Malaysian Court Rejects Church's Challenge To Seizure of Books Using Term "Allah"

Malay Mail reports that in Malaysia on Monday the Kuala Lumpur High Court dismissed a suit that had been filed in 2007 by Sidang Injil Borneo (Borneo Evangelical Church) challenging the Home Ministry’s decision to seize three boxes of Malay-language Christian educational books imported from Indonesia that contained the word "Allah." The books were seized in 2007 at the airport while in transit, but were returned to the church several months later. The High Court said it was bound by the precedent established by the Court of Appeal last October that prevented the Catholic Herald from using the word Allah in its Malay language editions.  The High Court said the Herald case concluded that the Arabic word “Allah” is not an integral part of the practice and faith of Christianity. (See prior posting.)

According to Malaysian Insider, critics of the decision say the judge ignored special laws on religious freedom in Sabah and Sarawak.

Alaska Supreme Court Holds Tax Exemption Unconstitutionally Discriminates Against Same-Sex Couples

In State of Alaska v. Schmidt, (AK Sup. Ct., April 25, 2014), the Alaska Supreme Court held that a state tax exemption program that discriminates against same-sex couples violates the state constitution's equal protection clause. Same-sex marriages are not permitted or recognized in the state. Alaska exempts from municipal property tax up to $150,000 in value of a home of a senior citizen or disabled veteran.  The full exemption is available where the senior's or veteran's spouse who co-owns the home also lives there.  However the exemption is reduced where a same-sex partner who co-owns the home lives there. According to the court, this creates an equal protection problem:

we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska.

Two Less Expected Reactions To Yesterday's Supreme Court Decision On Legislative Prayer

While many of the reactions to yesterday's Supreme Court decision in Town of Greece v. Galloway were predictable, here are two that might be classified as surprises:

• Yair Rosenberg, writing at Tablet Magazine, finds a historical error in Justice Kagan's dissent.  She refers to Newport, Rhode Island as "the home of the first community of American Jews." However that honor goes to New Amsterdam. Newport is home to the oldest standing synagogue in the U.S.
• The American Humanist Association announced that in reaction to the Supreme Court's decision it is launching a program to provide resources for atheists and humanists to deliver secular invocations at legislative meetings. A new website allows governmental entities to identify humanists within their borders who can be invited to deliver invocations.

Supreme Court Denies Review In RLUIPA Zoning Case

Yesterday, the U.S. Supreme Court denied certiorari in Eagle Cove Camp & Conference Center v. Woodboro, (Docket. No. 13-1099, cert. denied 5/5/2014) (Order List). In the case, the 7th Circuit rejected RLUIPA challenges to county land use regulations that barred petitioner from operating a year-round Bible camp on residentially zoned property. (See prior posting.)

Supreme Court Upholds Sectarian Invocations At City Council Meetings

The U.S. Supreme Court today handed down a 5-4 decision in Town of Greece, New York v. Galloway, (Sup. Ct., May 5, 2014), upholding the constitutionality of non-coercive sectarian invocations at city council meetings. Justice Kennedy's opinion-- minus one section of it-- constituted the opinion of the court.  Chief Justice Roberts, and Justices Alito, Scalia and Thomas joined with Justice Kennedy in making this the prevailing opinion.  Much of the opinion is devoted to refuting respondents' argument that the Establishment Clause requires legislative invocations to be non-sectarian:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.... To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of nei­ther editing or approving prayers in advance nor criticizing their content after the fact....

Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian....

Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh....

Finally, the majority disagrees with the view taken by the Court of Appeals that the Town of Greece violated the Establishment Clause by inviting predominantly Christian ministers to deliver the invocations:

The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing....

One section of Justice Kennedy's opinion-- Part II-B-- was joined only by Chief Justice Roberts and Justice Alito.  This section amounts to an extensive argument as to why the city council invocations at issue were not coercive:

The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing....

The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar ges­tures by the public. Respondents point to several occa­sions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive....

In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.....

An opinion by Justice Thomas, joined by Justice Scalia, explained their refusal to join Part II-B of Justice Kennedy's opinion. They argued that the Establishment Clause should not be seen as being applicable to the states. The then added that even if the Establishment Clause is seen as incorporated against the states, "the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding." In their view: "to the extent that coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-- not the "subtle coercive pressures" allegedly felt by respondents...."

