Burial

ARR 349-350

CCAR RESPONSA

American Reform Responsa

102. Preferred Burial Site

(1978)

QUESTION: One parent is buried in New York; the other is about to die in Houston. One son lives in Houston, and the second in California. Should the burial of the mother take place in Houston, where one son can from time to time visit the grave, or should the burial take place by her husband’s side in New York? (Rabbi Samuel E. Karff, Houston, Texas)

ANSWER: In this question, we have a clash of two Mitzvot: one is concerned with burial, the other with visitation of the grave in subsequent years. In the case where a family plot has been established, tradition would clearly state that the wife should be buried alongside her husband, and it is the duty of the husband to provide for the burial of his wife, and not vice versa (Shulchan Aruch, Even Ha-ezer 89; 118.18). Furthermore, our tradition sought to establish family burial sites similar to the Cave of Machpela, in which Abraham, Isaac, and Jacob, as well as most of their wives, were buried. The Talmud, in a legend, speaks of a rabbi who died, and whose friends, upon seeking to bury him, found a snake obstructing the way into the cave. The snake was told to move so that the son could be buried with his father (Talmud, Bava Metsi-a 85a). The only discussions in the halachic literature which dealt with the burial site of husband and wife in two cities treated the question of disinterment for the sake of instituting a family plot. This has been discussed by Isaac Glick (Yad Yitschak, vol. II, #249), as well as by Saul Schwadron (Maharsham, vol. III, #343). Glick decided that the husband may not be disinterred to be buried with his wife unless other members of the family were already buried in the same plot as his wife. In the case of Schwadron, it was a question of whether the wife might be disinterred. He decided positively because a number of other burials had already taken place in the husband’s plot. Both of these decisions are based on Sh.A.,Yoreh De-a #363, which listed reasons for disinterment, and among them is “burial with his fathers.” In the case cited in our question, no family plot has yet been established, and at first glance it would seem preferable to bury her in New York, as the husband is buried there. If, however, the children intend the Houston plot to become a family plot, and will later inter other members of their family there, then–even according to the tradition–this would be permissible.

The other matter which enters the discussion is the future visitation of graves. It is a mitzvah to visit graves on the Yahrzeit (Rashi to Yevamot 122a, who has cited the responsa of the Geonim; Ketav Sofer, Yoreh De-a #178). This custom was established in the days of the Geonim for scholars, but subsequently applied to all Jews: if it was possible to visit the grave it was done; if not, then the family might send someone else to visit the grave as Chatam Sofer stated. Visiting the grave on Yahrzeit is clearly a well-established custom. It does not have the same weight as statements connected with burial which are law, in this case mide-oraita,yet for us this custom may be at least as important as the law. It will be comforting to the family to be able to visit the grave. This reason, and the fact that the family intends the Houston plot to become the family plot, would lead me to decide in favor of burial in Houston.

Walter Jacob

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 154-155

CCAR RESPONSA

Contemporary American Reform Responsa

94. Burial of a Woman Twice

Married

QUESTION: A woman was married to her first husband for

twenty-three years, and had children by him. She subsequently became widowed, moved across

the country, and now has been married to her second husband for more than twenty years.

When she dies, should she be buried together with her first or her second husband? (L. B.,

Pittsburgh., PA)ANSWER: There is custom (minhag), but no clear law on

this matter. The general custom is that an individual is buried with that spouse with whom she

had children, especially if that has been requested by the children (J. Greenwald, Kol Bo Al

Avelut, p. 188 f). Some traditional authorities have felt that some special ties with that

spouse continue even after her death. For example, according to them, it would be her duty to

commemorate the yahrzeit, although in a fashion which will not sadden the second

spouse (W. Leiter, Bet David, #134). On the other hand, the Hungarian Moses Sofer

(Hatam Sofer Yoreh Deah #55) has stated that no further relationship exists with the first

husband and there is no need to commemorate the yahrzeit (see also M. K. 21b and

Rashi; Shulhan Arukh Yoreh Deah 385.2; Menuhat Mosheh #114). If

there are no children by either marriage, then generally burial is recommended with her first

husband, as in that marriage she became “one flesh” with her husband (Lev. 21.2; Yeb. 55b;

(Shulhan Arukh Yoreh Deah 300). In most discussions of this problem, it is assumed that

the graves are in the same city or at least in close proximity. Here the two burial sites are quite

distant from each other. Greenwald, under those circumstances, feels that burial should take

place in the city in which she died and has lived for the last years (J. Greenwald, op. cit.,

p. 188). We would add that in our highly mobile society, it is important that burial take place

close to some relatives who may be able to visit the grave (W. Jacob, American Reform

Responsa #102). Tradition, in this instance, gives preference to burial with the first

husband, but it is clear that other options may be followed. This woman who would like to plan in

advance should consult her children, and be buried wherever her grave can be visited by some

surviving family members.March 1984

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 288-289

CCAR RESPONSA

New American Reform Responsa

177. Vertical Burial

QUESTION: My father has expressed a desire to be burial vertically rather than horizontally. We have discussed this a number of times but he insists and I would like to carry out his wishes if that is in keeping with Jewish practices (Norma Weigel, Berkeley CA).ANSWER: Jewish tradition assumes that burial will be horizontal. This is true both for burial in the ground which is our customary practice and the ancient burial in caves as we find at Bet Shan and in other sites in Israel. My search through the halakhic literature has not come across any statements about vertical burial. It is unlikely that this would have been discussed in an earlier age, as horizontal burial is much easier and requires less digging into the ground. Vertical burial would demand a considerable excavation. That is readily possible for us with our mechanized equipment, but as my cemetery superintendent has told me may cause practical problems as well with neighboring graves which might cave in. Furthermore, the coffin because of its construction may collapse if placed vertically. As long as there is no damage to nearby graves or other technical difficulty, the vertical burial which this individual has requested should be considered appropriate. The grave marker should be placed in the usual position and nothing connected with the grave need indicate that this burial was somewhat different.August 1991

