to choose cremation in order to avoid the expense and elaborate display that all too often accompany contemporary burial.”
See the discussion (section 3, above) on limitations of space. We have encountered this problem numerous times throughout our history, and the tradition has proven itself capable of arriving at solutions to the problem of cramped cemetery space. In addition, there is no theoretical reason why Jewish tradition cannot accommodate the contemporary movement toward “green burial” – that is, burial in the absence of concrete vaults, expensive coffins, embalming, and the like (http://www.reuters.com/article/2013/05/11/us-usa-florida-burial-idUSBRE94A05620130511, accessed June 18, 2014; http://www.greenburials.org, accessed June 18, 2014). Indeed, a simple reading of our sources indicates that “green burial” is Jewish burial, the way that our classic texts envision the mitzvah.

HaArets 7/31/84

JRJ, Summer 1986, 70

BURIAL AT SEA

Question: An individual has died on a cruise ship. As he had a great love for the sea, his wife decided to bury him at sea. This avoided international complications as the ship was ten days from port. What is the attitude of Jewish tradition to burial at sea and to the subsequent mourning rites? (M.G.S., Pittsburgh, PA)

Answer: Jewish tradition takes the obligation of burial in the earth for granted; burial in the ground was considered part of the process of atonement. When Gesher Chayim discussed the question of death on the high seas, it permitted embalming to preserve the body until land was reached. Embalming is generally prohibited by Jewish tradition (Gesher Chayim 1.73).

It is true that burial is usually required to take place immediately following death, i.e., on the same day or the following day (San. 46b; Shulchan Aruch, Yoreh De-a 357.11). Tradition permits the family to wait in order to do proper honor to the deceased and to permit individuals who may live at a distance to attend the funeral services (M. K. 22a; Shulchan Aruch, Yoreh De־a 357.2). Burial in the ground, however, takes precedence over the need to bury immediately.

There have been occasions in the past when immediate burial was not possible. Rashi mentioned a siege in which bodies that could not be buried were placed in coffins and stored (Rashi to Shab. 152a). Similar situations occurred when our forefathers were faced with various government regulations (Shulchan Aruch, Yoreh De־a 375.5, 7), or in wartime.

In our instance, it would have been proper to hold the body until burial on land could have been accomplished. As the burial has taken place, however, the normal mourning rites should be carried out as with any other deceased.

Burial at sea is prohibited by Jewish tradition and is not appropriate.

Walter Jacob, Chairman CCAR Responsa Committee

RR 150-154

Delayed Burial

If burial is for some special reason delayed for weeks or longer, when shall mourning begin? At the time of death or at the time of the delayed burial? This ques tion has been asked in a number of different forms:

1. During the Korean war, if a soldier died over seas the body was not shipped home for months, but was put into a coffin and stored away. The family was, of course, notified as soon as the death took place.

2. During a strike of cemetery workers in San Francisco, bodies were stored in closed coffins for weeks, until the strike was settled and the burials could take place.

3. A body was cremated some weeks before Yom Kippur. The ashes were placed in a box to be kept until the family could gather from various cities for the burial. May the name of the deceased, whose ashes are still unburied, be read from the memorial list on Yom Kippur?

On the face of it, the law seems to be quite definite and unmistakable, namely, that mourning should not begin until the body is buried and the grave filled. The Shulchan Aruch (Yore Deah 375 : 1) states this rule clearly. This is based upon the Boraita in Moed Katan 27a, where there is a discussion as to when mourning begins. R. Eliezer says, When the body leaves the house. Rabbi Joshua says, When the “gollel” is closed. See Rabbenu Chananel (ad loc), who says that we follow the opinion of R. Joshua; he interprets Joshua’s word “gollel” to mean the grave lid, and therefore to mean when the burial is completed. Maimonides (Yad Hil. Avel I, 2) decided according to Rabbi Joshua.

David Ibn Zimri, in his commentary to Maimonides, calls attention to the fact that Maimonides follows the opinion of Rabbi Joshua in the Talmud and that he interprets R. Joshua’s phrase “when the ‘gollel’ is closed” to mean when the grave is closed. But it is precisely this ques-tion as to the meaning of the word gollel which is the subject of a basic legal dispute between Rashi and Rabbenu Tarn.