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, emphasizing the difference between city council meetings and state legislatures, and arguing that the Town of Greece has violated the constitutional requirement of religious equality:

Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Justice Kagan added:

[T]he not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike.....  Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.... They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present  potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” 

Justice Breyer also filed a separate dissent.  Justice Alito (joined by Justice Scalia) also wrote a concurrence directly responding to Justice Kagan's dissent.  CNN reports on today's decision.

AT U.N. Review of Anti-Torture Treaty Compliance, Holy See Says Its Ratification Applied Only To Vatican City State

The United Nations Committee Against Torture met today and will meet again tomorrow (UN press release) to review the Vatican's compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Every country that has signed the Convention must undergo a periodic review of its compliance record before the Committee.  The hearing is being watched closely on the issue of whether clergy sexual abuse around the world violated the Convention. The Holy See's initial report to the Committee and submissions from civil society organizations are all available from the UN's website. The full text of the presentation to the Committee today by Archbishop Silvano Tomasi is reported by Vatican Radio. As reported by AP, the Holy See contends that its obligations under the treaty only extend to the territory of the Vatican City State, and do not apply more broadly to the Holy See which governs the Catholic Church around the world. At issue is the language in the Declaration made by the Holy See when it became a party to the Convention:

The Holy See, in becoming a party to the Convention on behalf of the Vatican City State, undertakes to apply it insofar as it is compatible, in practice, with the peculiar nature of that State.

Recent Articles of Interest

From SSRN:

• Bernard M. Levinson, La scoperta goethiana della versione ‘originale’ dei Dieci Comandamenti e la sua influenza sulla critica biblica: Il mito del particolarismo ebraico e dell’universalismo tedesco (The Impact of Johann Wolfgang von Goethe’s Discovery of the 'Original' Version of the Ten Commandments upon Biblical Scholarship: The Myth of Jewish Particularism and German Universalism), (in Il roveto ardente: Scritti sull’ebraismo Tedesco in memoria di Francesca Y. Albertini, Edited by Irene Kajon, Lithos Editrice, 2013).
• Thad C. Eagles, Free Exercise, Inc.: A New Framework for Adjudicating Corporate Religious Liberty Claims, (New York University Law Review, Forthcoming).
• Ping Xiong, Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies, (Brigham Young University Law Review, No. 3, 2013).
• Frederick Schauer, On the Utility of Religious Toleration, (Criminal Law and Philosophy, 2014, Forthcoming).
• Paolo Lobba, A European Halt to Laws Against Genocide Denial? In Perinçek v. Switzerland, the European Court of Human Rights Finds that a Conviction for Denial of Armenian ‘Genocide’ Violates Freedom of Expression, (European Criminal Law Review, Vol. 4, Issue 1 (2014), 59-77).
• Pawel Niszczota, Religious Prohibitions and Investment: The Effect of the Islamic Moral Code on Investment in Foreign Debt Securities, (January 31, 2014).
• Paolo Lobba, Holocaust Denial Before the European Court of Human Rights: Evolution of an Exceptional Regime, (Oxford University Press, European Journal of International Law, Forthcoming).

From SmartCILP:

• Lara Cartwright-Smith, Benefit or Burden? Religious Employers and the Patient Protection and Affordable Care Act's Contraception Coverage Mandate, [LEXIS Advance Link],18 NEXUS 29-56 (2012-2013).
• 19th Annual International Law and Religion Symposium: "Religion, Democracy, and Civil Society." Articles by Shaun de Freitas, Augusto Zimmermann, Frank S. Ravitch, Neville Rochow, Jaview Saldana Serrano, Aldir Guedes Soriano and Pink Xiong. 2013 Brigham Young University Law Review 421-617.

Pope's New Commission On Protecting Minors Concludes First Meetings

Pope Francis' new Pontifical Commission for the Protection of Minors held its first meeting in the Vatican from May 1-3.  Vatican Radio sets out the full text of the statement issued on behalf of the Commission at the end of the meeting.  It reads in part:

Our conversations included many proposals for ways in which the Commission might collaborate with experts from different areas related to safeguarding children and vulnerable adults.... 

We will propose Statutes to the Holy Father to express more precisely the Commission’s nature, structure, activity, and the goals.... [T]he Commission will not deal with individual cases of abuse, but we can make recommendations regarding policies for assuring accountability and best practice.... [W]e plan to make specific proposals regarding the importance of emphasizing ways for raising the awareness of all people regarding the tragic consequences of sexual abuse and of the devastating consequences of not listening, not reporting suspicion of abuse, and failing to support victims/survivors and their families.

