Synagogue Near a Cemetery

The congregation has bought a lot upon which to build its new synagogue. A main highway runs in front of the lot, and on the other side of the highway, directly opposite, there is a cemetery. The larger part of the cemetery is for non-Jewish burial. There is, however, a small section for Jewish burial, and this is set aside for this congregation. The Gentile part of the cemetery directly faces the street across from the temple lot. The Jewish part is toward the back of the cemetery. The question is whether it is contrary to Jewish law, or tradition, or sentiment, for the congre gation to build its synagogue so close to the cemetery. (Question from Rabbi Henry Tavel, Temple Beth el,Riverside, California) There is no question of the fact that from the plain legal point of view there is no prohibition against the temple being across a wide street from a cemetery. The Shulchan Aruch, in Yore Deah 367 : 5, after stating that it is prohibited to bring Sefer Torahs, to read from Sefer Torahs, and conduct prayers in the cemetery, continues by saying that if, however, the person removes himself four cubits (i.e., about ten feet) from the cemetery, he may read the Torah and the prayers, even though from the place that he stands he can see the cemetery and even the individual graves. If there is a wall bounding the cemetery, then he does not need to remove himself even as far as four cubits.

Thus it is evident that there is no legal objection to synagogue services conducted across the broad street opposite the cemetery, even if the cemetery were in plain view of the worshipers. However, it may well be that some of the congregation will not be content with the simple statement that the law does not object to this location of the temple, but will feel that somehow it is improper even though admittedly legal. Such feelings in the congregation, that there is something wrong about having a synagogue near the cemetery, are not to be brushed aside. One of the elements legally involved with regard to the synagogues and their sacred appurtenances is that certain things are forbidden because they are distasteful (tn’shum mi-uss). Therefore it is important to survey all the laws pertaining to the location of a synagogue in relation to a cemetery. Besides our considering and respecting the feelings expressed by those members who may deem it improper to have the synagogue there, we must bear in mind that many congregations actually have memorial services between Rosh Hashonoh and Yom Kippur in the cemetery itself, and it is therefore important to consider the permissibility in general of having public prayers in the vicinity of graves. Let us therefore go into the entire question.

The law concerning worship in the cemetery is highly complex because there are many elements involved and these elements influence each other. It should be stated at the outset that the reciting of prayers in the cemetery was well known as a regular practice in Talmudic times. The Talmud, in Taanis 16a, discussing the fact that individuals go to the cemetery on fast days to pray, indicates that they used to go either to Jewish or to Gentile cemeteries. So it is recorded in the Shulchan Aruch as law (Orah Hayyim 579 : 3), where Isserles adds, “If there are no Jewish graves available, we go to Gentile cemeteries.” However, this clearly refers to the individual prayers and not to congregational worship. When during the droughts, for example, the individual prayers in the cemeteries and elsewhere were not answered, then public fast-day services were held in the public square of the city.

There is an additional indication that public services were not held in the cemetery, namely, that it was definitely prohibited to bring a Sefer Torah into the cemetery or for a man to come in with the tefillin on his head or wearing the fringes (tzitzes) on his garments. (Incidentally, with regard to the tzitzes, the fringes, the custom now is to permit the wearing of them in the cemetery on the small tallis, “tallis katan.”) It is clear that if no Torah could be read and no tefillin could be worn, then no proper Sabbath, holiday, or weekday services could be conducted in the cemetery.

However, it is important to note the reason for the objection to the bringing of Torah, tallis, and fringes to the cemetery. The prohibition is found first in the Talmud, in Berachos 18a, where it is stated that a man should not bring these sacred objects into the cemetery because if he did so he would commit the sin implied in the verse in Proverbs 17 : 5: “Whoso mocketh the poor, blasphemeth his Maker.” The “poor” here means the dead. When we bring Torah and tefillin and tallis into the cemetery, the “poor dead” are unhappy that they are no longer able to use these sacred objects and we are mocking them in this way. This prohibition, with its rather pathetic folk reasoning, is recorded in the Codes as law (Yore Deah 367 : 2). For us, the idea that the dead are aware of what we bring into the cemetery and are made unhappy by their deprivation can have very little significance. Therefore, since personal prayer in the cemetery was definitely the custom, we would not find it objectionable to conduct an occasional memorial service there also.

