A Supreme Court judge in Queens County permitted the non-Jewish spouse of a deceased Jewish man to exhume his body from a Jewish cemetery for reburial in what the judge termed a “non-denominational” cemetery, St. Elizabeth. The decedent was buried in the family plot next to his father. His mother and sister opposed the exhumation, claiming he wanted to be buried in accordance with Jewish Law.
The decedent’s spouse acknowledged that she had signed an authorization for the interment of her husband “whom I know to be a member of the Jewish faith” in the plot owned by Calvin Herskowitz, her husband’s father. However, she testified that at that time she was emotionally distraught and grieving over the sudden, unexpected death of her husband, and did not know that the plot could not accommodate her remains so that she could be buried with her husband.
To determine the decedent’s level of commitment to Judaism, the judge heard testimony from friends and relatives. Among other interesting parts of the decision in Eirand-Herskowitz vs. Mt. Carmel Cemetery Association, the judge stated that: “Although it is not the function of this court to sit in judgment of anyone’s choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith.” The judge also found that: “as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith.”
As far as I know, Jewish law permits the exhumation of remains only under very narrow circumstances. Removing the remains to a non-Jewish cemetery (even one that is non-denominational) is certainly not one of these circumstances. Did the relative’s attorneys make a fatal mistake by failing to have an expert in Jewish law (i.e. a Rabbi) testify that the exhumation most certainly would offend the decedent’s Jewish faith?
Comments welcome.
Update 4/8/11 — the decision was affirmed on appeal. Our follow-up post can be read here. SE
I agree that it is strange that no evidence was presented showing that a disinterment under these conditions is prohibited by halacha. However, it seems to me that such evidence wouldn’t have made a difference — the Court said it was not convinced that the decedent practiced Judaism, and then threw in, by the way, that no evidence was submitted that disinterment was prohibited by Jewish law. Fact remains, though, that the Court didn’t think the decedent practiced Judaism and further found that his paramount wish was to be buried with his wife.
i’m not sure a rabbi would have helped much. this man married out of faith. according to Shulhan Aruch YD 362:5, a rasha may not be buried next to a tzaddik, and even a worse rasha may not be buried next to a lesser rasha. if he was already buried, it is discussion among the poskim as to what is done. see hazon ovadia, aveilut pp 393 – 400 fn 13. his conclusion is that a separation is to be made, between his plot and the others.
Yair- You are assuming he is a Rasha. Is he a Rasha according to Halacha if he is also classified as a “Tinok Shenishba” (literally “captured as a child” which may include an individual never given a proper Jewish education)?
i know that in jerusalem, shabbat desecraters are buried separately, although most of them would be classified as tinok shenishba.
i think rav moshe feinstien has a teshuva about them too. i don’t have one here to look it up.
though this person may not have been a full rasha, nevertheless, it is very likely that he knew that it is prohibited to marry out of faith.
Knowledge that something is prohibited does not necessarily mean one possesses the framework to understand the severity of the issur.
shaul, in that case we should classify all unlearned that never studied the frameworks of halacha as tinok shenishba.
i understood the idea of burying separately, not as a punishment. rather as a seperation of people that are on different levels. hence the bigger rasha is seperated from the smaller rasha. there are poskim who maintain that greater tzadikim should be seperated from lesser tzadikim, and hasidim (the mesilat yesharim type) are separated even from great tzadikim. (i don’t think this common halachik practice).
i recall a teshuva from r m feinstein. it was about a baal teshuva whose parents were buried in a reform jewish cemetery. the son wanted to move them. RMF answered that the parents’ level was that of the reform jews and therefore they belong there.
in that case we should classify all unlearned that never studied the frameworks of halacha as tinok shenishba.
And maybe we should. As I understand the concept, it isn’t that the unlearned person purposely chose to remain ignorant, but that circumstances outside of his control were such that he was deprived of knowledge. If you want to say that someone living in a modern society who did not have a religious upbringing or education, and has no connection to a religious community, is a tinok shenishba, then I don’t see a significant difference between complete ignorance and the abstract knowledge that religious Jews don’t do something because they apply strict interpretation to ancient writings. If someone is a tinok shenishbah on ignorance, they should logically be considered a tinok shenishbah on the understanding (or lack of understanding) of what it’s all about. If anything, that take on religion becomes deeply ingrained, while ignorance can be rectified with education.
Also, if it wasn’t clear from Avrohom’s post, the decedent was already buried in a Jewish cemetery — the issue was whether his body should be disinterred and transfered to a “non-denominational” cemetery. His family argued that his body should remain where it was for religious reasons. The oddity is that they submitted no evidence that moving the body to a “non-denominational” cemetery is prohibited by halacha.
[...] Posted on April 8, 2011 by Avrohom Gefen In April 2010, I blogged on a case in which a Supreme Court judge in Queens County permitted the non-Jewish spouse of a deceased [...]