Timely Responsa, 13 Tevet: Burial, Not Cremation

In 1933-5, cremation came up as a question in Vilna, Israel, and South Africa, as shown in two responsa written on the thirteenth of Tevet, a year apart. In fact, Wikipedia tells me (sorry, it’s easier) that people in the modern era began to advocate for cremation, on environmental and health grounds, in the late 1800s. By 13 Tevet, 5694 (the last day of the calendar year of 1933), the question was posed to R. Chaim Ozer Grodzensky, the rabbi of Vilna: was cremation allowed, and could the ashes be buried in a Jewish cemetery?

I think it was a year later that R. Kook was asked a similar question by R. Moshe Chaim Mirvish, a rabbi in Capetown. This brings me to the first two of several errors I made in the oral presentation of these responsa. First, R. Kook’s responsum is dated to 5798, 1938, when—as R. Oran Zweiter pointed out– R. Kook passed away in Elul of 1935. I checked, and one other responsum in Da’at Kohen is also dated to 5798; probably both were mis-transcriptions of תרצ”ה, 1935 (I am more sensitive to this now that 11-point type is too small for me to tell a ה from a ח).

R. Kook was writing to someone whose name looked like Mirvis, which would suggest he was a relative of the current Chief Rabbi of England, who was born in South Africa. Further research suggests that it was a different rabbi, who last name was actually Mirvish. Two errors down, one more (more significant) error to come.

What’s New Is Old

In Achiezer 3;72, R. Chaim Ozer bundles a few shorter questions together, the fourth of which is the cremation one (in the third, he permits an abortion for a woman whose doctors have said carrying the baby to term would pose a threat to her life; the result is expected, the reasoning surprising– but we don’t have space for it here). He notes that Responsa Beit Yitzchak Yoreh Deah 2;155 prohibited cremation at length, for reasons we’ll see in a moment.

First, my error. Perhaps because YU (the rabbinic part of which is RIETS, the Rabbi Isaac Elchanan Theological Seminary) named its’ Torah journal Beit Yitzchak, after R. Yitzchak Elchanan Spektor (1817-1896), I told the shiur that R. Chaim Ozer was referencing a responsum of R. Yitzchak Elchanan’s. In fact, his responsa were called Be’er Yitzchak; Responsa Beit Yitzchak is a six volume work by R. Yitzchak Yehudah Shmelkes (1828-1904), a rabbi from Poland whose responsa are not in the Bar-Ilan Responsa project and who, as Eretz Hemdah Institute for Advanced Jewish Studies notes, is largely forgotten today, for nonobvious reasons.

But R. Chaim Ozer knew him, well enough to cite his reasons for insisting on burial. In much of this material, R. Kook’s Da’at Kohen 197 simply agrees, so I’ll group those joint aspects of the responsa together. They all agree, for example, that burial is a Biblical obligation, that when Devarim 21;23 tells us not to leave a convicted criminal hanging on a tree but to bury him, that establishes a general obligation (R. Kook notes a Talmudic discussion that the first word might have meant only to put the corpse away, like in an above-ground mausoleum, but the repeat תקברנו means in the ground).

The first step in reading these responsa, for me, was noticing how people can present something as if it’s completely new, when it’s a repeat appearance of an old problem. Today, Wikipedia tells us that in 2008, 36% of bodies in the US were cremated, and that there is a functioning crematorium in Israel, and I have heard those who speak of it as a whole new challenge.  But Beit Yitzchak shows us it was already widespread enough in the late 1800s for him to have been asked about it, and was certainly a worldwide concern in the 1930s.

After I gave the shiur, someone told me that R. Norman Lamm (Hashem should grant him a refuah shelemah) was once asked about cremation and responded, “The Nazis burned Jews; we don’t burn Jews.” A powerful answer, but not relevant for these responsa, written before the horrors of the Holocaust could be imagined.

Resurrection of the Dead

The second support Beit Yitzchak gave for burial, which Wikipedia has but felt like news to me, is that it fortifies our belief in the bodily resurrection of the dead. Remember that Mishnah Pesachim 10;1 had said that even denying that there’s a Biblical source for that belief loses a Jew his or her share in the World to Come (it’s not enough to believe it, we have to believe that it is sourced in Scripture), and also that some of the earliest controversies about Rambam’s writings focused on the question of whether he had implied that resurrection was only spiritual or intellectual but not physical.

(That led to what is, to me, one of Rambam’s strangest letters, where he notes that he has been accused of not believing in bodily resurrection, shows that he had included bodily resurrection in his previous writings, and then reaffirms his belief in it. None of which succeeded in convincing those who didn’t want to believe that he believed in bodily resurrection).

The resurrection part perhaps explains why they all agreed that burying ashes did not qualify as burial.  Burial means taking the body as it had been in life and burying it in the ground. As R. Kook notes, Sanhedrin 90b and other places refer to burial as akin to planting a seed, a metaphor but a powerful one. We put our deceased in the ground, fully believing they will one day sprout, when Hashem resurrects them.