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 152-153

CCAR RESPONSA

Contemporary American Reform Responsa

92. Burial of a Young Child

QUESTION: A-

four-year-old-child, daughter of a Jewish father and a Gentile mother, died, and they wish her

buried in the congregational cemetery, which restricts burial to Jews. The child was named in the

synagogue, and it was the clear intent of the parents to raise this girl and all subsequent children

as Jews. Both parents had brought the little girl to some pre-school holiday activities and to

various services intended for young children. Is this child to be considered Jewish? Would a

somewhat older child not enrolled in our school be considered Jewish? (D. F., Baltimore,

MD)ANSWER: We base our decision on the resolution of the Central Conference of

American Rabbis, March, 1983, and on the responsum “Patrilineal and Matrilineal Descent”

(November 1983). The Resolution reads: “The Central Conference of American

Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent.

This presumption of the Jewish status of the offspring of any mixed marriage is to be established

through appropriate and timely public and formal acts of identification with the Jewish faith and

people. The performance of these mitzvot serves to commit those who participate in

them, both parents and child, to Jewish life. “Depending on circumstances,

mitzvot leading toward a positive and exclusive Jewish identity will include entry into the

covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and

Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity,

other public acts or declarations may be added or substituted after consultation with their

rabbi.” The Resolution indicates that acts of identification after birth are necessary to

establish the Jewishness of the individual involved. In this instance, all acts of identification

appropriate to the age have been observed, and the child has had no identification or affiliation

with any Christian observances. We, therefore, consider this youngster as Jewish, and she is to

be treated as a Jew in every way. In other words, although the cemetery has some restrictions on

the burial of non-Jews, they would not apply to this youngster, who may be buried as any other

Jew.October 1983

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CARR 163-164

CCAR RESPONSA

Contemporary American Reform Responsa

102. Burial of Ashes in a Mausoleum

QUESTION: What does halakhah say about the burial of a body or ashes in a mausoleum? (Rabbi I. Neuman, Champaign, IL)ANSWER: In this instance we are not concerned with the question of cremation but with burial of either a body or ashes in a mausoleum. Cremation itself has been discussed elsewhere (W. Jacob, American Reform Responsa #100). There is good precedent for burying the dead in a mausoleum and not in direct contact with the soil, as in the cave of Makhpelah (Gen. 23.8), chosen by Abraham for his wife, Sarah. Subsequently, some Israelite kings were buried in cave tombs, as that traditionally associated with David. Later, in Tanaitic times, cave tombs became common and have been mentioned in the Mishnah (B. B. 5.8; Erub. 5.1; Shek. 2.5). Numerous such tombs have been discovered and described at great length (see particularly E. R. Goodenough, Jewish Symbols in the Greco-Roman Period). The Talmud also mentioned a built up tomb (kever-binyan – see San. 47b), which may have been a mausoleum. In later periods, burial directly in the soil was preferred. This was influenced by the thought that the decay of the body acted as atonement for sin (M. San 6.6, 46b; Tur; Shulhan Arukh Yoreh Deah 362). In order to speed the decomposition, coffins were made of loose boards so that the body would be in close contact with the soil (Shulhan Arukh Yoreh Deah 362). If that was not possible, then some earth was deposited within the coffin. There has been considerable discussion among Orthodox authorities whether it was permissible to bury in a closed coffin altogether (J. Greenwald, Kol Bo Al Avelut, pp. 183 ff). Isaac Elhanan Spector of Kovno was the only authority who permitted a temporary interment in a mausoleum during a time when it was too dangerous to bury the body in the ground (Ein Yitzoq Yoreh Deah #33). Mosheh Feinstein rejected burial in a mausoleum completely as there would be no contact of the body with soil (Igrot Mosheh Yoreh Deah #143). We conclude that at the present time tradition emphasizes burial in the ground. However, at an earlier time, burial in a mausoleum or cave was certainly permissible. Furthermore, traditional Judaism has changed its attitude toward the utilization of completely closed coffins and now permits them. So, direct contact with the soil seems less important. There is nothing in Reform Judaism which would preclude burial in a mausoleum.December 1981

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 281-282

CCAR RESPONSA

New American Reform Responsa

170. The Burial of Human Organs

QUESTION: Is it necessary to bury organs which have been replaced through a transplant operation? How would Jewish tradition dispose of these portions of the human body? (Rabbi Norman Cohen, Hopkins MN)ANSWER: Organ transplants are a very modern medical remedy. However, the problems of disposal of amputated limbs is ancient. Traditionally they were interred and that was required for two reasons. It was considered important to show respect for all parts of the human body and so limbs could not simply be discarded. In addition the ritual uncleanliness, which a corpse or an amputated limb caused priests (kohanim), presented an important consideration. Any priest who came in contact with a dead body or a portion of such a body would be considered defiled (Ket 20b; Yad Hil Tumat Okhlin 16.8; Shevut Yaaqov II #10). Limbs were buried without formal ritual and simply interred in a portion of the cemetery (Tur Yoreh Deah 266; Shulhan Arukh Yoreh Deah 266; Moses Feinstein Igrot Mosheh Yoreh Deah I 231). We would suggest that major organs be similarly buried or treated in some other respectful manner as incineration. We, of course, face not only the disposition of major organs as heart, kidney, liver, etc., but also with the disposition of innumerable smaller fragments as pieces of bone, arteries, veins, skin, etc. It is the normal procedure of hospitals to dispose of these fragments in a sanitary and safe manner, frequently through incineration at high temperatures. This reduces the segments to virtually nothing and assures no misuse of these fragments. We would agree that this method of disposition is appropriate and does not dishonor these fragments of the human body nor does it present other problems to us.May 1988