This dispute is found in the comments on the Talmud passage in b. Shabbas 152c, where the word gollel is used. Rashi in his commentary says that gollel means the lid of the coffin, while Rabbenu Tam (in the Tosfos) says it means the covering of the grave. Then according to Rashi, mourning can begin as soon as the body is enclosed in the coffin (and the lid put down), while according to Rabbenu Tam, mourning cannot begin until the grave is closed.

This disagreement is carried on by later scholars. Thus Nachmanides (quoted in Tur, Y. D. 375) follows Rashi, while Joshua Falk (in his “Perisha,” ad loc.) follows Rabbenu Tam.

Later authorities, however, seem to have made use of both basic opinions. Under normal circumstances, they follow Rabbenu Tam (mourning to begin after the burial), but under emergency circumstances, they avail themselves of Rashi’s opinion. Thus, while Joseph Caro gives as the normal rule (in Yore Deah 375 : 1) that mourning does not begin until the grave is filled, nevertheless in 375 : 4 he definitely follows Rashi’s opinion, under a special set of circumstances. He says that when the city is under siege and the body cannot be buried, then the body should be put into a coffin, the coffin moved to another house, and mourning can begin. “Because,” he adds, “the closing of the coffin is equivalent to burial.”

That mourning may, under special circumstances, take place before burial can be seen also from the law that if burial is to be in a distant city, the mourning can be begun in the city where the man died as soon as the local mourners turn their faces from the procession which takes the body away (cf. Maimonides, Yad Hil. Avel I, 5; Asher ben Yehiel to Moed Katan III, to p. 22; Shulchan Aruch 375 : 7 in Isserles).

That the mourning need not always wait for the burial can also be seen from the fact that if a body is confiscated by the government, or if a person is drowned in a limited body of water (as a pond or a river) and the body not found, in both such cases (confiscation or drowning) mourning can begin when the relatives give up hope (m’she-nish-yo-ashu) of getting the body for burial. (Cf. Shulchan Aruch, Yore Deah 375 : 5, 7.)

The first two cases cited with this question (the soldier dying overseas, and the bodies held during the cemetery strike) clearly come under the heading of exceptional circumstances; thus the law follows Rashi’s opinion, and mourning can begin when the coffin is closed, especially when the coffin has been moved from the place of death (as in Yore Deah 375 : 4). As for the third case (the ashes of a cremated body not yet buried), this problem can hardly be decided upon the basis of traditional law since Orthodox scholars object to cremation altogether and there is therefore very little legal development of the question. There is some discussion whether the ashes should be buried at all. Rabbi Meir Lerner, of Altona, Germany, declared that they should not be buried (cf. his “Chaye Olam”), while Elijah ben Amozegh, of Leghorn, said that the ashes should be buried (cf. his booklet, “Ya’aneh Vo-esh”).

We must therefore decide the matter on the basis of common sense and community feeling. There are many cases where the ashes are never buried, but are kept in an urn in a columbarium. Should we say that there should never be mourning in such a case? Obviously not. In cremation, where the body is entirely destroyed, mourning can certainly begin immediately after the body in its closed coffin has been turned over to the crematory.

As for Yahrzeit, memorial services, and the reading of names on the memorial list, all these are part of mourning and can begin in all these exceptional cases before burial, as has been indicated.

RR 140-142

Burial in a Christian Cemetery

Is it proper for a Reform, rabbi to officiate at the burial of a Jew in a Christian cemetery, this Jew having been the husband of a practicing Christian? (From Rabbi Martin B. Ryback, Norwalk, Connecticut)

The question is not without precedent, at least as far as military funerals are concerned. In the armed services Jewish soldiers were buried side by side with Christian soldiers and the Jewish chaplain officiated. Of course, under battle conditions a body may be buried where it falls, since a “Mayss Mitzvah” “acquires its place,” that is, the place where it lies, and should be buried with the earth which has been spattered by its blood. Closer to our prob lem is that concerning the burial of soldier-dead in military cemeteries in the United States. Although these ceme-teries (as, e.g., Arlington) are not necessarily Christian, though they may have been so dedicated, they are certainly not Jewish cemeteries; yet the Division of Religious Activities of the Jewish Welfare Board (a committee con-sisting of Orthodox, Conservative, and Reform rabbis) decided that a chaplain should officiate at such burials (see Responsa in Wartime, pp. 83-84).

