CCAR RESPONSA

5767.3

A Question of Disinterment

She'elah

A congregant has approached me with the following question. There is a new veterans cemetery opening in Palm Beach, Florida. Her husband is buried in a Jewish cemetery further south (almost 3 hours). The area around that Jewish cemetery, moreover, has changed and is “not safe.” The Veterans Administration (VA) will cover the costs of disinterment and reburial in the veterans’ cemetery closer to the woman and her children. There is not a specific Jewish area, but the grave would have a Jewish marker. The VA would also cover the cost of her eventual burial and the plot next to her husband. Is moving from a specifically Jewish cemetery where no one is able to visit to another cemetery that does not have a specific Jewish area permissible in the view of the Reform approaches to halakhah? (Rabbi Michael Birnholz, Vero Beach, FL)

Teshuvah

The fundamental issue underlying our she’elah is that of disinterment: under what circumstances is it permitted to remove a body from its place of burial? As we shall see, halakhic literature has much to say about this question, and our own responsa have addressed it in some detail. As we shall also see, these writings do not lead us to a sure and certain conclusion. This uncertainty results, in part, from the always-present difficulty of applying a general principle to a specific and necessarily unique set of circumstances.[1] It occurs in this case, as well, for the reverse reason: a particular solution to this specific case may have unintended ramifications were we to apply it in general, that is, to other cases that may resemble this one.

1. Disinterment: The Prohibition and Its Exceptions. The prohibition against removing a corpse from its grave is found in the Shulchan Arukh,[2] which draws the ruling from a number of Talmudic[3] and earlier halakhic sources.[4] Various reasons are cited for this prohibition, among them that disinterment “is painful for the dead, because it arouses in them the fear of the Day of Judgment.”[5] Other authorities provide what is to our way of thinking a  more persuasive explanation, namely that the opening of the grave and the removal of the remains is an act of nivul hamet, contemptible treatment of the corpse.[6] It follows that we might waive this prohibition under certain circumstances, when the disinterment is considered honorable (rather than contemptible) treatment of the corpse or when we can presume that the deceased would have wanted to be moved to another burial place. And, indeed, the tradition permits disinterment, for example, to move the deceased to his or her family plot,[7] for reburial in the land of Israel,[8]  if the deceased had left instructions that he be buried elsewhere, or if the burial had taken place under the advance stipulation that the body be moved to another location.[9] Similarly, the body may be exhumed when there is a concern that the grave “cannot be properly protected” from vandalism or from natural erosion; “it is a mitzvah” to bury the corpse in another grave to spare it distress (tsa`ar) and disgraceful treatment (bizayon).[10]

Based upon the above, it would be possible to construct a good argument for permitting disinterment in this case. The ultimate intention is the creation of a family burial place, and we have seen that the tradition permits disinterment when the object is reburial in a family plot. The nearness of the new cemetery means that the deceased’s wife and daughters will visit his grave more frequently, and this is surely an act of kevod hamet, rendering honor to the dead, as well as nichum avelim, a source of comfort to the mourners. It is also quite conceivable that the husband would have agreed to the plan of disinterment, and this might have the force of an advance stipulation such as that described above. Finally, that the cemetery where the husband currently lies buried is “not safe” is further reason, according to our tradition, to consider disinterment.

2. Objections to the Disinterment. On the other hand, this argument is not without its difficulties. Let us consider some of them here.

  1. The “family plot” contention is somewhat forced. For one thing, the term is our translation of the Hebrew kever avot, which identifies the “family” resting place with the burial site of one’s parents and ancestors. Some authorities, accordingly, would limit the permit for disinterment to such instances and would not extend it to cover burial next to a spouse. We, along with other authorities, are comfortable with a more expansive definition of “family.”[11] Nonetheless, we would note that when Jewish tradition speaks of disinterment and reburial in kever avot, it has in mind an already existing burial site.[12] In our case, the wife does not seek to rebury her husband in such an existing site (say, next to his parents) but rather to create a new “family plot.” In so doing, she would uproot the existing family burial site, namely at the cemetery where her husband currently rests. None of the authorities who allow disinterment for purposes of reburial in kever avot refer to a situation such as this. They would likely urge the opposite course: the wife should wish to be buried next to her husband, at the existing “family plot,” rather than to disturb his corpse for burial in a place where, as yet, no family members have been laid to rest.