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CARR 169

CCAR RESPONSA

Contemporary American Reform Responsa

107. Burial of Human Skin from Holocaust Victim

QUESTION: The Congregation recently acquired an antique lamp, and it turns out that the lampshade is made of human skin which has survived from the Nazi period. Should the lampshade be buried? May it be displayed in a museum? What should be done with it? (Rabbi E. Silver, Salt Lake City, UT)ANSWER: The lampshade of which you write has survived from one of the most tragic periods of our history. It should not be displayed but treated reverently and buried. We would urge burial of this small portion of a body as a sign of reverence and respect for the victims of the Holocaust. Tradition would suggest burial for this reason and as a precaution against ritual uncleanliness for kohanim (Yad, Tumat Met 16.8; Jacob Reisher, Shevut Yaaqov II, #10). We are primarily concerned with the honor of those who were murdered during the Nazi period. As this may be the only portion of that unfortunate individual’s body which has survived, we should bury it with the simplest of rituals. We do not know whether this was a Jew or a non-Jew, but that would make no difference, as we have long ago been mandated to bury the dead of our neighbors (Shulhan Arukh Yoreh Deah 151.12). The lampshade should, therefore, be buried in the congregation’s cemetery.January 1984

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 320-321

CCAR RESPONSA

American Reform Responsa

96. Burial of Jews in Section of General Cemetery

(Vol. XXVII, 1917, p. 88)

The following answers were given to a colleague who submitted a series of questions in regard to burial rites.

(a) That the Jews, whether Orthodox or liberal, may bury their dead in a section of a cemetery in which the greater part is devoted to the burial of non-Jews is evidenced by the story of the Cave of Machpelah which, according to Genesis 23, formed part of the burial place of the Hittites. It was separated, however, by a field with its trees, as verse 17 shows. And it seems that the Jews in the Middle Ages loved to plant trees in their cemeteries, so that we find them called by Christian writers “Hortus Judaeorum,” the “Garden of the Jews” (see Abrahams, Jewish Life in the Middle Ages,p. 77).

(b) and (c) In Biblical times the better classes had their family sepulchres (see, among others, Gen. 49:31; I Kings 13:22); and the burial place of the fathers endeared the desolate cities to the Jews (Neh. 2:3). Only the common people seemed to have had a common burial place (II Kings 23:6; Jer. 26:23; compare the Potter’s Field in Matt. 27:7).

Later on, the acquisition of a cemetery became one of the first obligations of a Jewish congregation, as may be learned from the significant words of Ruth: “Where thou diest, will I die, and there will I be buried” (Ruth 1:17), and to visit the father’s grave on special occasions was one of the religious practices of the Jew, prayers being offered there. Of course, the Jewish cemetery was always to be distinguished from the non-Jewish ones–intrinsically, as it was to be treated with special marks of reverence due to the sacred character of the surroundings of the dead; and externally, as none of the signs and symbols of other creeds could have a place there. Thus, naturally, a separate place was required for the Jewish cemetery. In fact, by a Talmudic law codified in Yoreh De-a 362.5, and based on II Kings 13:21 (see Sanh. 47a), the burial of a wicked person alongside of a righteous one is also regarded as wrong. But no law exists in our Rabbinic codes requiring either walls or fences to separate the Jewish cemetery from another one. The walls or fences were, however, found necessary for the protection of the graves against violation by the mobs, especially frequent during the Dark Ages. Consequently, any form of separation, whether by granite posts or by considerably larger pathways distinguishing the Jewish section from the Christian ones, is sufficient.

K. Kohler and Jacob Z. Lauterbach

See also:

S.B. Freehof, “Communal Mausoleums,” Reform Responsa, pp. 158ff.