Florida Judge Ordered To Stop Offering Bibles To Criminal Defendants

According to News 13 today, Osceola County, Florida state criminal court judge Hal Epperson has been ordered by Chief Judge Belvin Perry to end his practice of offering criminal defendants a Gideon Bible. The move came after one of the attorneys who responded to a survey by the Central Florida Association of Criminal Defense Lawyers complained about the practice.

Atheist Groups Begin New Project To Combat Discrimination

RNS reported last week that a group of four secular organizations has begun a new project called Openly Secular.  Its goal is to draw attention to incidents of anti-atheist discrimination in hopes of making bias against secularists socially unacceptable. Its first project is to gather stories from individual secularists about discrimination they have faced.

Recent Prisoner Free Exercise Cases

In Todd v. Holt, 2014 U.S. Dist. LEXIS 57961 (MD PA, April 25, 2014), a Pennsylvania federal district court allowed an inmate to proceed with his complaint that he was denied religious certified meals for 14 days while the prison was in lockdown status.

In Sharonoff v. Nash, 2014 U.S. Dist. LEXIS 58114 (ED CA, April 25, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his free exercise and equal protection rights were in fringed when authorities confiscated his mail package containing a copy of the publication "Cosmic Hidden" which contains messages from the edge of eternity.

In Allah v. Virginia, 2014 U.S. Dist. LEXIS 58529 (WD VA, April 28, 2014), a Virginia federal district court rejected an inmate's claim that his rights under RLUIPA were violated when authorities refused to recognize Nation of Gods and Earths as a religion or to allow NGE to meet communally, barred his wearing NGE clothing or having NGE publications, and allegedly did not accommodate his religious diet.

In Poslof v. CDCR, 2014 U.S. Dist. LEXIS 60776 (ED CA, April 30, 2014), a California federal magistrate judge held that an inmate's complaint regarding lack of a proper kosher diet would be dismissed unless an amended complaint is filed curing pleading defects.

In McBryde v. Thomas, 2014 U.S. Dist. LEXIS 59476 (D MT, April 29, 2014, a Montana federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 60657, April 7, 2014) and dismissed an inmate's claim that his parole was conditioned on his completion of a drug treatment program containing religious elements.

Court Invalidates Limits On Muslim Worship In Texas Prisons

A Texas federal district court has handed down a decision giving a major victory to Muslim inmates in Texas seeking more access to religious worship services. In Brown v. Livingston, (SD TX, April 30, 2014), the court held that

(a) [Texas Department of Criminal Justice] current Administrative Directive 7.30 ... which embodies TDCJ’s policy that inmates may not gather in groups of more than four for religious services unless a TDCJ staff member or outside volunteer is available to provide “direct supervision,” is an ongoing violation of the Muslim inmates’ federal rights under the Religious Land Use and Institutionalized Persons Act ... and the First Amendment; (b) the “Scott Plan,” which is TDCJ’s policy of providing TDCJ staff to supervise only one hour of religious services per week for each faith group unless an outside volunteer is present to provide direct supervision, is an ongoing violation of the Muslim inmates’ federal rights under RLUIPA and the First Amendment....

The court enjoined the prison system from applying Administrative Directive 7.30 or the Scott Plan to Muslim and Jehovah’s Witness inmates.

Defamation Claim Between Hindu Temple Members Dismissed

In Thiagarajan v. Tadepalli, (TX App., April 30, 2014), a three-judge panel of the Texas Court of Appeals dismissed under the ecclesiastical abstention doctrine both a defamation action against the secretary of the board of directors of a Hindu temple, and (by a 2-1 vote) a claim by the secretary against the Temple for indemnification for the costs of defending the action.  At issue were the alleged defamatory content of e-mails sent out by Sharma Tadepalli objecting to the DVDs available for purchase or rental from the Temple's library.  Thiagarajan, plaintiff in the defamation action, oversaw operation of the temple’s library.  Tadepalli claimed that some of the DVDs were non-religious and included X-rated Indian movies. The court held:

allowing Thiagarajan’s defamation claim to proceed unavoidably would lead a civil court into the forbidden territory of litigating “‘conformity of the members of a church to the standard of morals required of them.... Subject matter jurisdiction is foreclosed when defamation claims are bound up with ecclesiastical implications such as those present in this case.