The fact of the matter is that while separate Jewish cemeteries are an old Jewish tradition, they are nowhere specifically required in the codes. Perhaps the reason is that originally in Palestine the dead were not buried in communal cemeteries but in family-owned caves. Hence the only requirements as to the locale of burial are, first, that a man should be buried in his own property, “b’soch she’loh” (b. Baba Bathra 112a), and, second, that a righteous man should not be buried beside a wicked man (b. Sanhedrin 47a). On the basis of these two requirements, two rabbis of the last century attempted to prove that a separate Jewish cemetery is a requirement of the law. (Elazar Spiro, of Muncacz, “Minhat Elazar” II, 41; and Elazar Deutsch, in “Duda’ay Ha-sodeh” #33, #66, #89). But the attempts are far-fetched. At the most, it can be said that the use of a Jewish cemetery is a minhag.

A Reform rabbi must, therefore, make his decision as to how far he need follow the principle that “the minhag of the people of Israel is law. ” Certainly the minhag should be respected as much as possible. A similar case came up in my own community recently, and I succeeded in persuading the relatives to change their intention of burying the body in a Christian cemetery, and to bury it instead in our Jewish cemetery. There is a strong argument which a Reform rabbi especially can use. Since we permit the burial of an unconverted Christian wife in her husband’s lot in the Jewish cemetery (cf. Reform Jewish Practice, I, 137 ff.), the couple need not be parted if the husband is also buried there.

I might add that one good reason for trying hard to dissuade the people concerned in this case from this burial of a Jew in a Christian cemetery is that it may start a precedent of burying more and more members of that family in the Christian cemetery. It was this which I feared most in the case in Pittsburgh, and for that reason I dissuaded those concerned.

If, however, the dying Jewish man insists upon burial in the Christian cemetery, then the following requirements should be insisted upon: First, the family should buy a lot (not a separate grave) in the cemetery. Burial in this lot can then be considered burial “in his own property” (b’soch she’loh). Second, the lot should be located in an uncrowded portion of the cemetery, so that there may be a few yards’ space between it and the other lots. Thus it will be like a Jewish section in a general cemetery, which, if spaced or hedged, is permitted by the strict Hungarian authorities. (Cf. Reform Jewish Practice, I, 125 ff.).

RR 136-140

Burial of Enemies Side by Side

A husband and wife quarreled and were divorced. She died first and he instructed his children that they were not to bury him beside her. He reiterated these instructions during his last illness. The children indi-cated that they would carry out his instructions. Are the children obligated by Jewish law, custom, or ethics to carry out this request?

In general, it is a principle in the law that “one is in duty bound to fulfill the commands of the departed.” This is based upon the discussion in Mishnah Ketuboth V, 7, which deals with the question of a father leaving money for the purchase of a field, the income from which is to support his married daughter. The daughter, however, says that the money should be turned over to her husband because she prefers to rely upon him to support her, using that money. But the law says that the executor of the father’s estate should not listen to the daughter, who wants the money turned over to her husband, but should carry out the command of the father and buy a field for her support. The Talmud, in discussing the Mishnah, uses the phrase “One must fulfill the command of the dead.”