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 167-168

CCAR RESPONSA

Contemporary American Reform Responsa

106. Burial of Miscarriages, Stillborn Children and Infants

QUESTION: What is the traditional approach to burial for miscarriages, still-born children and infants who die shortly after birth? What burial procedure and mourning customs are appropriate in the Reform Movement in this matter? (Rabbi R. J. Orkand, Westport, CT)ANSWER: Jewish law is quite clear on the status of an infant who dies before reaching the age of thirty days. After that time, formal burial is required; before that time it is not. The child who dies before that time is considered a nefel and for such a child (strictly speaking considered stillborn if he does not survive thirty days), no burial and no mourning rites are required (Ket. 20b; Shab. 135b; Evel Rabati I; Shulhan Arukh Yoreh Deah 266; Ettlinger, Binyan Zion #133; Jacob Reischer, Shevut Yaaqov Vol. II, #10). A further statement by the Shulhan Arukh gives us some idea of the attitude to the death of children in our tradition. The question asked whether a eulogy (hesped) can be given for a young child, and the conclusion is for the children of the poor it may be done from age of five and onward, and for the children of the rich, six and onward (M. K. 24b; Shulhan Arukh 344.4). All of this indicates that relatively little was made of infant deaths or abortions. They occurred frequently and the communities would have been in a constant state of mourning if rites had been required. A nefel was, therefore, treated in the same way as amputated limbs, and buried in the general section of the cemetery (Ket. 20.b). This was done to avoid ritual uncleanliness for the priests (M. Edut 6.3; Yad Hil. Tumat Hamet 2.3; Pahad Yitzhaq, Ever). Strictly speaking, it was not necessary to bury amputated limbs (Jacob Reischer, Shevut Yaaqov II, #10; Ezekiel Landau, Noda Biyehudah II, Shulhan Arukh Yoreh Deah #209; J. Greenwald Kol Bo Al Avelut, p. 184). In our time matters have, however, changed and most families have very few children, so all the events in a child’s life have become significant and magnified. That, of course, includes the tragic death of a young child, a still-birth, or miscarriage. We would, therefore, suggest that there be a simple burial of a still-born infant or a child who dies at an early age. This will provide a way for the family to overcome its grief. A miscarriage may, however, be disposed of by the hospital or clinic in accordance with its usual procedures. No burial is necessary but it is also not prohibited; we would suggest it for infants and possibly for still-births.October 1983

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ARR 323-331

CCAR RESPONSA

American Reform Responsa

98. Burial of non- Jewish Wives in Jewish Cemeteries

(Vol. XXIV, 1914, p. 154)

Only two days ago a case was reported to your Committee where a non-Jewish woman, legally married to a member of the Jewish community, died, and the question was raised, whether she might be buried in a Jewish cemetery. During my ministry in New York City I had many such cases, and I always decided in the affirmative. I took the stand that, unlike the Catholics, our cemeteries are not as a whole consecrated ground,in the sense that those not of the Jewish faith are excluded from them. Only the spot where the body is interred becomes sacred thereby. If, then, a Jew owns a lot in a cemetery, his right to bury his wife there is–from the Jewish standpoint–indisputable, unless the congregation or association which sells the lot has made stipulations or conditions forbidding the burial of non-Jews in the cemetery. Of course, it is understood that a non-Jewish service or symbols of another faith are prohibited.

I have here stated only my individual opinion. I would repeat my urgent request of last year, that the members of the Conference consult with this Committee in all difficult cases, in order that in the future it may become the clearinghouse for all important ritual and theological questions.

(Vol. XXVI, 1916, pp. 133-134)

Your communication asking for my opinion concerning the burial in a Jewish cemetery of non-Jewish wives or husbands married to Jews and their children was duly received yesterday, and in answer thereto I would refer you to several reports of mine as Chairman of the ResponsaCommittee of the Central Conference of American Rabbis. I have always in my practice taken the stand that, while mixed marriages should not be sanctioned by the rabbi, the civil law which declares them as valid must be recognized by us to the extent that the non-Jewish wife or husband should be entitled to the right of being buried alongside the Jewish husband or wife on the plot owned by the one or the other in the Jewish cemetery. Still greater claim have their children to a regular Jewish burial, whether they have been brought up as Jews or not. Accordingly, I would have your cemetery rules changed in the sense stated.

Quite different is my view concerning the Jew who is–on account of his marriage to a non-Jewish person– to be interred in a non-Jewish cemetery. By this very fact evidence seems to be given in favor of his non-Jewish allegiance, and the rabbi has no business to officiate at his funeral in a non-Jewish cemetery.

Whether the congregational bylaws–reading that members who contract a forbidden marriage forfeit their membership, and that no person married to a non-Jew may be a member of the congregation–should be changed, is, in my opinion, an altogether different question. It seems to me that the law should stand. Forbidden marriages have disastrous results, especially in regard to the offspring. On the other hand, the second sentence simply aims at preventing mixed marriages in the congregation, but does not imply that they entail forfeiture of membership when concluded before the affiliation to the congregation. Self-preservation dictates the retention of the bylaw.

K. Kohler and Jacob Z. Lauterbach

(Vol. XXIX, 1919, pp. 77-78)

On January 2, I was asked for my opinion, and, at the same time, for the Jewish law on the following case: About a year ago a brother of a member of the congregation died in a distant town, and was buried on the latter’s lot. Afterwards his wife died, and her wish was to be buried next to her husband. She being a Christian, the Board of Trustees wants to do nothing contrary to Jewish law and custom, and, therefore, waits for a decision, as the brother-in-law is willing to have her buried on his lot.

I answered as follows: There is no law forbidding a non-Jew to be buried in a Jewish cemetery. While there are congregations whose constitution expressly prohibits non-Jews (respectively, non-Jewish wives or husbands) to be buried in their cemeteries, such restrictions were undoubtedly made with the view of preventing mixed marriages in the congregation. At the same time, it cannot be denied that in case a Jew (whether a member of the congregation or not) has married–contrary to the Jewish law–a non-Jewish woman, she, as his legally married wife, has a just claim to being buried alongside of her husband on the plot owned by him or given him for burial by his brother. As rabbi of Temple Beth El in New York, I have frequently given this decision, and this view has been fully endorsed by my congregation.

In further explanation of this opinion I wish to say that the Talmudic rule, based on ancient practice, is that the wicked should not be buried next to the righteous, and therefore executed criminals had a special place assigned to them for burial (Sanh. 46-47a). But it is not likely that a non-Jew should ever have been buried in a Jewish cemetery, unless perhaps in the case of an unrecognized body found unburied, a Met Mitzvah, which humanitarian law (to judge from Philo, M. II, 629) applies to non-Jews as well.¹

Another point for consideration is that we have no consecrated ground which would exclude non-Jews. Each plot is consecrated–asur bahana-a–by the body there. Hence, the owner of the plot ought to have full disposal of the same. It is his family plot.