  2. The argument that the husband’s cemetery is in an area that is “not safe” is a serious one, but it is difficult to measure. R. Moshe Feinstein permits the removal of all the bodies buried in a cemetery that is located in an unsafe neighborhood and where it is impossible to protect it against vandalism,[13] and our teacher R. Solomon B. Freehof concurs that disinterment is “the optimal solution” in such a situation.[14] But just how “unsafe” is the cemetery where this woman’s husband lies buried? The members of this Committee cannot make that determination. We would suggest, moreover, that the claim that the cemetery is located in an “unsafe” area raises issues of special sensitivity. That claim, to our sorrow, is sometimes used as a code-phrase to express a sentiment that we may be unwilling to utter openly, one that might call into question our Reform Jewish commitment to social justice.[15] We have no reason to believe that the congregant who brings this she’elah is motivated by such a sentiment. Still, it is up to her rabbi to judge whether and to what extent her concern over the security of the current cemetery is warranted by the facts.

  3. Removing the deceased to a cemetery “closer to the woman and her children” will enable them to visit his grave more often. That is surely a good thing, but we think it is insufficient grounds to permit disinterment. Our society (we speak here principally of the United States) has for some time been an increasingly transient one. Many of us live far away from what was once our family home, and we tend not infrequently to move from place to place for purposes of education, employment, professional advancement, and retirement. In our travels we have generally not thought to uproot our dead and to bring them along with us. We have preferred, in devotion to our Jewish tradition, to leave them undisturbed in their final resting places and to visit them whenever we can. This approach certainly places a burden of inconvenience upon us, but we have thought that it better comports with the specific Jewish way of rendering honor to the deceased (kevod hamet).[16] Again, we have no reason to believe that the congregant in this case is motivated primarily by considerations of personal convenience. Yet should we issue an affirmative answer to her request, that answer would rightly be cited as a precedent by others in similar circumstances who might in fact seek to disinter and to move their dead largely out of such reasons. That is a line we can ill afford to cross.

  4. Finally, we would discourage the removal of the dead from a Jewish cemetery to a non-Jewish cemetery. Although Jewish law imposes no formal (.e., Toraitic or Rabbinic) requirement that the dead be buried in a “Jewish cemetery,” Jewish communities have by long-standing custom acquired land for the purpose of establishing their own burial places.[17] It is there that we ought to lay our dead to rest. We have, indeed, no objection to the burial of our dead in national military cemeteries that are not associated with any particular religion, since those burial grounds are considered the property of all the country’s citizens. Yet from this absence of an “objection” we have never deduced that it is permissible to disinter a Jew from a Jewish cemetery for reburial in such a cemetery, and we have in fact decided otherwise.[18] This, too, is a weighty consideration against approval of the widow’s request in our case.

3. Conclusion. Jewish tradition does not unequivocally prohibit this wife’s request for the removal of her husband’s remains to the veterans’ cemetery closer to her home. As we have said, one could construct a good argument from the sources in support of an affirmative response. But the objections that we have cited are serious enough to give us pause, particularly because a “yes” answer to this she’elah might lead to undesirable ramifications in future cases. Given our general opposition to disinterment, we would urge the rabbi to discourage the widow and her family from taking this step. He should support their request only if he is convinced that the arguments brought in support of it – especially the concern over the lack of safety at the existing cemetery– are truly substantive and persuasive.


NOTES

1.         This point parallels the famous insight of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote: “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise” (Lochner v. New York, 198 U.S. 45, 76). In Jewish law, too, the correct application of the rules is frequently not determinable by way of logical syllogism. It requires, instead, an act of judgment by the interpreter(s). Judgment, by its nature, is controversial in a way that logic and mathematics are not. It is established by argument, not demonstrated by proof, and in any given case a different judgment might arguably be a better one. Yet no sort of legal or religious interpretation can occur without judgment and argument. It is for this reason that rabbis write responsa to argue for their conclusions and that their readers are invited to join in discussion and debate over them.

2.         Yoreh De`ah 363:1.

3.         Y. Mo`ed Katan 2:4 (81b); Semachot (Evel Rabati) 13:7.

4.         Sefer HaRa’avyah III, Mo`ed Katan, ch. 832; Nachmanides, Torat Ha’adam, inyan hakevurah (ed. Chavel, 119); Or Zaru`a 1, Responsa, no. 755, and 2:419-420; Sefer HaKolbo, ch. 60; Tur, Yoreh De`ah 363.