The question is, then, how far need one go in carrying out the desires of the departed? The Shulchan Aruch (Choshen Mishpot 252 : 2) repeats substantially the opinion of the Mishnah and the Talmud, that the duty is to fulfill the command of the dead. But Isserles makes some limitations as to when this does not apply, such as depending upon when the money came into the hands of the executors, and so on. Jacob Reischer (Metz, eighteenth century, “Shevus Ya’acov” I, 168) deals with an interesting variation of this question. A mother asked her sons to promise that should any disputes arise among them after her death, they would always turn to a certain man (whom she designated) as their arbiter. The sons made the promise to her; but when a dispute arose after her death, one of them refused to accept this man as the arbiter, claiming that he (the arbiter) was an ignoramus and lacked the knowledge to settle the dispute according to the laws of the Torah. Is it the duty of the children to fulfill the will of the departed mother in this regard? Jacob Reischer says that in the Talmud and codes the law on this matter (that one must fulfill the wishes of the dead) applies only to the wishes of the dead with regard to the disposal of their estates but not with regard to other matters. Nevertheless, if the sons had made this promise to their parent, though the law does not require them to fulfill it, it would be a “true kindness” if they went beyond the requirements of the law; but that is for them to decide.

As for the fact that this promise was made to the mother when she was dying, it was merely made (so the son claims) so as to quiet her mind while she was dying, and therefore is not really a vow. This the law clearly states in the note of Isserles to Yore Deah 232 : 17.

Hence it is clear that in the case we are discussing, the promise made to the father in his final sickness, if it was made merely to ease his mind, is not to be considered a legal vow; nor is his desire not to be buried by the side of his wife to be considered one of those wishes which come under the head of the principle that “the wishes of the dead are to be fulfilled,” since this principle applies only to his wishes as to the disposal of his estate.

As a matter of fact, there is even some ground for definitely disregarding his wish. If, for example, the situation were the other way around and it were a question of where the wife should be buried, and the husband had said, “Do not bury my wife by my side,” this wish should definitely be disregarded. The law in Shulchan Aruch (Yore Deah 366 : 4) is as follows: If her father says, “Let her not be buried beside me,” and the husband says, “Let her not be buried beside me, ” she must be buried beside her husband. The reason for this is that it is the husband’s duty to provide for the burial of his wife. (See the origin of the law in Mishna Ketuboth IV, 4, and also in Semahot XIV, 7.) In fact, the Shulchan Aruch (in Even Hoezer 89) says that the court may even sell the husband’s property to provide for the burial of his wife. (Of course, if the couple is divorced, the husband has no further legal obligations toward the wife.)

However, in the special case we are discussing, there is a ground upon which the request of the husband should receive some consideration. The laws just mentioned, that the request of the husband should be ignored, seem to apply only in the case where the husband is merely trying to avoid his responsibility in the matter, but if it is a case in which there is actual enmity between man and wife, other considerations arise.

The law is clear (Shulchan Aruch, Yore Deah 362: 6) that two who are enemies to each other should not be buried side by side. Although this law does not go further back than the Testament of Rabbi Judah the Pious (#1; Regensburg, twelfth century), and it is questionable that that Testament applies to other than Judah’s own descendants (see “Nodah b’Yehudah” II, E.H. 79), nevertheless it is so codified as a general law in the Shulchan Aruch (though not found in the Tur and the earlier codes). Aaron Meir Gordon, in his “Sha’arey Da’as” (Jerusalem, 1921, p. 95, #5), quotes Shevet Shimon (#366; Simon Sidon, Hungary, early nineteenth century) to the effect that this law applies also to husband and wife who quarreled while alive, and insulted each other so much that they became enemies. In that case the wife should not be buried near her husband, but far from his grave.

The question is: Just how far from his grave should she be buried? The law in the Shulchan Aruch, that enemies should not be buried side by side, follows the older law that the righteous should not be buried beside the wicked, and vice versa. It is clear from the long discussion on this question that, since in most of the older European cemeteries bodies were buried in a row, it would be sufficient in such cases if one grave intervened. However, with regard to a family plot it might be considered that the plot belongs to the husband, and it could be therefore argued that the wife should not be buried anywhere in his plot.

Considering the general spirit of the law that such a request has no legal validity as “the will of the dead which must be fulfilled,” and considering, too, that in general it is the husband’s duty to provide for his wife’s burial, but also considering the fact that the law provides that enemies should not be buried side by side, it would seem justified to decide that if it is no hardship for the family to provide another lot, or if the family already has more than one lot, the wife and the husband should be buried in two different lots. If, however, it would be a hardship on the family to provide another lot, the wife should be buried in the same lot as the husband, but not in a grave adjoining his.