Resurrecting Ashes

It’s not that burial’s the only way, as R. Kook notes, since, first, Hashem is all-powerful and can resurrect whomsoever, whatever the status of the body. More, Jews have been burned against their will throughout history, such as in the Spanish Inquisition, and no one suggested they would not be resurrected (or that we refrain from burying them in a Jewish cemetery).

But burial does give a better reminder of that belief than cremation or any other way of disposing of the deceased, so that willful deviation from that norm is a problem. R. Kook actually starts his responsum with more about this, arguing that even if burial were “only” a longstanding custom (going back to Avraham, who pays a great deal of money for a burial place for his wife), we would have no right to change it. (That’s an important claim of its own, that Jews are supposed to follow their familial and national customs unless there’s some pressing need to change).

Once it is seen to be a mitzvah, there’s even more reason not to change it.

Can Ashes Be Buried?

The arguments against cremation itself are halachic and hashkafic (seeing it as the best reminder of the belief in resurrection). On burying the ashes, matters get a little blurrier. Beit Yitzchak had argued that burying them in an urn or other container would not qualify as burial.

Although not discussed in these responsa, that reminds us that burial in a coffin is also an issue, since it is not burial in the ground. In Israel, burial is either directly in the ground, or the bottom is removed from the coffin; I have been told that some Hasidic sects do that outside of Israel as well, fulfilling וכפר אדמתו עמו, that the ground provides some sort of absolution from sin.

  1. Kook raises the issue in another way, in that the Gemara seems to see the suffering of burial and decomposition of the body as absolution for the soul of the deceased, and cremation avoids that (presumably, since the cremation is wrong, the suffering of cremation does not provide any absolution). That’s more evidence that those in favor of cremation have non-Jewish motives, since what Jew would reject or avoid absolution of their sins?

Achiezer casts doubt on whether there is even an obligation to bury ashes, since they are not the original person (the process of cremation has so changed the body that it is no longer the remains of the person in an halachically significant way). He hastens to add, as we’ve already seen in R. Kook, that we would of course bury those holy ones who had been burned by others, against their will.

Pardon a digression. Both R. Chaim Ozer and R. Kook had said that the resurrection of those who had been burned will proceed differently than of buried corpses. The latter are a sort of planting process, a crop that will be harvested at the time of the resurrection. The resurrection of those who were martyred by burning, R. Kook implies, will be a matter of Hashem’s (even more miraculous) intervention.

The discovery of genetics, it seems to me, gives a real hint as to how bodily resurrection will take place. Especially if all our life experiences are somehow recorded in our genes (a pet theory of mine, that that’s what our junk DNA is all about), there’s the possibility that Hashem could take our existing genetic material and reconstitute us.  Cremation destroys all that; it doesn’t make it impossible for Hashem to do, but it’s a whole different process.

Burying Cremated Ashes

Both respondents oppose burying such people in Jewish cemeteries because it condones or abets this breach of Jewish observance. R. Kook adds that we shouldn’t participate in any prayers or ceremonies honoring such people.

When I spoke about this, people wondered about where the deceased had not wanted to be cremated; that might be akin to the holy ones who were martyred. But what about a deceased who had not expressed a preference, and the family cremated? It seems to me these rabbis would have opposed burying the ashes in a Jewish cemetery, to make the point to the family (since, as we’ve seen, they didn’t think ashes needed a formal burial anyway).

Today, I think it is cemeteries that make that decision, and I am not aware that they consult with rabbis about whom to bury or not to bury. But the question comes up in many other contexts, when and how to oppose breaches of Jewish practice. One attendee at the shiur noted that we don’t refuse to bury those who violate Shabbat; my answer and guess is that a) we hope and assume that people repent at the moment of death, which cannot be true of someone who was cremated, but more so that b) Sabbath violation has, sadly, become so prevalent that there is little point in making a fuss about it at burial.

At the time they wrote these responsa, cremation seemed opposable, seemed like a fight that could be one. But there comes a time, it seems to me, when a fight is lost. That doesn’t mean we then give in and condone that activity (although in other areas, I’ve seen many Orthodox Jews, including rabbis, do just that), but our reaction to it might change (as is true whenever we confront nonobservance—the first generation or two elicits resistance, in the hope we can prevent the lesion from spreading, as R. Chaim Ozer phrases it; once the battle is lost, we retain our attachment to our standards, but react differently to those who have relinquished them).

A Coda

One of my listeners this past Shabbat was a doctor, who told me that many secular Jews refuse to donate organs because they think it means they will not be resurrected. While organ donation after death is a complicated halachic question of its own, I have never seen it phrased in terms of whether we can be resurrected (especially since the Gemara well knew that bodies decompose).

So we have the interesting situation of Jews who do not observe the Torah in many other and arguably more significant ways, who nonetheless believe enough in bodily resurrection of the dead (which, had you asked me, I would have thought of as one of the first Principles of Faith people would cast aside) that they refuse to donate organs for fear of risking it. מי כעמך ישראל, who is like Hashem’s nation of Israel!

About the Author
Rabbi Dr. Gidon Rothstein has served in the community rabbinate and in educational roles at the high school and adult level. He is an author of Jewish fiction and non-fiction, most recently "We're Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix It." He lives in Bronx, NY with his wife and three children.