A Grave Injustice to Religious and Economic Liberty in New Jersey

Since the Third Century, Christians have primarily buried their dead in churchyards and cemeteries owned by the parish or church that they attended. The Roman Catholic Church has therefore been in the "cemetery business" for over 1,700 years. I
08/31/2015 11:15 am ET Updated Aug 28, 2016

Since the Third Century, Christians have primarily buried their dead in churchyards and cemeteries owned by the parish or church that they attended. The Roman Catholic Church has therefore been in the "cemetery business" for over 1,700 years. In England, the legal system from which our own was derived, the Church of England had exclusive "ecclesiastical cognizance" over the dead. That means that the Church had the legal authority to determine who was eligible to be buried in consecrated ground owned by the Church and to make rules regarding interments and memorialization. The Church had such wide latitude over the dead for an important theological reason -- the Church acted as the guardians of human remains until the resurrection. Belief in the resurrection of the dead is a key Christian doctrine. In 1 Corinthians 15 it says:

13 If there is no resurrection of the dead, then is Christ not risen.
14 And if Christ be not risen, then is our preaching in vain, and your faith is also in vain.

The rites and methods of disposition of the dead are not only of concern to Christians. The rituals that mark the transition from life to death are a central part of most modern religions. Indeed, anthropologists note that careful treatment of the dead is a hallmark of humanity. For more than 2000 years, consistent with these traditions, the Western world has legally and culturally recognized the authority of religious organizations over the dead and their places of repose. That streak ended in 2015, in New Jersey.

The Archdiocese of Newark includes 219 parishes and approximately 1.3 million parishioners. Consistent with its spiritual obligations, the Archdiocese owns 11 cemeteries that hold the remains of 1 million people. Nearly 6,000 parishioners are added each year. Like most cemeteries owned by religious organizations, interment is restricted to members and their families.

The Archdiocese provides three methods of interment, each of which offers a different method of memorialization. First, traditional in-ground burial of casketed remains or cremated remains in a grave. Graves are typically marked with tombstones. Second, interment in a community mausoleum, a large above-ground structure with individual niches for caskets and urns. The front panel of each niche may be decorated with an inscribed memorial tablet. Third, interment in a private mausoleum, a structure constructed for a particular family and restricted to members of that family. Inscribed tablets on private mausoleums identify the family and the individuals within.

In the United States, it is possible to "own" a grave, family plot of multiple graves, or private mausoleum. However, the prevailing practice is for a person or family to purchase a "right to interment." This right entitles the owner to inter one or more persons in a designated space, and is subject to the rules and regulations of the cemetery. The Archdiocese of Newark sells rights of interment. Those rights do not include tombstones or mausoleum memorial tablets. Instead, if families choose to install memorials, they must be purchased separately. In the Archdiocese, memorials were exclusively purchased from private monument dealers until 2006.

Traditionally, the owner of a right to interment has no obligation to maintain the grave or mausoleum. Although the law varies greatly from state to state, the owners of some cemeteries have a legal obligation to maintain a "perpetual care fund" and use those funds to maintain the cemetery. Religious organizations are often exempt from these legal requirements but have deep moral commitments to maintaining the sepulchers of the dead. No state law requires cemetery owners to maintain tombstones and monuments. In fact, most state laws prohibit cemeteries from exerting any control over them. This leads to significant practical problems. After a generation or two, families have little interest in maintaining the monuments that they technically "own," and cemeteries lack the legal authority and much needed funds to perform the maintenance themselves. Every year, people are injured or killed by falling tombstones and monuments, victims of this disconnect in the law.

In 2006, the Archdiocese created the "inscription-rights program" to raise additional funds for the maintenance of the cemeteries. While families remained free to purchase private monuments, they were also given the option to purchase a memorial right analogous to the right of interment. Like the grave itself, the Archdiocese began selling the right to have a memorial tablet or tombstone inscribed. Ownership of the monument, which it covenanted to maintain in perpetuity, remained in the Archdiocese. From 2006 to 2013, the program applied only to private mausoleums. In April 2013, the Archdiocese expanded the program to include headstones. Immediately thereafter, the Monument Builders Association of New Jersey complained to the Archdiocese that the program would adversely impact their businesses.

The Archdiocese refused to halt the program and the Monument Builders filed suit, alleging that it was "unfair" to allow private religious cemeteries to compete with them because the religious organization has a pre-existing relationship with the customer. The trial court found in favor of the Archdiocese, noting that New Jersey law did not prohibit the Archdiocese from selling monuments. That ruling was upheld by a state appellate court.

The Monuments Builders then pursued their cause in the New Jersey Assembly. They were more successful there. Bill A3840 passed the General Assembly by a vote of 63 to 10 and the Senate version by a vote of 27 to 4. On March 23, 2015, Governor Chris Christie, an advocate of religious liberty and small government, signed Bill 3840 into law. The law states that:

... a religious corporation, association, organization or society ... that owns or controls a cemetery or that engages in the management, operation or sales of or for a cemetery, whether directly or indirectly, or the owner or operator of a religious cemetery, is prohibited from engaging, directly or indirectly, in:
(1) the ownership, manufacture, installation, sale, creation, inscription, provision or conveyance, in any form, of memorials;
(2) the ownership, manufacture, installation, sale, creation, provision or conveyance, in any form, of vaults, including vaults installed in a grave before or after sale and including vaults joined with each other in the ground;
(3) the ownership, manufacture, installation, sale, creation, provision or conveyance, in any form, of a mausoleum intended for private use, which shall not include a mausoleum built for use by or sale to the general public membership of a religious organization; ...

John Burns, the president of the Monument Builders of New Jersey and the owner of a monument business that sits across the street from Holy Cross Cemetery in North Arlington, New Jersey, celebrated the new law.

There's no way that we, as small businesses, could have competed with the church, which does not pay any taxes whatsoever. Bottom line, it preserves our industry. We will still service our communities the way we have for the past 150-plus years, and the state will collect its taxes.

This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue--headstones and memorial tablets--are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums--everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.

The Archdiocese and several parishioners, assisted by the Institute for Justice, have filed a lawsuit against the State of New Jersey, arguing that the law violates the Due Process, Equal Protection, and Privileges or Immunities Clauses of the 14th Amendment, as well as the Contracts Clause of the U.S. Constitution. The lawsuit argues that the State has no power to restrict economic liberty simply to protect a class of market participants from competition. Instead, the lawsuit contends that restrictions of economic liberty must be related to a legitimate government interest. Great deference is typically accorded to the acts of legislatures. But legislatures have traditionally given great deference to the practice of religion. The operation of religious cemeteries is clearly religious practice. As the Archbishop of Newark has written:

The Holy Scriptures teach that death is part of the natural process to an ultimate union with God. Because of our Catholic faith, we believe that burial in a Catholic cemetery demonstrates love and respect for the deceased, and leads us to an eternal union with God's love. ... The cemetery is an extension of the Church that ministers to our grief as the Church ministers to our faith.

One would think that a fairly important public interest would be required to so blatantly infringe on religious activity. But this law appears to be based on no legitimate public interest whatsoever. To the extent that this law is justified as consumer protection, it must rest upon the outlandish idea that consumers should trust profit-making organizations more than their own religious communities.

I can't even imagine what Jessica Mitford would have to say about this one.