K. Kohler and Jacob Z. Lauderbach

(Vol. XXIX, 1919, pp. 80-85)

The following question was submitted to me by a southern congregation:

About a year ago a brother of one of the members of our congregation died in a distant town, and his remains were brought to this city and buried on the lot of this member of our congregation. The wife of the deceased has died, and it was her wish that her remains be buried next to her husband. She being a Christian, the Board of Trustees wants to do nothing contrary to Jewish law and custom, and desires higher authority. The member of our congregation who owns the lot is willing to bury the Christian wife of his brother on the lot. I want to make it plain that the brother of the member of our congregation who is now buried on the lot was not a member of our congregation, and did not own a lot in our cemetery. In addition to your opinion, we would like to have the Jewish law on the subject also.

The following is my reply:

My opinion is of no consequence in the matter; nor is it germane to the question proposed whether the man whose Christian wife is to be buried in the Jewish cemetery was a member of the congregation or not. Such a question is to be decided on the ground of financial considerations and congregational policy, and would apply to Jews and non-Jews alike. The only point under consideration is, what Jewish law and congregational practice–the latter as precedent–furnish as arguments.

Bible

The most ancient records prove that it was a sacred duty for the Jew to be buried with members of his family in a burial ground exclusively owned by him and reserved exclusively for the members of his family. Abraham buys the cave of Machpelah, declining the offer of the Hittites to use “the choicest of their sepulchres” for the burial of Sarah, because he wishes to have a burial place of his own as unlimited holding (Achuzat Kever) (Gen. 23:4,6,20). Jacob solemnly adjures his son Joseph to go to considerable trouble to transport his body to Canaan so that he may sleep with his fathers (Gen. 47:30). It is certainly told with designed emphasis that this was Jacob’s dying wish (ibid., 50:25), which–as is twice emphatically related–was carried out (Ex. 13:19; Joshua 24:32). On this occasion we are also told that Joshua and the High Priest Eleazar were buried “on their inheritance,” which is synonymous with Abraham’s Achuzat Kever (Joshua 24:30,33).

It was evidently the custom of wealthy and prominent men to provide during their lifetime an artistically constructed burial place, a mausoleum, usually hewn in the rocks, as we learn from the denunciation of Isaiah of Shevna, the king’s chancellor, who “has hewed out a sepulchre on high” (Isa. 22:16). The same is told in the New Testament (Matthew 27:60) of Joseph of Arimathea, in whose tomb Jesus was buried. Existing monuments in Palestine bear testimony to the correctness of these reports. In keeping with these reports of the sacredness of family tombs is the consolation given by Jeremiah (34:5) to the exiled and blinded King Zedekiah, that he shall be honored by the ceremonies like those performed in honor of “his fathers, the former kings” in their crematories, an obscure passage, which, however, must refer to the practice of burning valuable articles in the possession of the deceased (Avoda Zara iia). All these passages prove that in Biblical times the burial places were in the private possession of the families, destined for the members of the family exclusively, and it is impossible to decide whether non-Jewish members of the family were also laid there to rest. At any rate, the community as such could have had no power in the matter.

Talmud

The only passage found in the Talmud which has a bearing on the subject (Bavli, Gittin 61a) reads: “We shall bury the dead of the non-Jews with the dead of the Jews for the sake of peace” (meaning, probably, for the sake of maintaining amicable relations with our neighbors, but it may also mean, on the ground of humanitarian principles; see Yevamot 15a). The question is whether the word im, translated as “with,” means “just as” or “by the side of.” Rashi, the classic commentator of the Talmud, decides in favor of the former view, and he is supported by another passage (Sanhedrin 47a): “We shall not bury a wicked man by the side of a righteous man,” in which case the word etsel is used. Rashi also says: “We shall bury the non-Jews not in the cemetery of the Jews, but we shall attend to their burial when bodies of non-Jews are found slain by the side of the bodies of Jews.” The view of Rashi is supported by the fact that in parallel texts (Tosefta, Gittin 5.5, ed. Zuckermandel, p. 328; Yer. Gittin 47c), the law merely reads: “We shall bury the bodies of non-Jews,” omitting the dubious phrase “with those of Jews.” In this form the law has been recorded in the codes (Yoreh De-a 367.1). R. Nissim of Gerona (14th century) opposes Rashi in one respect, extending the duty to assist in the burial of non-Jews to all cases, and not restricting it to a case when Jews and non-Jews are found slain side by side, but even he decides against burying them in a Jewish cemetery (R. Nissim, Novellae, Gittin, p. 34d, ed. Prague, 1810; see also Beit Yosef, Yoreh De-a 367). The same view may be supposed to be that of the Tosafot (Chullin 7b), though it is not expressly stated. The attempt of Rabbi M. Loewy of Temesvar to read such a permission into Maimonides’ slight mention of the duty to take part in the burial of non-Jews (Hilchot Evel 14.2; Hilchot Melaehim 10.2) is entirely arbitrary (Neuzeit, 1884, p. 43). The only legal authority who clearly permits the burial of non-Jews in a Jewish cemetery, though in a separate plot, is Joel Sirkes (Bayit Chadash, Yoreh De-a 151). This author, who died as Rabbi of Cracow in 1640, witnessed the frequent butcheries in Poland, caused by rebellious and foreign invasions, and ruled probably from actual occurrences, when bodies of murdered Jews and non-Jews were found heaped up in the same place. The following case is only remotely connected with the question, but deserves a place here, because Moses Sofer, who rendered the decision, is a relatively modern author (1762-1839) of high standing in the Orthodox world. The case submitted to him was that of a Jewish soldier who died in a military hospital and upon whose body a crucifix was found, so that it seemed almost certain that he had at one time become a convert to Christianity. Moses Sofer decided, nevertheless, that the body should be buried in the Jewish cemetery (Chatam Sofer, Yoreh De-a 341).

