A new New Jersey law makes it illegal for private religious cemeteries to sell headstones. That may come as a shock, but the multifaceted story behind the controversial law is as bizarre as the law itself, if not more so.
According to the complaint filed on behalf of the Archdiocese by the Institute for Justice (IJ), banning religious institutions from selling headstones violates several Constitutional rights:
"The law, which interferes with the economic liberty of the Archdiocese solely for the purpose of private economic protectionism rather than for any legitimate public reason, violates the U.S. Constitution, specifically the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment, and the Contracts Clause of Article I, Section 10."
A few years ago the Archdiocese of New Jersey launched their “inscription-rights program.” They sold headstones and monuments as a way to ensure funds for their burial properties. It was also instituted as a way for the church to keep ownership of the headstone so they can maintain the monument and better serve their parishioners.
There are close to 1,000,000 people at rest in the 11 New Jersey cemeteries owned by the church.
In 2013, after experiencing a loss of income, the Monument Builders Association of New Jersey sued the Newark Archdiocese in an attempt to end the program. The state court determined there was no legal basis to prevent the church from selling headstones - but, the dispute did not end there.
The Monument Builders Association then lobbied the state legislature to pass an amendment to the state's Religious Corporations Law (Assembly Bill 3840) preventing the sale of headstones by a private religious institution. Gov. Christie (R) signed the bill into law on March 23, 2015 and it is scheduled to take effect on the same date the following year.
Now, the Archdiocese is fighting back with the help of the Institute for Justice, a Virginia based law firm dedicated to economic and libertarian causes.
“A headstone is just a beautiful rock and there is no legitimate reason to restrict who can sell one,” explained IJ Senior Attorney Jeff Rowes. “This attack on the economic liberty of the Archdiocese is one of countless examples from across the country of how special interests and lawmakers conspire to clobber consumers and drive up prices. We are willing to go all the way to the U.S. Supreme Court to fight this,” he added.
There is some precedent to this seemingly inexplicable case. In 2013, another Institute for Justice client fought for a similar right all the way to the Supreme Court – and won.
The Louisiana Board of Embalmers and Funeral Directors pushed a state board to stop Benedictine monks from selling hand-crafted caskets. Since they sold the caskets for well under the normal cost of a regular casket, funeral homes argued their business suffered. After a five-year legal battle, the 5th Circuit court of appeals ruled in favor of the monks. The Embalmers appealed to the Supreme Court, but their request for a hearing was denied.
The Institute for Justice released a nifty, short video explaining the headstone controversy: