Fort Wayne (Indiana) to Have One Stop Shop for Catholic Funerals

The Catholic Cemetery Association in Fort Wayne, Indiana announced that a Catholic Cemetery is to be the new site for the Divine Mercy Funeral Home. The facility will have two visitation rooms, with personal family rooms as well as a crematorium and embalming facility. Bishop Kevin C. Rhoades of the Fort Wayne-South Bend Diocese views the timing as ideal since Pope Francis has deemed this past year (Dec 8th, 2015-Nov. 20, 2016), a Holy year of Divine Mercy. Bishop Rhoades pointed out that upon this past year’s focus of Divine Mercy many Christians have studied and acted on the Corporal Works of Mercy. There are seven Corporal Works of Mercy: (1) feed the hungry (2) give drink to the thirsty (3) shelter the homeless (4) visit the sick (5) visit the imprisoned (6) bury the dead (7) give alms to the poor. These works are found in Jesus’s direct teachings in the Gospel of Matthew 25: 31-45 and in terms of death fall central to the funeral ritual of Catholics. The Bishop expressed excitement to have the Church’s involvement in the entire death and burial process.

In some ways, it is a wonder that more Catholic cemeteries have not expanded in this way before now. Many funeral homes adapt to the religious views of their patrons-- as one would expect. Funeral directors are professionals that learn and polish their skills in vital areas—but when a Catholic funeral is so intertwined and fundamental to those practicing it makes sense to have full service facilities. Is this the beginning of a trend? It could go either way, because this industry is highly regulated it wouldn’t be a surprise to see some legal trouble. One example is New Jersey’s new law that took effect this past April banning monument sales by religious cemeteries. The Archdiocese has filed suit to fight back since it does not seem just that the government can ban harmless commerce just to protect industry insiders. Is there a possibility that enough business will leave the private funeral homes to cause a problem in Fort Wayne? Maybe-- the facilities also include a crematorium a very interesting addition considering the Church’s preference for burial and recent decree requiring cremains to be kept on holy ground. While the demand for cremation continues to rise, it seems likely Catholics that do choose cremation will naturally want to have it done in the Catholic crematorium. However, religious cemeteries enjoy many exemptions under state laws and attract a very specific crowd. So, as with anything else, it comes down to the money. If enough Catholics begin relying on Catholic funeral homes and crematories the private institutions will feel the effects and that is when law makers will be asked to weigh in.

Brandy Nickoloff

Texas' New Fetal Remains Rules Implicate Legal, Religious, and Cultural Tensions

Just after Thanksgiving, Texas joined Indiana in requiring aborted fetuses to be cremated or buried, regardless of gestational age. The new rule, championed by Governor Greg Abbott and promulgated by the state’s Health and Human Services Commission, bars disposal of fetal remains in sanitary landfills.

After receiving considerable pushback, the commission clarified that the rules do not apply to abortions or miscarriages that occur at home, and do not require birth or death certificates to be filed. Still, opposition to the new measures is sizeable. Activists argue that requiring burial or cremation is expensive and that such costs will necessarily be passed on to patients. As such, opponents allege, the requirements are nothing more than a thinly veiled attempt to restrict women’s access to abortions statewide.

These issues are complicated, for they implicate the perilous nexus between strongly held religious and cultural beliefs, on the one hand, and the law, on the other. At what point does a fetus stop being simply a mother’s tissue and become a living thing with all the requisite rights accorded to it? And, if the fetus is not yet anything more than tissue, what control may a woman exercise over it? Unfortunately, the law provides does little to resolve these uncertainties.

The issue is further complicated in that neither human tissue nor human remains are considered property in the typical sense of the word. If not property, what are they? Can they be owned? If so, by whom? The law, again, is of little guidance. As Professor Tanya Marsh noted, “[t]he question of what we own of ourselves – what is the legal status of biological material that’s been removed from us – there’s very little law about that, except to say that it’s not ours.”

Thus, it appears as exists no definite solution to the controversy in Texas. For if there exists presently unresolved legal ambiguities, what hope is there for reconciling associated religious and cultural tensions?