Precedents

A Venetian Christian who died in Avlona of the plague in 1515, requested on his deathbed that he be buried in a Jewish cemetery, because he feared that, being a Roman Catholic, the Greek Catholic Christians of the place would throw his body to the beasts. His request was granted (Vesillo Israelitico, 1888, pp. 190191). Stephen de Werbocz, ex-Palatine of Hungary, who died in Buda (Ofen) in 1541, was buried in the Jewish cemetery. The reason is not clear, but was probably his conversion to Islam (Busch, Jahrbuch V, 83). Clearer is the case of a Mohammedan who died in Czernowitz, Bukowina, in 1869. He was buried in the Jewish cemetery because neither the Greeks nor the Roman Catholics would bury him in their cemeteries (Am. Isr., June 11, 1908). Similar was the case of an unattached Catholic who was buried in the Jewish cemetery of Prague, which is governed by the strictly conservative Chevra Kadisha of this historic community. The man had left the Catholic Church because that was the only way in which the Austrian law allowed him to marry a Jewess (Allgemeine Zeitung des Judentums, 1871, p. 720). The congregation of Orgjejew, Besarabia, granted to a Mohammedan a burial in its cemetery, but yielded to the rabbi who vetoed its resolution because the body was buried beyond the fence (Hasman, Hebrew Daily, 1909, no. 208). Neil Primrose, the son of Lord Roseberry and of Hannah de Rothschild, who was killed in action in Palestine as a member of the Jewish Legion, was buried in the Jewish cemetery of Ramleh, although he was a professing Christian (Jewish Courier, Chicago, Dec. 2, 1917). Similar is the case of Moses S. Wile, the son of a Jewish father and a Christian mother, and raised as a Christian, who was buried in a Jewish cemetery (Am. Isr., March 4, 1904). According to Jewish law, Neil Primrose would be regarded as a Jew, and Moses Wile as a non-Jew. The congregation of Wittenburg, Mecklenburg, buried in its cemetery a Protestant whose family objected when their Christian pastor ruled that the corpse be buried in a corner of the Protestant cemetery but refused to sell an adjoining grave to the widow (Oest. Wochenschrift, 1913, p. 504). A woman in Darmstadt who had converted to Christianity, but had expressed the wish to be buried in a Jewish cemetery, was granted this desire on the ground that her wish signified a return to Judaism (Allg. Zeitg. d. Judentums, 1889, p. 361). A Jew of Ancona, who had declared himself a Unitarian, though he never formally affiliated with that church, was refused burial in the Jewish cemetery of that city (Educatore Israelita 20, 1872, pp. 145-146). The Orthodox Chief Rabbi of Amsterdam, Joseph H. Duenner, refused to bury the child of a mixed marriage in the Jewish cemetery, although the mother, a Christian by birth, had converted to Judaism, and the child was circumcised. Rabbi Duenner did not recognize the conversion performed by Rabbi Rahmer of Magdeburg, a liberal, as valid, and therefore considered the child, as born of a Christian mother, a non-Jew (Der Israelit, 1883, p. 322). The Rabbinate of London rendered the same decision in an identical case (Allg. Zeitg. des Judentums, 1884, p. 302). The congregation of Hamburg took in a similar case a lenient view, in spite of the strong protest of the Orthodox element (ibid., 1865, p. 289). Rabbi A. Da Fano of Milan adopted a compromise, allowing such a burial, but insisting that the corpse be circumcised (Vessillo Isr.,1892, p. 384)

Similar cases in America are reported from Memphis, Tennessee, where such a child, after some opposition, was granted burial in the Jewish cemetery (Am. Isr., Nov. 3, 1876); while in Grand Rapids, Michigan, the rabbi refused burial. I.M. Wise decided against this attitude, declaring that while the Talmud does not consider the child a Jew, he is so in our eyes, because we consider civil marriage as legal (ibid., Sept. 4, 1874). In neither of the last two cases is it stated whether the child was a male and whether circumcision had been performed. Rabbi B. Schick of Temesvar, Hungary, rendered a negative decision in a similar case, and wrote a pamphlet concerning it (B. Schick, Notgedrungene Bemerkungen zum Jahresbericht der Temesvar Chewra Kadischa, 1903, Temesvar, 1904; see Der Israelit, 1904, p. 832).

