Religion & American Law

NJ Takes Churches out of Headstone Business

Last month, Governor Chris Christie signed a bill that bars all religious groups that own or manage a cemetery from selling headstones and family crypts. The law also prevents religious groups from owning funeral homes and mortuaries. The new law chiefly affects the Roman Catholic Archdiocese of Newark. The Archdiocese of Newark is the largest single provider of in-ground burials in New Jersey and after entering the headstone business two years ago, the Archdiocese of Newark has become a major source of competition for the New Jersey headstone business community as their market share has grown to 36%.

The Monument Builders of New Jersey heavily lobbied the New Jersey legislature to enact legislation which would give monument builders a level playing field. The president of the trade association, John Burns Jr., insisted that private firms could not compete with tax-exempt groups like churches. Burns claimed that within the first 18 months that the archdiocese started selling headstones, some of his colleagues saw business drop off by 40% and that without this law, the archdiocese would develop a monopoly on the market.

I believe that the archdiocese or any other religious group interested in producing headstones has grounds to file a lawsuit against the state of New Jersey over this headstone law as it violates the Free Exercise Clause of the First Amendment. The law is not neutral towards religion, both facially and in practice. The law could have attempted to convey neutrality by barring and nonprofit organization who owns a cemetery from selling headstones but the language of the law plainly says that it is specifically targeting groups that are religious. It appears that secular organizations who could have similar tax benefits as churches would be able to market headstones without any restrictions.

While the facial discrimination towards religious groups is enough for a court to justify striking down this law, some might argue that this law is in fact neutral because is facially neutral towards all religion. While the law imposes the same limits on all religious groups, the law in practice targets religions who hold in-ground burials in high regard like Catholicism. While the trade association expressed concern that any religious group could participate in the headstone business, their main concern was immediately stopping just one group in the Archdiocese of Newark. If the Supreme Court eventually hears a case involving this law, they would do well to follow the president set in Church of Babalu v. Hialeah where the city of Hialeah passed a law outlawing unnecessary killings of animals in public or in private as a part of a ritual. This law was not passed until the church leased land in the city and the public demanded that legislation prohibiting animal sacrifice be passed. Writing for the majority opinion, Justice Kennedy asserted that Haileah’s law was not neutral and therefore should be subjected to rigorous scrutiny and would need to be justified by a compelling state interest.

In Church of Babalu v. Hialeah, the Court ultimately did not buy the city’s argument that there was a compelling state interest to reduce unnecessary animal death since multiple provisions were made to allow animal eradication by private companies. Ultimately, it was a case where one minority religion’s religious practice was targeting by the majority. Like Church of Babalu, I don’t think New Jersey has a compelling enough state interest to justify passing such an unneutral law. The law is narrowly tailored so that it only acts on behalf of the Monument Builders of New Jersey. The law does not attempt to prevent religious groups or nonprofit groups in general from participating in business practices in general but only specifically in headstones and funeral homes. This law is not at all neutral towards religion and is not designed with a clear compelling state interest and therefore is not constitutional.

Is New Jersey’s law constitutional? Should religious groups be able to compete with other firms? Please share your thoughts in the comment section below.

Tags: