Burial of an Apostate

A Jewish family in Los Angeles asked an undertaking establishment to arrange for the burial of their close relative who had just died in a Catholic institution in San Francisco. The nuns in charge delivered the body at the request of the family, but informed the family that the man had been converted to Catholicism and had received extreme unction. The question is this: Is a Jewish institution, or are Jews in general, in duty bound, according to Jewish law and tradition, to pro vide burial for an apostate from Judaism? The family also asks that the body be put in shrouds (tachrichim).

(From Louis J. Freehof, San Francisco, California)

The origin of the law is to be found in the post-Talmudic treatise Evel Rabatti (Semachos, chapter 2). The discussion there includes suicides, criminals executed by the court, people under ban, apostates, and so forth. The general injunction given with regard to all these sinners is that we do not tear the garments for them (Keriah) and we do not engage in any burial activity with them (Eyn Misaskin). This law, namely, the general injunction that we have no concern with, or burial responsibility for, such people, is repeated almost verbatim in all subsequent legal discussion and in the Codes.

Yet, although this formal prohibition is stated and repeated, it is noticeable that there has been continual limitation of the scope of the prohibition. Sometimes the limitations have to do with one of the types of people involved (the suicide, or the man under ban, or the apostate, and so forth). Sometimes the limitation concerns one or the other elements of the general prohibition, such as the formal periods of mourning, or standing in line at the cemetery to console the mourners, or providing shrouds, and so forth. In general, not much distinction is made between these sinners, and what applies to one applies to the other. One can say that the prohibition against formal mourning for this group is the one which is most fully observed. This is due to the general principle that whenever questions have to be settled as to mourning (i.e., how long it should endure, and so forth) the rule is to make the lenient decision; that is to say, whenever in doubt, the decision is to mourn less or not mourn at all. Therefore, this part of the general prohibition (namely, the mourning ritual) usually remains firm through all the discussions of the law. Yet, even in this case, permission is occasionally given to participate in regular mourning. See, for example, the responsum of Moses Sofer, “Chasam Sofer,” Yore Deah 326, where he says with regard to a certain honored family concerning whom the inquiry was made (when a member of the family committed suicide) that he certainly would permit such a fam ily to save itself from gossip and shame, which would come if they conspicuously kept from mourning for the deceased suicide.

Moses Sofer’s decision to permit mourning in the case of a suicide was based upon his concern for the honor of a family. This motivation explains much of the development of the law in this case. The original source of the law in Evel Rabatti summarizes what is permitted and what is not permitted in regard to this group of sinners, by saying that whatever is for the honor of the dead we do not do (since they do not deserve any honor from us), but that whatever is for the honor of the living we do observe. Based on this distinction, every element in the ritual of burying and mourning has been, and must be, separately evaluated. Whatever is for the honor of the dead we do not do, and what is for the honor of the living we do observe. Thus, almost no authority except, perhaps, Ezekiel Katzenellenbogen, of Altona (“Knesses Yecheskel” 37), would say that we give a hesped (eulogy), since the hesped is clearly for the honor of the dead.

Therefore, the question as to whether we are in duty bound to bury these sinners, or to provide tachrichim or not, depends upon the prior question, whether burial and tachrichim are for the honor of the dead or for the honor of the living. This very question is the subject of an elaborate debate in the Talmud (b. Sanhedrin 47c ff.). This debate is evaluated by Abraham de Boton (“Lechem Mishna” to Maimonides, Yad, “Hilchos Avel” I : 10). He bases his judgment on the Tosfos which he cites, namely, that although burial does involve the honor of the dead (and therefore one would think we are not in duty bound to provide this honor for these sinners), nevertheless some disgrace is always involved for the living if the body of the sinner is not properly buried. The fact that the honor of the living is always involved is cited by Abraham de Boton as the explanation of a crucial decision in this matter by Solomon ben Aderet, Rabbi of Barcelona, thirteenth century. (See his responsum 763.) Solomon ben Aderet (Rashbo) says that when Evel Rabatti states that we do not do anything for these sinners (eyn misaskin), this does not mean that we are free from our responsibility for burying them and providing shrouds. Although Solomon ben Aderet is one of the greatest authorities, his opinion would not stand up against the earlier authority of Evel Rabatti if he stood alone. But his opinion is cited by Joseph Caro; see “Bes Joseph” to the Tur, Yore Deah 334, where he quoted this responsum and also another by Rashbo to the same effect. Caro quotes them without the slightest disagreement. So, too, in the Shulchan Aruch, Yore Deah 333 : 3 (the discussion here is specifically about an excommunicated man), Schach (Sabbetai Cohen) cites the opinion of the Rashbo, and states that it has been quoted by Joseph Caro (“Bes Joseph”) and he accepts it as the rule. So the Be’er Hetev (ad loc.) cites it as a rule that the Evel Rabatti does not mean at all that we should refrain from providing burial and tachrichim for these sinners. It is noteworthy that the great Rabbi of Egypt of the sixteenth century, David ben Zimri, said in his commentary to the Yad, “Avel” I :10: “It seems that we must bury them, but not alongside of the righteous.” A full responsum on the question is found in the Responsa of Bezalel Shaffran, rabbi in Rumania, responsum 131. He is asked a question from Yassy about the burial of an apostate. The questioner says they have a minhag in Yassy not to bury such persons in the Jewish cemetery. Shaffran denies that the minhag is valid. He quotes all the authorities, Maimonides, Rosh, Rif, who emphasize that we do not mourn for apostates but imply that We do bury them, and he also quotes Solomon ben Aderet, who specifically says that we do bury them. He also quotes Joel Sirkes (Bach) to Yore Deah 362, who con eludes that we do bury but do not give tachrichim. He then tells that Or Zerua (II, 422 : 3) takes the opposite point of view, that we do not bury them, but he calls attention to Joseph Saul Nathanson’s commentary, “Yad Shoul” to Yore Deah 345, which says that Or Zerua’s statement that we do not bury applies only to the specific case of a shochet who supplies Jews with trefe meat. Finally, he leaves the matter unsettled.

In a footnote, the son of Bezalel Shaffran, Enoch Shaffran, Rabbi of Bucharest, says the matter is decided, and that we do bury them; and he quotes Moses Sofer, Yore Deah 341, who says that we do, and then adds that it is the custom to bury them with tachrichim.

An interesting older responsum on the question of burial of a sinner is found in the Responsa of Jacob l’Ves Levi, 49 (rabbi in Turkey, seventeenth century). This responsum concerned a woman who threw in her lot with her excommunicated son, and violated all the laws of the community and the faith. (By the way, this woman is identified by Perles as the mother of Uriel Acosta [Monatsschrift, vol. XXVI, 1877].) He decides, on the basis of all the opinions cited above (going back to the fundamental decision of Solomon ben Aderet) that it is our duty to bury her. He adds, of course, that if the rabbinical court wishes to make a special example of her and not bury her, they have the right to do so; but that is only under special circumstances of community tension when the safety of the community is involved, when it is permitted even to deprive a sinner of the right to have his son circumcised, or the right of the son to study in the communal school. See Responsa of Nachmanides, 244. Except for these emergency rights of the rabbinate, the general rule is clear: All the sinners listed in Evel Rabatti, including apostates, should be buried by the Jewish community (or their relatives), and also, if desired, shrouds (tachrichim) should be provided