CCAR RESPONSA

New American Reform Responsa

196. Control of a Cemetery

QUESTION: Our cemetery is part of a general cemetery. We now need to obtain new burial space, however, the general cemetery is unwilling to sell us any additional land. They would, however, provide an adjacent section and permit the Jewish community to control who may be buried there as well as the burial procedures. The land, however, would remain part of the larger general corporation which would set the fees and own the property. (Rabbi Richard B. Safran, Fort Wayne IN)

ANSWER: Burial grounds were owned by families or Jewish communities through most of the Jewish past. This tradition began with Abraham when he purchased a burial site for his wife, Sarah (Gen 23). Subsequently other cave tombs generally owned by families were used (M K 17a; B B 58a; etc), while communities established Jewish communal cemeteries. In some instances in which the number of Jews in a country was small a single cemetery sufficed for the entire nation. So, for example, medieval English Jewry possessed only a single cemetery in London. When efforts to enlarge the cemetery through purchase of additional ground failed or this was refused, Jewish communities were forced to add soil to the existing cemetery and bury anew atop of the old graves (Ariye Lev Shaagat Ariye #17; Abraham Danzig Hokhmat Adam Matzevot Mosheh #10; Tur and Shulhan Arukh Yoreh Deah 362.4; 363). Fortunately, that problem no longer arises.

In the nineteenth century it became customary for various European cities to control the land used for burial by establishing a single large municipal cemetery with sections for each religious body. I am under the impression that the land itself remained in the hands of the municipality though they permanently allocated a section to the Jewish community and stipulated that all matters connected with burial were to follow the practices of that community. Certain general matters such as security, the maintenance of roads, paths and walls were in the hands of the general cemetery. The details varied from place to place but such a pattern was established and accepted (Shulhan Arukh Yoreh Deah 363 ff and commentaries; Ezekiel Landau Noda Biyehudah #89).

The principal concern is the permanence of the graves sites as we do not wish to disturb the graves of those dear to us. If the land is permanently designated as a Jewish section and not a lease for a specific amount of time there is no problem. Nor would there be in your case. It is true that theoretically the owners could change their rules and at some time in the future use some of the land in a different manner. However, this might also occur with the cemetery entirely owned by the Jewish community. The construction of a public road forced the relocation of hundreds of graves in several instances (Greenwald Kol Bo al Avelut). In other words, even outright ownership of the cemetery does not guarantee the perpetual safety of the graves.

We should note one other distinction between the arrangements which you have discussed and those of Europe. In the European case the municipality actually owned the cemetery, while in the United States it is likely to be a private corporation. That type of corporation despite regulations is more likely to suffer instability in the future than a municipality. As the Jewish cemetery in Fort Wayne has been part of the general cemetery for a long time, and as a good relationship with the general cemetery has existed through the years, there should be no problem about the new arrangements through which a Jewish area with the controls which you have stipulated is designated, but not purchased. It is important that this area be clearly delineated and that the agreement stipulate that this land be so designated permanently. Furthermore, all control over burial procedures, tombstones, memorial services, plantings, etc. must follow your congregational practices. It will be necessary to write a carefully worded document to guarantee that this will indeed be a Jewish cemetery although the land will not actually be owned by the Jewish community.

March 1988

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