5.         Sefer HaKolbo, ch.114, citing Job 3:13 and I Samuel 28:15 as prooftexts; R. Yehoshua Falk Katz, Perishah to Tur, Yoreh De`ah 363, no. 1; Turei Zahav and Siftei Kohen to Shulchan Arukh Yoreh De`ah 363:1.

6.         R. Ya`akov Reischer (18th-cent. Germany) refers to nivul as the “principle reason” for the prohibition and plays down the theme of fear of Judgment Day; Resp. Shevut Ya`akov 2:103. See also R. Zvi Ashkenazi (d. 1718; Germany/Poland), Resp. Hakham Zvi, no. 50.

7.         Shulchan Arukh Yoreh De`ah 363:1: “it is pleasing to a person that he be buried next to his ancestors.” Siftei Kohen ad loc.: burial with one’s ancestors “is an honor to the deceased.”

8.         Shulchan Arukh Yoreh De`ah 363:1. The reasons (ad loc.): burial in Eretz Yisrael affects atonement (kaparah) for one’s sins (Siftei Kohen), and we can presume that the deceased would have wanted his final resting place to be in the land of Israel (R. Eliyahu, Gaon of Vilna, Bi’ur HaGra).

9.         Shulchan Arukh ad loc. The theory here is that if the deceased is buried in a place not of his or her own choosing, he or she has not truly “acquired ownership” of that grave; Resp. Chatam Sofer 6:37 and Resp. Maharam Schick, Yoreh De`ah 354.

10.       Or Zaru`a 2:420; Shulchan Arukh Yoreh De`ah 363:1.
11.       R. Moshe Feinstein, Resp. Igerot Moshe, Yoreh De`ah 1:236, allows disinterment in this sort of case only for the burial of a child next to a parent. On the other hand, he cites the differing view of R. Meir Simchah of Dvinsk, Or Sameach to Mishneh Torah, Avel 14:15. See as well the discussion in R. Yekutiel Greenwald, Kol Bo `al Aveilut, 233-234

12.       See Turei Zahav, Yoreh De`ah 363, no. 2; Resp. Knesset Yechezkel (R. Yechezkel Katznellenbogen, 18th century Germany), no. 43. The Chatam Sofer (6:37) sided with those who permitted the exhumation and reburial of R. Mordekhai Benet in “the burial place of his ancestors (avotav) and his relatives (mishpachto).”

13.       Resp. Igerot Moshe, Yoreh De`ah 1:246.

14.       American Reform Responsa (ARR), no. 115 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=115&year=arr ).

15.       For example, the Feinstein responsum cited in note 13 refers explicitly to a Jewish cemetery located in a “black neighborhood” (shekhunah kushit) where the residents “treat the place contemptibly, throwing all sorts of trash into it. The cemetery cannot be protected, because each time the fence is repaired they break through it again. The expense incurred, moreover, is greater than the community can bear.” This may have been an objective and accurate description of the security situation at the graveyard (the she’elah came from New Orleans in late 1951). Yet it makes for uncomfortable reading, especially in that it assigns the responsibility for the damage not to unspecified vandals but to the fact that the cemetery lies in what is now a “black neighborhood.”

16.       One can argue, of course, that it is possible to show honor for the dead in ways other than those specified by Jewish tradition. We would agree, but as we have written elsewhere, “(it) is true that concepts such as “honor” and “disgrace” do not admit of objective definition. All this means, however, is that 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”; Responsa Committee, no. 5766.2, “When A Parent Requests Cremation.” The particular culture within which we choose to work is the religious tradition of the Jewish people, a choice that accounts for many of the conclusions that we reach in our work.

17.       See, in general, Contemporary American Reform Responsa (CARR), no. 105 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=105&year=carr ). R. Yitzchak Elchanan Spektor (18th century, Lithuania) argued that this custom stems from the concern that, should we not own the cemetery, we may one day be forced by its owners to remove our dead from there (Resp. Ein Yitzchak, Yoreh De`ah, no. 34).

18.       Responsa Committee, no. 57565, “Disinterment from a Jewish to a Nondenominational Cemetery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=5&year=5756 ).

If needed, please consult Abbreviations used in CCAR Responsa.