Jews Buried in Non-Jewish Cemeteries

The completeness of the argument demands a discussion of the opposite case, namely, the burial of Jews in non-Jewish cemeteries. Sentiment and practice are usually against it. In Rendsburg-Schleswig, the Jewish congregation protested against it (Allg. Zeitg. des Judentums, 1872, p. 49). In Nuremberg, which had in those days no Jewish cemetery, the pastor protested (Ziemlich, Geschichte der Juden in Nuremberg, p. 8). In M. Csaete, Hungary, the Jews, though forming an Orthodox congregation, use a cemetery in common with the Christians (Der Israelit, 1912, no. 8). Marcus Levy, Mayor of Aurora, Indiana, was buried in the local cemetery, and Isaac M. Wise approved of it indirectly, lecturing in Aurora for the benefit of a monument to be erected to the deceased (Israelite, Feb. 20, 1873). The “Oberrat” of Baden, on the other hand, refused the offer of the city to have the Jewish soldiers, killed in the war, buried in a special plot of the communal cemetery together with their Christian comrades (Allg. Zeitg. des Judentums,1914, no. 41). Rev. Isaac Leeser of Philadelphia strongly condemned the action of Rev. Jacob de Solla, who had officiated at the funeral of a Jew in a non-denominational cemetery, and obtained an opinion to this effect from Chief Rabbis Abraham B. Piperno of Leghorn and Nathan Adler of London. He admitted, however, that he had been guilty of the same offense before, giving as an excuse that it was done before a religious authority had rendered a negative decision (Occident XXVI, 1863, pp. 181-187, 266-272).

Cases Analogous to the Proposed Question

Rabbi B. Illowy gave a favorable opinion in the case of a woman born a Christian who had married a Jew, on the grounds that she had converted, when Orthodox extremists in Nashville, Tennessee, objected even to this (Occident XIV, 1856, p. 84-88). Rabbi Samfield of Memphis, Tennessee, rendered a decision favorable to the burial of non-Jewish members of a family in Jewish family lots (Am. Isr., Feb. 5, 1875). The Orthodox rabbi of Breslau, F. Rosenthal, once permitted the remains of a cremated corpse of the Christian wife to be buried with her Jewish husband, because these remains were not a corpse (Jued. Presse, 1911, p. 465). He was still more liberal when he permitted a baptized Jew to be buried in this cemetery upon the request of his wife, who had remained a Jewess (Deutsche Isr. Zeitg., 1913, no. 40). The congregations of Berlin (1883), of Leipzig (1884), and of Dresden (1897) passed resolutions permitting the non-Jewish parties in a mixed marriage to be buried in the Jewish cemetery (Allg. Z. d. J., 1884, p. 10; 1885, p. 319; 1897, no. 26). The Rabbinate of Leghorn rendered an adverse opinion, which, however, was not respected by the congregation (Vessillo Isr.,1892, pp. 321-322).

Conclusion

I. The Bible gives no clear evidence by which the question can be decided, though–speaking of family graves–its testimony would be rather negative.

II. The Talmudic writings do not decide the case clearly, but glossarists and codifiers derive from the Talmuda negative view, with the exception of one authority who limits the burial of non-Jews in Jewish cemeteries to emergency cases, such as battles and epidemics.

III. The practice in modern congregations is divided on this point as on others–the Orthodox congregations taking a negative view, and the liberal congregations an affirmative view.

IV. The question of congregational policy–and its relation to the danger of encouraging intermarriage or religious indifference–has to be decided on the ground of local conditions and does not lie within the line of theological argument.

G. Deutsch

(Vol. XLVI, 1936, pp. 124-126)

The member of the Conference who submitted this inquiry dealt with the case of a non-Jewish woman who is an active member of a Christian church. He took his stand upon the responsum of the late Dr. Kohler (Yearbook XXVI, 1916, p. 133; cited in the Rabbi’s Manual, 1928, p. 187), according to which such burial was permissible. He inquired, however, whether her Christian minister “was to be permitted to officiate at her grave in the Jewish cemetery,” or whether it should be stipulated “that she may be buried alongside her Jewish husband only if the commitment service is conducted by a rabbi.”

Further information showed that the Jewish husband–since his marriage 32 years prior to his demise– “was never a member of the Temple and rarely attended its services; only a few times did he come to the services on the High Holy Days.” During this period his wife continued (and still does so) to be an active member of her church, but on the other hand–let it be stated to her credit–she tried to persuade her husband “to preserve his attachment to the Jewish people.” And now, for sentimental reasons, she would like to be permitted to be buried in due course near her husband.

ANSWER: Dr. Kohler in his above-mentioned responsum has not at all discussed the data pertaining to Jewish law and custom. He only indicated his personal stand that “while mixed marriages should not be sanctioned by the rabbi, the civil law, which declares them as valid, must be recognized by us to that extent that the non-Jewish wife or husband should be entitled to the right of being buried alongside the Jewish husband or wife, on the plot owned by the one or the other in the Jewish cemetery.” This argument is indeed not very logical, because the civil marriage has nothing to do with the Jewish cemetery, which is a part of the Jewish religious organization.The latter can so formulate its rules and regulations as not to permit such a burial, although fully recognizing the validity of a mixed marriage with regard to all marital affairs.

In this responsum we further read that if a Jew wants to be buried in a non-Jewish cemetery (say next to his Christian wife), “by this very fact evidence seems to be given in favor of his non-Jewish allegiance and the rabbi has no business to officiate at his funeral in a non-Jewish cemetery.” Here the contradiction becomes evident by the realization that a cemetery is a religious place after all. Why, then, should the previous case be different? Either or: either it is assumed that the cemetery is non-religious ground, then logically a Jewish husband of a Gentile wife could be buried in a Christian cemetery even with the rabbi officiating; or, if the argument is that the cemetery is the religious propertyof a given denomination, then a non-Jewish wife should not be buried in a Jewish cemetery.