Mickey Herman

Disinterment for Driveway? Error Pits Cemetery Against Family

In 2014, Shirley Sisco was buried at Pretty Prairie United Methodist Cemetery in Howe, Indiana. Now, the cemetery wants Sisco’s family to relocate her remains by November 1, 2016, the second anniversary of her death.

The reason? A proposed driveway.

According to the cemetery, “Sisco was buried in the wrong location, and . . . the grave and resting place are currently in the way of a planned driveway.” Understandably, Sisco’s family is none too pleased. They have hired an attorney and argue that rather than disinter and relocate Shirley’s remains—which would have the effect of separating her from other family members—the cemetery should change the path of the proposed driveway.

However, whether the cemetery can compel the Sisco family to disinter and relocate Shirley’s remains turns on the interaction between Indiana law and the rules and regulations of Pretty Prairie United Methodist Cemetery.

The local media covering the feud emphasizes that “Indiana law . . . gives a bit more leeway to religious organizations operating cemeteries.” That is true. In fact, Ind. Code Ann. § 23-14-33-3 expressly exempts cemeteries associated with religious and fraternal organizations from many of the requirements that otherwise govern cemeteries in the state. That includes § 23-14-57, which generally requires a member of the decedent’s family to consent to disinterment.

Nevertheless, the Siscos may still prevail. How? Well, religiously affiliated cemeteries enjoy the aforementioned exemption only so far as their rules and regulations conflict with Indiana law. Thus, if Pretty Prairie’s rules are silent as to disinterment, Shirley may only be relocated with her family’s consent. Unfortunately, further analysis is impossible given that the cemetery’s rules are not publicly available. Regardless, now that attorneys are involved, it likely that Shirley’s remains will remain in their present location well beyond the second anniversary of her death.

Mickey Herman

Proposed Muslim Funeral Home Pits County Officials Against Establishment Clause

No ground has yet been broken, but a Muslim funeral home in Georgia is already facing vocal opposition. The facility—which would be the first of its kind in the state—is part of a multi-stage development recently announced by Al Maad Al Islami, a nonprofit corporation led by Imam Mohammad Islam. The funeral home and an accompanying cemetery constitute the first stage, set to be built along Highway 162 in Newton County, located southeast of Atlanta. According to Islam, the second stage of the project would include building a mosque on the site. Depending on the availability of additional funding, a school and public park may round out the project.

Though surely applauded by many, the plan is also facing considerable opposition. Newton County Commissioner John Douglas has expressed his reservations about the project, claiming that “[a]ll the emails [he’s] gotten . . . have been negative for various and sundry reasons.” Among them – a concern that the funeral home, cemetery, and mosque might prompt federal authorities to begin settling refugees in the area.

Douglas’ qualms, however representative and loudly voiced, will prove impotent against both local and federal laws that protect religious organizations, including cemeteries, from discrimination. According to the Newton County Zoning Administrator, both churches and cemeteries are permitted uses on the property in question.

More importantly, as at least one county official has noted, “federal law prohibits [government] from imposing regulations on one religious development and not others.” In fact, in both Larson v. Valente and Board of Education of Kiryas Joel Village School District v. Grumet, the Supreme Court emphasized that preferring one religion over another violates the Establishment Clause of the Constitution.

Therefore, because Newton County does not limit where houses of worship may be built, and because a Christian church already exists across the street from the planned development, any governmental action attempting to impede Al Maad Al Islami’s development will likely run afoul of the Establishment Clause.

Mickey Herman

Depictions of God are Out, but Statues of Elvis are In!

Sweden now has its first cemetery in which a devout Catholic, fervent Muslim, and acknowledged atheist can spend eternity together.

According to a 2015 Gallup International and WI Network of Market Research survey, almost 80% of the Swedish people consider themselves to be “not religious” or a “convinced atheist”. Josef Erdem, with the permission of the Church of Sweden, had the vision of a “cemetery for everybody”.  The cemetery is next to the Stora Tuna church, which already has a Christian graveyard; the church will even maintain both cemeteries.    The only restriction in this universal resting place? No religious markers of any kind—no crosses, no depictions of God, no scripture passages from the Bible, and I would assume, no angels ascending upwards—and no nationalist symbols. Other than that, families can still use any decoration or adornment to memorialize the lives of their departed loved ones. So, God is out, but Elvis is in.