This, however, still means only an occasional special public service. It is a far different matter to visualize a permanent building erected on cemetery grounds for regular Jewish worship. Yet, actually, synagogues were built or proposed for building on cemetery ground, and there are a number of cases in Jewish law discussing the regulations involved. From the cases we can gather most of the legal principles involved. One case was discussed by the famous Rabbi David Oppenheimer, of Prague (1664-1736). He wrote a long responsum which has been published at the end of the book of responsa of Yair Chaim Bachrach (“Chavos Yair”). A congregation bought land for a synagogue. When they started to dig for the foundation, they found human bones, and they realized that they were building on a former cemetery. A second case, a century or so later, is discussed by Mordecai Benet (1758-1829), Rabbi of Nikolsburg, Moravia, in his “Parashas Mordecai 9.

A most aggravated case of this same situation occurred in England in the city of Hull a generation ago. A congregation bought a Christian chapel and found in its basement vault about three hundred bodies which had been buried over the centuries. Rabbi Israel Chayim Daiches, of Leeds, permitted the synagogue to be used (after ordering the cementing over of the niches in the walls of the vault). He defends his position in a book called Taharas Hdkodesh. About a decade later, a rabbi named Mordecai Schwartz declared the synagogue unusable. He defended his opinion in a book called Lahavdil . . . (To Distinguish between the Clean and the Unclean). In these four responsa, almost all the arguments that can in any way be involved are fully dealt with.

The arguments, as we have said, are complicated. First of all, if there are still graves on the land under the synagogue, may the Sefer Torah and tefillin and tallis be brought into such a building, as we have mentioned above with regard to an open cemetery? But the main arguments concern the priests, the Cohanim. May a Cohen enter such a synagogue? This is a serious question in Orthodox law, because a Cohen is virtually indispensable to the synagogue worship. He is called up to the Torah first on every Sabbath, and on holidays he chants the priestly blessing. The question, therefore, is: if there are still bodies in the ground under the building, and this may still be regarded as a cemetery, may the priest then enter?

While in general a priest may not enter a cemetery, except for the burial services of his seven close relatives, there is a difference between Jewish and Gentile cemeteries in this regard. A priest is defiled more completely by the Jewish dead than by Gentile dead. Jewish dead defile a priest either by contact with the body (maga) or by “enclosure” (ohel, i.e., by being in the same room as the body). While it is true that a Gentile body would likewise defile a priest by contact, the majority of authorities are of the opinion that a Gentile body does not defile by enclosure (oheT). That is to say, a priest may be in a Gentile cemetery and walk under its sheltering trees, and as long as he does not actually touch the graves, he has committed no sin. Another complication is the fact that the legal authority Abraham ben David, of Posquiere says in his notes to Maimonides (Yad, “Hilchos Neziros” V : 17) that nowadays all priests are by now defiled by contact with the dead (and presumably it is no longer a sin to have additional contact with the dead). These various considsrations are weighed together by the various authorities and the conclusion arrived at according to each one’s feeling in the matter.

Of course, for us to whom by principle the special status of the Cohen no longer is maintained, we would not give too much weight to the opinions of those who say that a Cohen may not enter a synagogue built on cemetery ground. Nevertheless, the general feeling on the matter would be enough to make people feel doubtful about a synagogue built on such ground. David Oppenheimer says, in his responsum referred to above, that if the ground is dug up over the entire area to the depth of a cubit and a half (i.e., about four feet, which builders nowadays would do anyway for the foundation) there would be no objection. The reason for this requirement is that perhaps in that Gentile cemetery there may be some Jewish apostates buried and they would still be considered Jews to the extent that their bodies would defile a priest not only by “touch” but also by “enclosure.” Hence, opinions on such a synagogue are divided. But for the sake of sentiment, the building of a synagogue on former cemetery grounds should be avoided if possible.

Perhaps one more consideration might be borne in mind with regard to your synagogue. The Mishnah, in Baba Bathra II: 9, says that cemeteries must be removed from the city as far as fifty cubits. This is transmitted as law in the Shulchan Aruch, Choshen Mishpot 155 : 23. This requirement is mentioned together with ill-smelling tanneries, which should also be kept out of the city a distance of fifty cubits. All the commentators indicate that the reason for the distance is to avoid the noxious smell. Whether this is still a consideration today is also doubtful. Modern cemeteries are not as unpleasant to the living as were the ancient cemeteries. Furthermore, I imagine that the distance of your temple building from the cemetery will be even more than the required fifty cubits, which is about sixty yards. It is interesting in this connection to note that the strict rabbi Mordecai Schwartz mentions without objection two other synagogues in Hull which are across the street from a cemetery. And in many ancient Jewish synagogues (such as that of Prague) the cemetery was virtually adjacent.

But, of course, with regard to your synagogue, as we stated at the outset, since it is far enough away from the cemetery, there can be no objection to it even in the strictest interpretation of all the laws mentioned above