The majority also concluded that:

Having pleaded that MTS [the Temple] should indemnify him precisely because the statements at issue “concerned  matters related to the conduct and governance of MTS and to other ecclesiastical matters,” Tadepalli cannot plausibly contend that a determination as to whether MTS should indemnify him nonetheless will avoid determination of “ecclesiastical matters.”

A concurring and dissenting opinion by Chief Justice Frost agreed that the defamation claim should be dismissed, but argued that the claim for indemnification can be decided using neutral principles of law and without resolving religious controversies.

Chaplain's Complaint Over Actions During Government Shutdown Dismissed As Moot

In Leonard v. United States Department of Defense, (D DC, April 30, 2014), the D.C. federal district court dismissed as moot claims by Catholic Navy chaplain Father Ray Leonard that his free exercise and RFRA rights were infringed when military authorities prevented him from performing his ecclesiastical duties during last year's government shutdown. The government asserted that this was required by the Anti-Deficiency Act, 31 U.S.C. § 1342, even if performed voluntarily. However, one day after this suit was filed, the government informed Father Leonard that he and other chaplains would be permitted to continue working during the shutdown and would be paid when funds later became available. The court similarly dismissed Leonard' retaliation claim because he is suffering no ongoing injury. (See prior related posting.)

Report on Human Rights In Pakistan Issued

Last week, the Human Rights Commission of Pakistan (an independent non-governmental organization) issued its 2013 annual report on the state of human rights in the country (full text). In a lengthy chapter on "Freedom of thought, conscience and religion", the Commission said in part:

Pakistan’s record in protecting members of its religious and sectarian minorities from faith-based violence and discrimination has been far from impressive in recent years. In fact, the year under review saw continuation of the recent trend of violence and impunity that seemed to reinforce each other. The growing problems for the minorities came from extremist militant groups seeking to justify violence and brutalities in the name of religion. Secondly, the challenges came from the local factors; and finally, from the government’s failure to protect members of minority religions and sects from faith-based violence or to confront hate speech, intimidation or intolerance. This year also nothing was done to weed out discrimination against non-Muslim citizens written into law or to introduce safeguards widely acknowledged to be needed in order to prevent abuse of the blasphemy law

The Commission made 5 recommendations in this area:

1. Unless serious steps are taken to stop sustained hate campaigns against members of religious and sectarian minority groups and unless those fanning hate speech are brought to justice, the bloodletting in the name of religious faith cannot be stopped.....

2. The blasphemy law is in urgent need of reform to prevent its abuse by extremists and opportunists.... The systematic and organised intimidation of judges in cases of blasphemy or desecration of scripture undermines administration of justice.... 

3. There is considerable evidence that those involved in faith-based violence have penetrated law enforcement agencies..... [T]hese elements should be urgently identified and weeded out....

4. Codification of personal law for Hindus and Sikhs should be a priority.....

5. Nothing has caused as great frustration and desperation among Pakistan’s minority religious faiths as incidents of forced conversion and lack of action against the perpetrators. The state should introduce a mechanism to ensure that the girls in question and their families get justice without having to suffer harassment and threats from rowdy crowds in courts and powerful politicians patronising this repulsive trampling of rights.

Pennsylvania Appellate Court: Property of Breakaway Congregation Belongs To PCUSA

In Peters Creek United Presbyterian Church v. Washington Presbytery of Pennsylvania, (PA Commonw. Ct., April 30, 2014), the Pennsylvania Commonwealth Court in a 4-3 decision held that the church building and other property of Peters Creek Church is held in trust for the Presbyterian Church USA, despite the vote of a majority of the congregation's members to break away and instead affiliate with the Evangelical Presbyterian Church. Applying neutral principles of civil law, the majority held that 2001 Peters Creek bylaw amendments bound the congregation to the PCUSA Book of Order (including its trust clause), and attempts in 2007 to revise the bylaws were invalid. The majority said in part:

[E]nforcement of Peters Creek Church’s commitment to the PCUSA is required by neutral principles if that commitment does not violate the laws of the Commonwealth. The non-profit corporation Peters Creek Church unequivocally incorporated into its own governing documents the mandatory provisions of the Book of Order, including the commitment not to disaffiliate without permission from the Washington Presbytery. Enforcement of those documents, in accordance with neutral principles, does not prevent any individual member of Peters Creek Church from exercising his or her religious preference to leave the Presbyterian Church (U.S.A.) and join the Evangelical Presbyterian Church, or any other church, or no church at all.