So why is a cemetery to accommodate the pious and the non-believer a newsworthy story? A universal, non-sectarian cemetery defies Catholic canon law going back to Biblical times. Consistent with Roman tradition, as illustrated by the story of Abraham, we want to be buried with our ancestors. This often results in separation of faiths even within cemeteries open to those of more than one faith.  The Zentralfriedhof, Europe’s largest cemetery, includes separate sections for Catholics, Protestants, Jews and other religious groups. Tanya D. Marsh & Daniel Gibson, Cemetery Law 350 (God’s Acre Publishing 2015). Catholic canon law also limited church burial to those deemed in good standing at the time of their death.  Why all these restrictions? The churchyard cemetery is consecrated ground and must be protected as such to ensure the salvation of the souls buried there. So, by letting just anyone in, the cemetery becomes just a place for dead bodies and no longer a religious waiting room in anticipation of the Resurrection.

On the other hand, a universal, non-religious cemetery allows inter-faith families to stay together instead of being separated for eternity due to differing religious beliefs.  It can be seen as the ultimate acceptance of different belief and value systems. And, the family of the deceased can still memorialize the gravesite with symbols and relics honoring the departed—as long as God is left out of the picture.

Lisa Roach

Jewish Cemetery Vandalized Days Before Jewish Day of Atonement

Yom Kippur, also known as the Day of Atonement, is the holiest day of the Jewish year.  A few select individuals in New York can only hope for atonement this year after vandalizing a New York-area Jewish cemetery just days prior to the start of Yom Kippur.

On October 9, just two days before the evening Yom Kippur began, a Jewish cemetery in upstate New York was found defaced with swastikas, "Heil Hitler," and the letters "SS," representative of the Nazi security force, spray-painted at the entrance.  Although none of the headstones within the cemetery were damaged, the vandals left their mark in conspicuous black spray paint.

The vandals, if caught, may be subject to punishment under New York Penal Law.  Section 145.22 of the Law defines cemetery desecration in the second degree as when "with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe he has such right, he damages any real or personal property maintained as a cemetery, plot, grave, burial place or other place of interment of human remains…"  As a class A misdemeanor, a sentence between fifteen days and one year can be imposed.

Alternatively, § 145.23(a) may apply when the assessed damage amounts to two hundred fifty dollars or more, thus constituting cemetery desecration in the first degree.  Cemetery desecration in the first degree is a class E felony, which is a fixed term crime with a sentence of between three and four years.

Without regard for any potential spiritual ramifications of desecrating a religious cemetery days before the religion's observation of its Day of Atonement, the vandals in question are most certainly subject to these earthly consequences.

Jillian Sexton

Mass.: Anti-Muslim Bias Transcends Death?

Earlier this year, the Islamic Society of Greater Worcester purchased 55 acres of farmland in the city of Dudley, Massachusetts, to use as a Muslim cemetery. However, their proposal was denied by town officials due to alleged “traffic and environmental concerns.” In response, the group filed a lawsuit against the town in Massachusetts Land Court claiming that the denial was based on anti-Muslim bias, and that town officials had engaged in discriminatory practices that violated the group’s religious rights.

0818_dudley-farmland-1000x666Town officials released a statement denying the allegation, stating that the “Town's zoning and land use practices do not violate any religious rights of the Islamic Society, nor do such practices discriminate against any assembly or institution on the basis of religion or religious denomination." The Town further claimed that town meetings were held where residents of Dudley voiced their concerns about possible problems that could arise from the cemetery. Between the reasons stated were noise concerns, vandalism, an increase in traffic on the road where the cemetery would be built, and potential contamination of groundwater because “Muslims traditionally do not embalm bodies and bury their dead without coffins.”

Last August, Federal prosecutors launched an investigation to determine whether the town’s denial rose to discriminatory treatment under the Religious Land Use and Institutionalized Persons Act (RLUIPA). However, the question remains, is the town of Dudley basing their decision on anti-Muslim bias? More importantly, are they legally allowed to do so?

Unfortunately, Dudley isn’t the first town to resist construction of Muslim cemeteries. Carlisle, Pennsylvania; Farmington, Minnesota; and Farmersville, Texas, are among some of the Towns that have pushed back against Muslim cemeteries. The number of Department of RLUIPA investigations involving institutions related to Islam has increased 38% since September 2010.