To discuss here at length the Jewish traditional data, would not be feasible. (See further another decision by Dr. Kohler, Yearbook XXIX, 1919, pp. 77-78, and Dr. Deutsch’s responsum, ibid., pp. 80-85; the latter discusses more fully the available data, but the matter needs still further elucidation.) But in the above case, would it be proper to bury a woman, who is “an active member of a Christian church” in a Jewish cemetery? Even according to Dr. Kohler, is this latter fact not evidence enough for her “non-Jewish allegiance”?Such a person, whose religious convictions should be respected, could rightly claim that her tombstone should have the symbol of her church, viz., the Cross. There is further involved the point of her clergyman officiating at the funeral. Being an active member of her church, she has a perfect right then to have her last rites performed by the accredited representative of her religion. All this tends therefore to the positive conclusion that her last resting place should not be in the Jewish cemetery, but in the burial ground of her church.

The rabbi should therefore advise the woman concerned that in view of her attachment to her religion– which should be fully respected–arrangements for her burial should be made with the authorities of her church. It is not a pleasant task for the rabbi to do so, considering the natural marital sentiments involved; however, in order to obviate an effacement of the religious boundaries, one should take a clear stand in such matters. In the long run, courage and honesty prevail over weak compromises.

Jacob Mann and Majority of Committee

(Vol. XLVI, 1936, pp. 127-129)

The question of burial of a non-Jewish wife beside her Jewish husband in a Jewish cemetery, as submitted by the chairman of the Committee on Responsa, has been decided in the affirmative by the late Dr. Kohler (Yearbook, vol. 26, p. 133). But now the question is proposed, “If burial is to be permitted, shall it be stipulated that a rabbi should be required to read the commitment service?”

Prof. Mann emphatically opposes Dr. Kohler’s decision to permit burial of the non-Jewish wife in the Jewish cemetery, because Dr. Kohler adduces “no traditional authorities on Jewish law and custom” in support of his opinion, which therefore must be considered as purely personal sentiment. Moreover, Dr. Mann alleges that Dr. Kohler’s reason in permitting the burial of non-Jews in the Jewish cemetery on the ground that we should respect the civil law which legalizes mixed marriages, “is indeed not a very logical argument.” Dr. Mann emphatically avers that “courage and honesty should prevail over weak compromises,” and insists that burial of the non-Jewish wife should be denied in a Jewish cemetery. However, the argument that it is simply a “personal stand without any data pertaining to Jewish law and custom” may be made against Dr. Mann himself; for neither does he adduce any “Jewish traditional data” in support of his decision, which therefore makes it merely personal.

There are ample data showing the following clearly and plainly.

A. It is proper to support the destitute…to utter lamentation (funeral rites) and bury non-Jewish dead with (im) Jewish dead: “Maspidim vekoverin metei Akum im metei Yisra-el mipenei darchei shalom”(Tosefta, end of ch. 3 to Gittin).

B. It is proper to…bury non-Jewish dead with Jewish dead to promote relations of peace and amity: “Vekoverin metei Akum im metei Yisra-el mipenei darchei shalom”(B. Gittin 61a).

C. Alfasi quotes verbatim the above (end of ch. 5 to Gittin).

D. Maimonides in Yad, Hil. Evel XIV.12) also quotes the above, but omits the words “im metei Yisrael,” leaving open the question of place of burial. He evidently took the word “im”–as did also Rashi–to mean “in the same grave.” Rashi emphatically states “not in the same grave,” disregarding the clear terms used in the original sources.

E. Asheri likewise quotes the same words and decides in Piskei Harosh accordingly: “maspidin vekoverin.”

F. R. Jacob, author of Turim, emphatically states: “It is not only proper because it tends to promote relations of peace, but it is a Mitzvah, for the ways of the Torah are pleasant and all her paths are peace.” The original itself is not accessible to me just now; however, all the quibbling attempts at misinterpretation of the plain unequivocal terms of the original sources, where we are told “im metei Yisra-el,”cannot change the meaning.

G. It is proper to support the poor…to visit the sick…to bury the dead of non-Jews, to utter lamentation over them (maspidim,funeral ritual), and to comfort their mourners, in order to promote relations of peace (Yoreh De-a 151.12; 335; 367).

I am, therefore, strengthened in my definite conviction that “the non-Jewish wife of a Jewish husband may be buried alongside her husband in a Jewish cemetery,” in full agreement with Dr. Kohler’s decision.

As to the question in point–i.e., “whether a Christian minister was to be permitted to officiate at her grave in the Jewish cemetery?”–to this also I am inclined to say: It is permissible. I believe we may safely rely upon his sense of decency to realize that he is in a Jewish cemetery. We should not be more strict rigorists than the authors quoted above who permit a Jew to officiate (maspidin) at the grave of a Christian. Why then shall we refuse permission to the Christian minister to officiate at the grave of a Christian woman simply because the cemetery is Jewish?

Julius Rappaport

Owing to certain objections raised by a member of the committee, the following alternative procedure is suggested:

In view of the custom prevalent in several congregations to permit such burials in a Jewish cemetery, the lady in question should be informed that the interment ritual would have to be of a neutral character, and that the tombstone could not bear the symbol of her church.

Alternative procedure suggested by a dissenting member of the committee

1. It is superfluous to say that the halachic rule (Gittin 61a; Yer. Gittin V, 47c), “Koverim metei Akum im metei Yisra-el” means that the heathen (non-Jewish)dead may be buried simultaneously with the Jewish dead, but not alongside of them. The deprecatory view of heathen graves (Yev. 61b) with reference to Ezek. 34:31 has, of course, no bearing on Christians, who are regarded as Benei Noach (see responsa of Isaac ben Sheshet, and others).

If needed, please consult Abbreviations used in CCAR Responsa.