CURR 169-175

MASS BURIALS

A chaplain is about to participate in a discussion under military auspices of the question of mass burial, and asks whether there had been any responsa written during the war on this question by our Responsa Committee. (From Chaplain Aryeh Lev, New York City.)

THERE has been no such responsum. While it is true that there were mass burials during the war, particularly when airplanes crashed on Pacific islands and left nothing there but fragments of bodies; and while, therefore, there was some discussion in our Chaplaincy Commission about them, nevertheless we concluded at that time not to write a formal responsum on the question. Our reasons were, first, because the body of a Jewish soldier killed in this way was to be considered equivalent to a mays mitsvoh, who must be buried where he fell and who, according to the law, “acquires” the land where his body was found, and that is his proper burial place. Secondly, if under war conditions any Jewish chaplain was asked to participate in such burial, he was under military orders, and in war time it was felt that he simply should obey, because even if the bodies were all of Gentile soldiers, it was part of his duty to bury them if called upon to do so.

However, now that we are under peacetime conditions, we can go into the subject more fully, especially since in the discussion panel that is about to be held, the authorities have the right to learn what our attitude is to such events, should they occur. They can very well occur since planes occasionally crash, or if, God forbid, there should be atomic hostilities and quick mass burials would then be necessary.

Tragically enough, it happens that precedents on the question of mass burial have now come up in Jewish legal literature since the war ended. The first one is described in the Responsa M’ma’amakim by Ephraim Oshry, and the other in the Responsa M’gay Ha-Haregah, by Simon Ephrati. The questions are discussed in M’ma’amakim, p. 131 ff., and in M’gay Ha-Haregah, p. 66 ff. These two discussions deal with many of the problems involved in our question, but it would be better for our purposes if we dealt with the questions systematically in accordance with the problems as they concern us. There are the following religiolegal questions involved in the type of mass burial which might occur under military circumstances.

1. Is it a religious duty, a mitzvah, to bury scattered limbs or parts of a body?

2. Does the burial of broken parts of the body constitute the official burial according to Jewish law, after which regular mourning must begin, and from the date of which Yahrzeit is fixed?

3. Is it permissible to bury the broken remains of a large number of individuals, helter-skelter in one grave?

4. Is it permissible to bury these broken remnants with broken remnants of non-Jewish soldiers? In other words, can the chaplain, in conscience, participate in such a “mixed” burial ceremony?

As to whether we are in duty bound to bury fragments of a body. There is no doubt that there is indeed such a duty incumbent upon us. Of course a distinction must be made between burial of an amputated limb of a living person and the burial of a limb of a dead person. As for the burial of a limb of a living person, there is no mandatory mitzvah of burial involved. If such a limb is buried, it is only for convenience. If, however, the limb from a living person is preserved in a bone bank, that also would be permitted. (See the earlier responsum by our Committee on this subject.) As to the custom in Talmudic times of burying the limbs so as to protect priests from defilement, (Kesubos, 20b and Rashi) note especially the responsum of Jacob Reischer, “Shevus Jaacov, ” II, 101. As for the burial of the scattered limbs of the dead, the law goes back to the later tractate Semachos II, 10, where it speaks of the dead being discovered with scattered limbs and the limbs gathered and buried. This is clarified as law in the Shulchan Aruch, Yore Deah 374, 2, in the case of a priest who may defile his priestly sanctity with the burial of a mays mitzvoh. If he finds a body with limbs missing, he must search for the missing limbs (i.e., this is part of his duty). There is, however, disagreement in the law whether very small fragments of a body (“as much as a barley seed or an olive”) must be searched for. Some authorities believe that even the smallest amount of a dead body must be buried. See, for example, Minchas Hinuch, 537. But this is an unsettled question in the law. There is no doubt that larger parts of the body must be buried. Moses Sofer, in Responsa Yore Deah, 353, says, “It makes no difference whether it be a complete body or an incomplete body; it must be buried.”