In a similar case United States v. City of Lilburn from 2011, the Department filed a suit against the City of Lilburn, Georgia for “its unlawful conduct in violation of RLUIPA.” The suit alleged that the City of Lilburn changed its ordinance to prevent the Shia Muslim community to build a new mosque at its current location. “The suit included allegations that the city’s denial of approval was the result of bias against Muslims and that other similarly sized and situated places of worship had been permitted.” Ultimately, they reached a consent decree that allowed the Shia Muslim community to build a mosque.

Since implemented, RLUIPA has “protect[ed] individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws.”  It provides judicial relief for individuals whose rights are violated, and also “authorizes the Department of Justice to bring suit to uphold people’s rights.”  “Section 2(a) of RLUIPA bars zoning restrictions that impose a ‘substantial burden’ on religious exercise, unless the government can show that it has a ‘compelling interest’ for imposing the restriction and that it is the least restrictive way for the government to further that interest.”

To successfully argue that Dudley violated RLUIPA, the Department has to prove that the regulation (1) imposes a substantial burden, (2) on “religious exercise”, (3) of a person, institution or assembly.  There is no doubt that the Islamic Society of Greater Worcester satisfy prong 2 and 3, but whether a substantial burden exist is a relative determination. “[W]hether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question.” It seems that the religious group is currently significantly burdened because it has to bury it’s dead a distant 60-mile drive from Worcester. The Muslim cemetery “would make it much easier for Muslims in the area to bury and visit their dead.” It is unclear whether Dudley will let Islamic Society of Greater Worcester build their Muslim cemetery, but what is clear, is that both groups are not going down without a fight.

Debora Flores

GA state law made it difficult to open Muslim funeral home

Georgia's first Muslim-owned funeral home opened in Norcross, Georgia on September 19, 2016.

Janaza Services of Georgia cannot only serve Muslims, however. The law in Georgia requires owner Abdullah Tahir Siddiqui to serve everyone regardless of religion. To follow Georgia law, Janaza is required to jump through certain hoops that Siddiqui otherwise would not choose to.

For instance, Muslims do not use caskets, but Janaza has eight on display in his showroom. Georgia law requires all funeral establishments to "maintain on the premises at each of its locations an adequate stock of funeral caskets which shall not be less than eight . . . ." O.C.G.A. § 42-18-70-(b)(3) (2010). Muslims, though, typically will wrap a body in a plain, white fabric and place it straight into the ground or sometimes use a simple wooden box.

Further, Muslims do not embalm their dead, but Janaza's funeral director, Ahmad Rashad, is trained to embalm. Georgia law requires all funeral establishments to be operated by licensed funeral directors. O.C.G.A. § 43-18-71(a) (2010). In Georgia, all funeral directors must be licensed to embalm. O.C.G.A. § 43-18-41(c) (2010). Embalming involves draining the blood from a person's body and then replacing the blood with certain fluids and water that preserve the body. This is what gives the dead the appearance that they are sleeping.

Janaza has an embalming room, required under O.C.G.A. § 43-18-70(b)(2) (2010), but Siddiqui does not use the room for embalming. Instead, he uses it for the ritual washing of the body, an important distinction between Muslim and Christian funeral rituals. 

Muslims have the communal obligation of properly caring for the dead. They believe that the dead can hear and feel what is happening to them as they are prepared for burial. Even during the washing, they keep the body carefully covered and clean it multiple times with soap and water.

For the past 12 years, Siddiqui has used Christian funeral homes around Atlanta to wash and prepare dead bodies, but it was difficult because the Christian funeral homes did not understand Muslim rituals. “I feel always pain in my heart, because as a Muslim we have the feeling that even though it’s a dead body, it has a due respect,” Siddiqui said. Significantly, Muslim men cannot handle or wash the bodies of women unless they are married.

Having Janaza, a Muslim-owned funeral home, eases the burden of the entire Muslim community living in the Atlanta area. Siddiqui embraced this responsibility because he was already involved in Muslim-funeral preparation. Rashad plans to charge customers $1,000 for the basic service as well as offer financial assistance for families who cannot afford that cost. Most important to Rashad is not the money but serving his community, Muslim and non-Muslim alike.

