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December 2014

Not a nuisance, but perhaps a taboo?

Common law is very clear that cemeteries are not a nuisance per se.  This means that as long as it is permitted by applicable zoning and other land use laws, neighbors cannot block the development of a cemetery.  A proposed 100,000 plot cemetery on 60 acres in San Ramon, California, however, raises an interesting issue.  Many of the residents in the surrounding area are "are natives of China and India who believe that living near a cemetery — even one that would not be visible from their homes — is taboo." 

“We really are affected mentally and psychologically,” said Angappa Murali, a software engineer at Hitachi Data Systems who is from India. “Most of us are immigrants,” he said of his neighbors. “We still have spiritual connections.”

In light of the cultural prohibitions on living near a graveyard shared by many in the San Ramon community, should courts re-evaluate the common law rule? 

It is important to note that nobody particularly enjoys living next to a graveyard.  Since Roman times, graves have generally been located on the outskirts of populated areas.  Although the focus of European Christian burial was in churchyards, a tradition which was followed in colonial times and is still followed in many parts of the United States, American cities like New York, Chicago, and San Francisco have been exiling cemeteries for centuries.  The common law rule that cemeteries (and funeral homes) are not a per se nuisance is not because of their wide acceptance by neighbors.  In 1917, the Supreme Court of Michigan considered an effort by neighbors to halt the construction of a funeral home in Lansing:

We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person.  Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person.  Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance.  … [This] is a matter of common knowledge.  The constant going and coming of the hearse … the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs; … the unknown dead in the morgue; … the thought of autopsies of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman – all of these are conducive to depression of the normal person; each of these a constant reminder of mortality.

Saier v. Joy, 164 N.W. 507 (Mich. 1917).  The neighbors in the modern San Ramon case offer similar objections:

Jay Yao, who emigrated from China, is the chief organizer of the cemetery opponents and says funerals would cast a pall on the community. “They will be forcing kids to see funeral processions,” said Mr. Yao, a vice president of quantitative research at Morgan Stanley Capital International. “Children didn’t do something wrong — why do they have to see it at such an early age?”

Community officials in San Ramon appear to think that the "Chinese and Indian residents with spiritual or cultural objections" to the cemetery are raising new issues.  They are not.  As the Supreme Court of Michigan so colorfully opined in 1917, everyone finds cemeteries depressing.

Tanya Marsh


Thomas Jefferson's Obelisk: Desecration and Restoration

Tj 2

After enduring over 150 years of wear and tear, Thomas Jefferson’s personally designed tombstone will be restored to its original state.

Long before his passing in 1826, Thomas Jefferson contemplated his inevitable death.  As a boy, he studied beneath the shade of a favorite oak tree with his closest friend Dabney Carr.  The boys promised each other that the survivor would bury the other at the oak’s foot.  When Carr died in 1773, Jefferson followed through on his burial agreement, burying Carr beneath the favorite oak and beginning the Monticello Graveyard.  Carr was only thirty years old.

Later, Jefferson devised explicit instructions for his own burial alongside his childhood friend at Monticello.  Jefferson’s document stated that he desired “a plain die of cube of 3 f[eet] without any moldings, surmounted by an Obelisk of 6 f[oot] height” and provided a sketch of the grave marker. As for the epitaph, Jefferson dictated that on the obelisk’s face ‘the following inscription, & not a word more” should appear:

Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia

Jefferson explained "because by these, as testimonials that I have lived, I wish most to be remembered."  Yet, scholars finding Jefferson’s choice to exclude his presidency from the list perplexing.

Unnamed

In 1833, Jefferson’s grave marker was erected at Monticello according to his instructions.  However, the marker quickly became the subject of vandalism as visitors chipped off pieces of the stone for souvenirs.  Thus, the marker was moved into the house at Monticello for protection.

Years later, Congress passed a joint resolution providing funding for a new monument and the original marker left Monticello permanently.  Jefferson’s descendants decided to donate the original obelisk to the University of Missouri.  The university seemed appropriate because not only was it the first public university in Louisiana Purchase Territory, which Jefferson was instrumental in acquiring, but the university was modeled after Jefferson’s University of Virginia.

On July 4, 1885, the obelisk was officially dedicated to the university, but the marble slab bearing Jefferson’s epitaph remains in disrepair today.  Now, the Smithsonian Museum Conservation Institute will endeavor to restore the stone, but estimates the project will take at least a year to complete.  After, the stone will return to its permanent display at the University of Missouri.  In the meantime, the Smithsonian Institution’s Office of Exhibits Central has created two replicas, one of which will be used for educational presentations.

Tj

One final note: grave desecration is illegal in many states today, including Virginia where Jefferson’s replacement grave marker is located.  See Va. Code Ann. § 18.2-127 (making grave desecration a Class 6 felony).

Evelyn Norton


Death at a Funeral: Dishonoring a Woman's Life at Her Own Funeral

On October 9, 2014, a woman died suddenly of a brain aneurysm at the young age of 32. Her family held an open-casket funeral for her over a month later. However, the body that lay in the casket was not the Jennifer Gable that many of her loved ones would recognize.

Jennifer Gable had been living as a transgender woman for at least seven years. She legally changed her name from Geoffrey to Jennifer in 2007. Upon her death, her family cut her hair and dressed her in a suit as her body was displayed to family and friends at funeral services. Additionally, her obituary only referred to Geoffrey Gable and spoke of “his” marriage to a woman, educational background, and love of sports.

Some news coverage of this event warns us to register our final wishes with an attorney. One member of the media asks, “Is that something you should have to put in your will? Like, please bury me as I am?”

However, United States courts have refused to recognize property rights in dead bodies. As such, we are not given the opportunity to dictate disposition of our bodies in a legally-binding, testamentary document in the same way that we might be able to with a vintage car or a beloved jewelry collection. This becomes a particularly relevant problem for transgender persons whose families may be unaccepting. Furthermore, these issues do not often reach a court of law because, simply put, there is no return on the investment so litigants are not willing to pay for the cost of legal action.

Crissy Dixon