Now as to the second question, whether the burial of, let us say, a few bones of a Jewish soldier is sufficient to make it official burial, permitting the wife to be remarried, marking the time of mourning, etc. In this regard the law is clearly in the negative, and it goes back to Semachos II, 10, which states that mourning begins only if it is the head and the bulk of the body or, according to one authority, the head and the backbone. That much of the body is the minimum sufficient to provide identification, and regular mourning may then ensue. However, the bereaved family, while it cannot count on the burial of one or two scattered limbs as permitting mourning, remarriage, etc., has another ground for the permission. According to the law developed early, mostly in the Rhineland, the family can begin regular mourning over a body that is lost when they despair (mishenishyoashu) of getting the body for burial. This law is repeated frequently in the Rhineland authorities, such as Or Zeruah, Mordecai, etc. Perhaps the most accessible statement of the law is in Asher ben Yehiel’s compendium to the Talmud, to Moed Katan (56). Of course, ever since the decision by Isaac Elkanan Spector (Eyn Yitzchok, Even Hoezer, 19) the official statement of the government that the man is dead, not merely that he is missing, is acceptable in Jewish law, and the notification from the government to that effect can be equivalent to “despair” (mishenishyoashu) . Of course, if in the mass burial there is enough of the body for identification, “the head and the spine,” etc., then of course, mourning begins from the time of burial, provided it had not begun sooner. In that case, it does not need to be resumed. But if there are only a few unidentifiable limbs, then the mourning dates from the “despair” occasioned by the government notification.

Is it permitted in Jewish law to bury the bodies of a number of Jews in one grave? The Law, in general, is very strict that each body (except small children, who may be buried with their parents, Yore Deah 362:2) should have its own space; and careful regulations determine how many handbreadths there shall be between grave and grave. However, when the flesh has gone and nothing is left but bones, the great Hungarian authority, Moses Sofer, in the responsum cited, declares that these bones do not require their own separate space. Nevertheless, the question comes up whether the bones of many dead should be buried helter-skelter together, or kept as separate as possible. This again is a matter of dispute in the law. Moses Sofer and others believe that the bones should be kept apart as much as possible. But the Egyptian authority, David ben Zimri, in his Responsa II, 611, comes to the opposite decision. (Incidentally, the whole discussion comes up in Jewish law when it is necessary to transfer, en masse, bones from an old cemetery which, for example, are being taken away by the government, and moved to the new cemetery.) David ben Zimri says, “We come to the conclusion that even if the bones of many of the dead are all mixed up together, we need not be concerned with that fact since the matter (i.e., the reburial into a safe cemetery) is for the honor of the dead, and the general rule is that whatever is for their honor, is permitted.”

While Moses Sofer and others are opposed to mixing the bones of various bodies, their reasoning would apply only to circumstances in peacetime or whenever each set of bones lies separately in its own grave. But if the bones are found lying already scattered in a field, or in a bomb crater, there is no doubt that Moses Sofer would agree with David ben Zimri that the burial of them, even mixed together, is for “the honor of the dead,” and therefore permitted. In fact, it is upon this basis (the separate bones could no longer be recognized) that Ephraim Oshry buried in one common grave (kever achim) the bones of Jews which they found on funeral pyres after the Germans retreated from Kovno. It is clear, then, that it is not contrary to Jewish law under the special circumstances which concern us, to bury the various bones together.

The final question is whether a Jewish chaplain can conscientiously officiate at the burial of the bones of Jewish soldiers when they are mixed up with the bones of non- Jewish soldiers. When we consider the efforts made by Jewish communities to maintain separate Jewish cemeteries, and to bring Jewish bodies to Jewish burial in a Jewish cemetery, it would seem at first blush that to bury deliberately Jewish bodies together with Christian bodies would be contrary to the spirit of Jewish legal tradition. However, the following considerations must be borne in mind: First of all, if it is wartime, we have always followed the practice of burying the Jewish boys in the general military cemetery, content with the Star of David marker to show that it is a Jewish grave. Here, too, in the mixed burial, we would have a Star of David among the other markers. Secondly, we must consider that these Jewish bodies are “mays mitzvoh” and, according to the Law, “acquire” the place where they have fallen and are to be buried there. Therefore, the Jewish soldiers have the right to be buried in that place, whoever else is buried there.