Sarah Saint

Home Funerals, Rent-Seeking, and Religious Liberty

The death of a family member triggers a flurry of decisions, all of which must be made in a time of great emotional stress. At the center of the decisions is a single question—how should the dead be mourned and memorialized? The “right” answer can vary significantly based on religious beliefs, family politics, social norms, and the economic capacity of the family.

Many families are relieved to be able to hire a funeral director to take care of all of the practical details, but there is a growing interest in “home funerals,” in which human remains are prepared for disposition in the home, rather than at the funeral parlor. As described in a recent New York Times article, remains may be washed and dressed by family, members of a religious community, or a funeral director. Surrendering control of the corpse to a funeral director immediately after death, allowing it to be embalmed, and displaying it in an open casket is often referred to as the “traditional” American funeral, but in fact that has only been the “tradition” for a little over a century. Until the end of the 19th century, most American funerals were home funerals.

Families may choose home funerals for many reasons. For some, ritually preparing human remains for burial has significant religious implications. For others, it is a last meaningful act of love.  For too many, the “traditional” American funeral, which averages $8,500 plus the cost of the burial plot, is simply beyond their means.

Throughout the world, home funerals are routine and accepted. In the United States, a country that prides itself on religious liberty and the freedom of self-expression, the growing interest in home funerals represents a challenge to the commercial funeral industry. That industry has responded as economics expect, by engaging in classic “rent seeking” behavior and lobbying state legislatures to enact restrictive laws that insulate it from competition. In the case of home funerals, the competition comes from families themselves.

Sixteen states require that human remains be embalmed or refrigerated within a particular time period after death (usually 24-48 hours). (Those states are: Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Nevada, New Mexico, North Dakota, Texas, and Virginia.) Four of those states (Arkansas, Louisiana, New Mexico, Texas) require that human remains be refrigerated below a particular temperature (typically 35-40 degrees). Virginia already requires that human remains be embalmed or refrigerated within 48 hours after death. Virginia State Senator Kenneth Alexander, a funeral director, has proposed Senate Bill 595 to specify that the remains must be refrigerated at a temperature of no more than 40 degrees. This bill has been received with appropriate outrage by funeral consumer advocates and some funeral directors.

Legal requirements that human remains must be embalmed or refrigerated after death are classic examples of industry rent-seeking.  By requiring “refrigeration,” particularly at a specific temperature, rather than simply permitting cooling via dry ice or other means, these states place heavy burdens on families and religious communities that want to care for remains at home.

On the surface, these requirements seem reasonable. Aren’t human remains a health hazard? Don’t these laws prevent public health nightmares? Actually, it turns out, unembalmed and unrefrigerated human remains don’t pose significant public health risks. The Centers for Disease Control (CDC) reports that “[t]here is no direct risk of contagion or infectious disease from being near human remains for people who are not directly involved … handling dead bodies.”  The CDC further advises that those directly handling human remains can protect themselves from potential bacteria and viruses by wearing gloves and washing their hands. “The sight and smell of decay are unpleasant,” the CDC advises, “but they do not create a public health hazard.” The World Health Organization (WHO) agrees. “The widespread belief that corpses pose a major health risk is inaccurate. Especially if death resulted from trauma, bodies are very unlikely to cause outbreaks of diseases…”  The WHO also advises that “[d]ead or decayed human bodies do not generally create a serious health hazard, unless they are polluting sources of drinking-water…” The Association Française d'Information Funéraire advises that there are three methods for preserving human remains before final disposition: dry ice, refrigeration, and embalming. The use of dry ice is the “common traditional technique for preservation at home,” the Association reports, and “[i]t gives perfect results in 95% of the cases.”

In a 2009 article, author Max Alexander contrasted the home funeral of his father-in-law and the “traditional” funeral of his father. “Home after-death care is not for everyone or every situation,” Alexander acknowledged, “[but it] occurred to me that if more Americans spent more time with their dead … they would come away with a new respect for life.” In the United States, of all places on earth, families should be able to make the choice of how to care for their own dead without the interference of laws designed to protect no one but a for-profit industry.

Tanya D. Marsh

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 1700 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.

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