(Vol. LXXXIV, 1974, pp. 48-50)
QUESTION: The congregation in Poughkeepsie has been given the title to an old Jewish cemetery which has not been used for more than seventy years. The neighborhood in which the cemetery is located has become a slum. It is impossible to keep the cemetery decent. It is constantly being desecrated. It would cost a great deal of money to shield this cemetery from abuse, and even so, it is doubtful whether any effort could succeed. Besides, there is a possibility of neighborhood urban renewal, and it will be difficult to keep the cemetery anyhow. What should be done in this case? (Rabbi Henry Bamberger, Poughkeepsie, New York)
ANSWER: This tragic situation is, alas, not new. It has arisen time and time again in the past. In Europe, frequently the ruler of the neighborhood would send his cattle to graze in the Jewish cemetery. Such a case is mentioned by Israel Isserlein (14th century) in his Terumat Hadeshen, #284. This was deemed to be a particularly offensive desecration, with the cattle trampling over the graves and befouling them, and especially because the Talmud specifically forbids grazing cattle in the cemetery (Megila 29a). Worse than that, sometimes the government would want to run a new roadway through the cemetery. Sometimes--still worse--the government would want to repossess the cemetery. All these situations came up again and again, and the questions always are: What can we do? How much effort should we expend in the attempt to overcome these various threats?
Isserlein himself suggested that the congregation should not tax itself too heavily in order to bribe the officer of the king to keep his cattle out of the cemetery. After all, it is not the Jews themselves who are committing this desecration. As for the second situation, this arose in the city of Cracow, where some of the rabbis, including Moses Isserles, are buried (cited by Moses Feinstein in his Igerot Mosheh, Yoreh De-a 247). Of course, great effort should be expended to prevent, if possible, so permanent a desecration. But what if it fails? And what to do when the ruler repossesses a cemetery entirely? In the latter case, of course, there is no recourse other than disinterment. In fact, Moses Feinstein (who is the present head of the Agudat Harabbanim in America) suggested disinterment in the case of the old cemetery in New Orleans, which was in the same condition as the one in Poughkeepsie, mentioned in the question. He suggests that disinterment is the only permitted solution (Igerot Mosheh, Yoreh De-a 246), and he prescribes that while all the bones taken out of the old cemetery need not be put in separate graves, and may be put in one large grave, nevertheless they should not be mixed up with each other, but kept separated by ridges of earth or stone.
This solution--disinterment--is, of course, the optimal solution, for once the bodies or the bones are removed, there is no sanctity left in the land from which they were removed. The land is then considered Karka Olam, the world's earth, which cannot be prohibited for any ritual reason.
Nevertheless, although Moses Feinstein's suggestion is basically the best, it entails many difficulties. If the cemetery has not been used for almost seventy years, the bones, while they still exist, may well be scattered and unrecoverable. In this regard, it must be remembered also that disinterment is always a cause for sorrow. In traditional law a person must sit on the ground as in Shiv-a for a whole day while the bones of his close kin are being disinterred (Yoreh De-a 403.1). In fact, Moses Sofer, in the case of Budapest, where the whole cemetery was taken away from the Jewish community, actually forbade the Chevra Kadisha to make public the date and the hour of the disinterment, so that a large portion of the community should not need to sit on the ground as in Shiv-a (Chatam Sofer, Yoreh De-a 353).
Perhaps the best thing to do under the circumstances would be, first of all, to remove all the tombstones and to set them up in a special place in the existing protected cemetery. Thus, the memorial of the departed will not be forgotten. Secondly, if there are traceable descendants of those buried in that old cemetery, they should be gathered in a meeting and asked to decide whether they are content with the preservation of the tombstones, or would also wish that the bones be disinterred. The chances are that they will be content with leaving the bones at rest, since they will very likely consider that it is to the honor of the dead not to disturb their bones, and much is permitted in Jewish legal tradition if it is for the honor of the dead.
Finally, the community can do what Rabbi Moses Goldberg of New Orleans suggested in his question to Moses Feinstein--namely, that a layer of earth three handbreadths or more be spread over the entire cemetery. Moses Feinstein rejects this; yet it is, nevertheless, a possible suggestion, since when a layer of earth that thick--three handbreadths, or, according to the Shulchan Aruch, six handbreadths (Yoreh De-a 362.4)--is laid down, the rights of those already buried below have been fully protected, since, if need be, new bodies may then be buried over the old graves. While it is debatable that such an earth-covering would cancel the sanctity of the old cemetery, at least the rights of those buried in it would be completely provided for.
One additional thing, however, must also be provided for, if possible--namely, to see to it by all means available that if the area is taken over in an urban renewal (the possibility of which is suggested in the question), then this particular section of land should never be dug up for foundations for houses (which would disturb and scatter the bones of the dead), but should become one of the open areas converted into a park; and the very trees and grass would be an evidence of respect to those who sleep below the surface.
Solomon B. Freehof