Of course, in a joint service, the Jewish chaplain is officiating also over the burial of the bodies of Christian soldiers; but this he is in duty bound to do, not only according to his military duty, but according to the Talmudic dictum: “We sustain the poor of non-Jews, comfort their mourning, and bury their dead.” (Gittin 61a). We have a duty to bury the dead of Gentiles if there is no one else to do it. Note that Rashi says: “We engage in their (the Gentiles’) burial, if they are found slain among Jewish slain.” Of course, according to Rashi and the general understanding of this statement, we are not to bury the Gentile body alongside Jewish bodies (i.e., in the same cemetery) and if, therefore, it were possible to separate the bones, it would be preferable if that were done; but this is impossible, and therefore there is no choice.

To sum up: According to Jewish law, the fragments of a body must be buried. It is a mitzvah. If the fragments are unidentifiable, the mourning for the dead must depend upon official government announcement. The fragments of various bodies which cannot be identified may, by Jewish law, be buried all together. And finally, the fact that Christian bodies, or fragments of bodies, are buried there too, does not affect the situation materially.

CURR 145-149

MOTHER’S ASHES IN SON’S GRAVE

A mother in the United States has made provision in her will to be cremated, and that her ashes be buried in her son’s grave in Venezuela. She has communicated with the congregation in Venezuela, but they informed her that they would be willing to put a stone urn containing the ashes upon the top of the grave (or in a niche above ground cut into the tombstone). But they would not bury the ashes and would not open the grave. Are there any precedents or reasons in the Halachic literature which might convince them to accede to this mother’s request? (Asked by Rabbi Robert I. Kahn, Houston, Texas.)

THIS, of course, is not a question for guidance as to our own practice, since we already have an established custom of cutting a small space in a grave to bury ashes of a relative. The question is primarily for information as to the traditional Halacha, asked in the hope of convincing the Venezuelan congregation to grant this woman’s request.

As for the burial of the ashes of cremation, I have already discussed this in a previous letter to you. But now I will add the opinion of some Orthodox authorities permitting the burial of such ashes. The chief opinions against such burial were collected by Rabbi Lerner in his book, Chaye Olam. But, as I mentioned previously, Elijah Benamozegh, Rabbi of Leghorn, in his Ya’aney Vo-esh, said that while it is against Orthodox law to cremate, nevertheless, it is a duty to bury the ashes. Now I add the following: Enoch Ehrentreu, in Cheker Halacha, permits the burial of the ashes, as does also Simon Deutsch, in Or Ho-emes, who said also that ashes were buried in the Frankfurt cemetery at the express direction of Azriel Hildesheimer, the leader of German Orthodoxy. See also David Hoffman (Melamed L’ho-il, Yore Deah, 113) who says that while it is not obligatory to bury the ashes, it is not forbidden to do so.

Now as to the refusal of the Venezuelan congregation to open the grave: In this matter they rest on firm traditional authority but, even so, there are strong Orthodox opinions permitting the opening of graves under certain special circumstances. (A full discussion of the question is to be found in Pis-che Teshuva to Yore Deah 363:7 and in Greenwald, Kol Bo Al Avelus, p. 217 ff.) The law seems clear that graves, once they are filled up, should not be opened again {Yore Deah 363:7). This law is based primarily upon a decision in a specific case, made by Rabbi Akiba in b. Baba Bathra 154a. Some property had been sold and the seller died. Relatives claimed that the deceased was a minor, so could not legally have sold the property. They wanted to exhume the body to prove their case. Rabbi Akiba forbade this and said: “You are forbidden to show his ugliness,” (l’navlo) i.e., to shame the deceased by looking at the ugly decay of his body.

But this prohibition of Rabbi Akiba forbids only the uncovering of the body, but does not forbid any opening of the grave which would not reach or disturb the body at all. To forbid the opening of the grave altogether, an additional principle was invoked: namely, that the very disturbing of the grave brings to the consciousness of the deceased (the dead having awareness) a fear that he is being subjected to punishment (cherdas ha-din). This idea is somehow based on the statement cf the ghost of Samuel to Saul at Endor: “Why hast thou disturbed and troubled me?” (I Samuel 28:15) and on the statement of Job (3:13): “Then I shall sleep (in death) and be at peace.”

