The litigation over a family’s desire to move its father from one cemetery to another 45 years after the original burial raises moral and practical questions that Jewish cemeteries and perhaps those of other faiths will need to address.
The recent decision by the Allegheny County Orphans’ Court permitting the disinterment of Howard Tobin came over the objection of the cemetery in which he was buried. Tobin’s family sought the move at the request of their mother who found it difficult to travel to visit her husband, but who passed away while the litigation was pending.
The cemetery, operated by Poale Zedek, objected to the disinterment on religious grounds. The court ruled that the family’s interest in having the father buried closer to where they lived outweighed the interests of the synagogue to uphold Jewish law. While accepting the court’s decision as final, the synagogue believes that it is still important to let the community know why it felt compelled to oppose the family’s request.
Perhaps as significant as the ruling itself, the litigation focuses attention on the basic social covenants into which people enter when agreeing to be buried or have a loved one buried in a cemetery run by a faith-based community.
Faith-based communities place a high level of importance on the rules, traditions and rituals related to death and burial. Religious communities, as well as the military and other social groups, follow set procedures in burial and mourning as a means to come to terms with death. The message of closure to life on earth is expressed through these rituals.
To some faith-based groups, maintenance of a cemetery that supports these goals is a component of their mission to sanctify the dead and the process of mourning. The Jewish faith prohibits disinterment, except in limited circumstances. While each disinterment case must be decided on its own facts, Judaism believes that the soul of the deceased is disturbed when its physical remains are moved. In recognition of this conviction, Jewish law applies the presumption that the deceased would prefer not to be disturbed.
Historically, Pennsylvania law also recognized a duty to protect the remains of the dead from being disturbed. Whether concern for the rights of the dead to rest in peace had religious roots or not is unclear, but the finality of one’s resting place has always been paramount in Pennsylvania law, absent compelling circumstances.
Poale Zedeck’s vigorous defense of Jewish law and its position on moving the remains of the deceased should be understood as declaration of the finality of life and the continuation of life in the hereafter. An important guarantee that Poale Zedeck and other Jewish cemeteries make is that the decedent’s burial place is sacred, solemn and virtually always final. Even if the decedent were not religious, the rules of a Jewish cemetery validate this guarantee that the decedent’s resting place is final.
As a practical matter, faith-based cemeteries in Allegheny County will likely try to head off future lawsuits of a similar nature by strengthening rules and regulations related to burials and disinterment. Cemeteries will likely begin to ask a bereaved family purchasing a plot to recognize and accept a list of rules and regulations related to the management of the cemetery, including the cemetery’s objection to disinterment. The idea is to make sure that the family understands its ethical responsibility to abide by the religious laws that govern the cemetery.
This new documentation may not, however, protect religious cemeteries from future disinterment challenges. Later on, some of those agreeing to the new terms may argue that when they signed the documents they were in mourning and shock and so could not fully comprehend, appreciate or accept the terms and conditions of the burial. The fact that the Tobin disinterment is taking place 45 years after the initial burial underscores the problematic nature of these issues for operators of religious cemeteries.
In responding to the Tobin litigation, Poale Zedeck also recognized the chilling implication this sort of controversy has for freedom of religious practice. The right of churches, synagogues and mosques to operate within their religious doctrines is well recognized. Similarly, faith-based cemeteries should not be asked to compromise their ecclesiastical rules absent compelling circumstances, nor should they feel compelled to debase the rules into terms and conditions explained in the fine print of a cemetery deed.
(Joel Pfeffer, an attorney at the law firm of Meyer, Unkovic & Scott, represented Congregation Poale Zedeck in the Tobin disinterment case.)