The dissenters, in an opinion by Judge McCulloch contended that no trust in favor of PCUSA was created and the 2007 vote to disaffiliate was valid.

Suit Challenging Denial of IRS Non-Profit Exemption Dismissed On Numerous Grounds

In Lock v. United States, (D OR, April 29, 2014), an Oregon federal district court allowed a pro se plaintiff to proceed in forma pauperis, but dismissed, with leave to amend, his suit complaining that the Internal Revenue Service had denied Section 501(c)(3) status for a small church he had founded.  The court held that the claim would need to be brought by the church itself, not by its founder, and also that only the Tax Court, Court of Claims or D.C. District Court would have jurisdiction over such a claim.  Finally it held that plaintiff had not alleged facts to show that the exemption denial was discriminatory.

USCIRF Issues 2014 Annual Report

The U.S. Commission on International Religious Freedom yesterday issued its 2014 Annual Report (full text). Its press release describes highlights of the report. Here are excerpts:

[The Report] recommended that the State Department add eight more nations to its list of “countries of particular concern,” defined under law as countries where particularly severe violations of religious freedom are tolerated or perpetrated: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan, and Vietnam. USCIRF also recommended that the following eight countries be re-designated as “countries of particular concern,” or CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. 

This year’s report, the 15th since the Commission’s creation in 1998, documents religious freedom violations in 33 countries and makes country-specific policy recommendations. The report also examines U.S. international religious freedom policy over the past decade and a half, reviewing what IRFA requires, assessing the record on implementing its provisions, and recommending ways to strengthen U.S. engagement on and promotion of religious freedom.....

Along with recommending CPC designations, USCIRF also announced the placement of 10 countries on its 2014 “Tier 2” list, a USCIRF designation for governments that engage in or tolerate violations that are serious, but which are not CPC-level violators. USCIRF urged increased U.S. government attention to these countries, which include Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia, and Turkey.

The USCIRF report also highlights religious freedom concerns in countries/regions that do not meet the Tier 1 (CPC) or Tier 2 threshold, but should also be the focus of concern, including Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan, Sri Lanka, and Western Europe.

The 200 page report also includes lists of prisoners in various countries held for their religious beliefs or views, or on blasphemy charges. Commissioner William Shaw (at pg. 165) dissented from the decision to make Turkey a Tier 2 country, as well as dissenting from the 15 year IFRA review chapter in the report.

Today Is National Day of Prayer

Today is National Day of Prayer.  36 USC Sec. 119 provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Presumably this year's Proclamation will be posted on the White House website sometime today. Meanwhile the private National Day of Prayer Task Force has scheduled a national observance at the Cannon House Office Building at 9:00 a.m. this morning.  The Task Force's observances traditionally are Christian in focus-- and that remains the case this  year.  The event will be hosted by Alabama Congressman Robert Aderholt.  While two rabbis are listed as participants in the program, they are both from Messianic Jewish organizations.

According to CBN, in preparation for National Day of Prayer, the 25th annual U.S. Capitol Bible reading marathon began Sunday evening. The entire Bible is being read non-stop, and will be completed today.

UPDATE: The Presidential Proclamation -- National Day of Prayer, 2014 is now available on the White House website.

Court OK's Sale of Mausoleum Space and Headstone Inscriptions By NJ Catholic Cemeteries

In Monument Builders of New Jersey v. Roman Catholic Archdiocese of Newark, (NJ Super., April 29, 2014), a New Jersey trial court upheld the right of the Newark Catholic Archdiocese to sell monument inscription rights and burial rights in mausoleums at Catholic cemeteries. Commercial monument builders argued that the Archdiocese has engaged in unfair competition with them, and that the sale of monuments by the Archdiocese is ultra vires and against public policy. (See prior posting.) The court held first that the state's statutory ban on cemeteries selling monuments or mausoleums is inapplicable to religiously owned cemeteries that restrict burial to members of the religious faith and their families.  Secondly, the court concluded that if the Archdiocese is statutorily authorized to engage in its monument and mausoleum programs, its alleged competitive advantage is irrelevant.  The court went on to conclude that the state's religious corporation law grants the Archdiocese the authority to acquire and install mausoleums and monuments and to sell inscription rights. Newark Star-Ledger reports on the decision.