Yet, though the law in the Shulchan Aruch, thus based, seems clear and definite, nevertheless in the very same section of the Shulchan Aruch {Yore Deah 363:1) we are told that a body may be removed from its grave in order to be buried in the burial place of the family (363:1). Thus it is clear that there is at least this exception to the general prohibition. In fact, there are many more exceptions which will now be listed.

David Oppenheimer, rabbi of Prague, in his large responsum at the end of Bachrach’s Chavos Yair, cites a decision of Rabbi Gerson of Metz (the author of Avodas Ha-Gershuni) in the following case: Two brothers were buried hastily and it was remembered that they were buried without the required shrouds. May the graves be opened in order to provide the shrouds? Rabbi Gerson said that the grave of the older brother, who was over twenty-one, may not be opened because the “judgment” and, therefore, the “fear of judgment” (cherdas ha-din) only applies after the age of twenty. Therefore the younger brother, who was under this age, may have his grave opened for the shroud. Also, Jacob Reischer, rabbi of Metz (Shevus Yaacov II, 113) answered a pathetic question from the city of Brussels. Some ghouls had dug up some graves in the Jewish cemetery, stolen the shrouds and thrown the bodies on the ground. Some relatives feared (because of a dream in which the dead appeared to them) that other bodies were treated in the same way. Jacob Reischer gave permission to dig up those graves to make sure.

Another reason for some authorities permitting exhumation was in order to free a woman from the state of being an agunah. A woman suspected that it was her husband whose body was buried in another city. She said that he had carried certain proofs upon his body (in his wallet, etc.) of his identity. She wanted the body examined for this proof, so that she could be declared a widow and be free to remarry. Ezekiel Katzenellenbogen (in Kenneses Yecheschel, Even Hoezer, 46) at the very top of column “b” on page 57, permits such examination. So did Eleazar Fleckeles cited in Shivas Zion, 64. Fleckeles later changed his mind about his decision when he thought that this body was probably not of the husband and, therefore, it would be wrong to disturb the body of a stranger to no purpose. There are indeed prohibitory opinions in all these cases cited, but it is important that great Orthodox authorities permitted exhumation for certain reasons which appeared sufficient for them.

But there is a more general consideration for allowing the granting of this woman’s request. It was the well-established custom in many of the old world Jewish communities to bury one body above the other. There were great rabbis in these communities who would have objected, had there been any objection, to opening a grave for a sufficiently good reason, particularly to bury another body. Of course, it was understood that they did not dig far enough to disturb the first body. How near could they get to the first body without violating the law? See Kol Bo by Greenwald, p. 179, where he states the generally accepted rule that where bodies are buried side by side there must be a partition of six hand-breadths; where bodies are buried one above the other (and therefore the partition, being compressed, would not fall away) three hand-breadths are sufficient. It is therefore an unquestioned practice to dig into a grave to within three hand-breadths of the previous body in order to perform a second burial.

This is, perhaps, a solution of the problem which will satisfy both the congregation and the woman who is making the request. This solution is based upon a decision of one of the strictest rabbinical authorities of the past generation, the Orthodox Rabbi of Muncacz, Eliezer Shapiro (“Der Muncaczer”). In his responsa, Minchas Eliezer, IV, 4, he reports the following question: A scholar had provided in his will that his writings be buried in his grave with him. For some reason, at the time of his burial, they had neglected to carry out his request. May they now open the grave to bury the writings of this scholar with him, as he had requested? Eliezer Shapiro mentions all the classic reasons for not opening the grave, but says that the space underneath the tombstone can be considered part of the grave and yet that space may be fully excavated to provide a place for the scholar’s writings.

On the basis of opinion of this strictest of Hungarian Orthodox rabbis, the Venezuela congregation can dig a space underneath the tombstone for the urn or box of ashes. This would not be a violation of disturbing the grave and yet would be part of the grave. You might suggest this solution.