Supreme Court Denies Cert. In Challenge to Indiana Fetal Remains Law

The U.S. Supreme Court on Monday denied review in Jane Doe No. 1 v. Rokita, (Docket No. 22-951, certiorari denied 5/1/2023) (Order List). In the case, the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. (See prior posting.) The case Docket with links to filings in the Supreme Court is here.  AP reports on the Court's action.

Massachusetts Supreme Court: Church May Relocate Cremated Remains Over Objection of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA Sup. Jud. Ct., March 14, 202), the Massachusetts Supreme Judicial Court rejected claims by families attempting to prevent the disinterment and relocation of cremated remains sought by a church in order to facilitate the sale of its churchyard property. The court said in part:

This case concerns the scope of rights conveyed by a set of burial certificates, as sold by a church to its parishioners. After dwindling membership compelled the Church of the Holy Spirit of Wayland ... to close and sell its property, do the certificates permit the church to disinter and relocate the cremated remains buried on that property despite the objections of the decedents' families?

Although we acknowledge the sensitive -- even sacred -- nature of the subject matter of this dispute, we conclude that the burial certificates' unambiguous language permits the disinterment and that no common-law right held by the families prevents it.

Jewish Congregation Sues for Return of Deeds To 5000 Burial Plots

 An unusual suit was filed this week in a New York state trial court by a Bukharian Jewish religious organization which is seeking to recover nearly 5,000 burial plot deeds that the organization says belong to it. The complaint (full text) in Bukharian Jewish Community Center v. Nektalova, (NY County Sup. Ct., filed 12/6/2022) alleges that United Bukharian Congregation holds cemetery documents in trust for members of the Bukharian Jewish community in New York. One of its members, 92-year old Roman Nektalov, was in charge of providing the relevant deeds to cemeteries and families when funerals of members were being arranged.  During COVID, Nektalov took the deeds to his home so he could distribute them from there. A domestic dispute arose between Nektalov and his wife. His wife obtained a protective order which prevents Nektalov from accessing the deeds in his home. She later filed for divorce and refuses to turn the deeds over to the religious organizations, claiming that they are marital property. The Jewish organizations ask the court to hold that they are the rightful owners of the deeds, and to order them turned over to them or to a receiver. AMNY reports on the lawsuit. [Names in post corrected]

7th Circuit: Law on Disposal of Fetal Remains Does Not Violate 1st Amendment

In Doe v. Rokita, (7th Cir., Nov. 28, 2022), the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. The suit was brought both by two women who raise free exercise claims and by two physicians who oppose the requirement that they inform patients of the law's provisions. The court said in part:

[N]either of the two plaintiffs who has had an abortion contends that a third party’s cremation or burial of fetal remains would cause her to violate any religious principle indirectly. What these two plaintiffs contend is that cremation or burial implies a view—the personhood of an unborn fetus—that they do not hold. They maintain that only human beings are cremated or buried. This is questionable. Dogs, cats, and other pets may be cremated or buried, sometimes as a result of legal requirements not to put animals’ bodies in the garbage,,,,. Indiana’s statute about fetal remains therefore need not imply anything about the appropriate characterization of a fetus. At all events, a moral objection to one potential implication of the way medical providers handle fetal remains is some distance from a contention that the state compels any woman to violate her own religious tenets....

As for the requirement that physicians and other providers tell patients about the statutory options: no one contends that the required notice is false or misleading....

The norm that units of government may require physicians (and other professionals) to provide accurate information to their clients long predates Casey and has not been disturbed since...

Church Cannot Remove Cremated Remains Over Objections Of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA App., May 5, 2022), a Massachusetts state appellate court held that a church which had sold its property was not free to relocate cremated remains buried in its churchyard over the objections of families of those buried there. In the case, an Episcopal parish that had ceased operating sold it church building and attached burial ground to a Coptic church.  The Coptic church wanted to develop the land; it also had religious objections to cremation. The court said in part:

[I]n the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such....

It is uncontested that the Coptic church has a sincerely held opposition to cremation on religious grounds. The next question, however, is whether judicial relief in favor of the families would substantially burden the Coptic church's exercise of its religious beliefs.... [W]e fail to see how a judicial order preventing the Coptic church from removing those remains would constitute government interference with that church's free exercise of religion rights. And it bears noting that the unilateral disinterment of the remains potentially might implicate the families' own free exercise of religion rights.

The court also concluded that allowing two parties who had purchased burial rights for their own remains to be buried in the churchyard next to remains of their families would not infringe the free exercise rights of the Coptic church:

[I]t simply would prevent the Coptic church from interfering with rights that the individuals themselves hold in the property. Nor has the Coptic church demonstrated that such a judicial order could be seen as compelling it to endorse cremation.

Litigation Between Indian Tribes Over Burial Sites Dismissed On Sovereign Immunity Grounds

In Muscogee (Creek) Nation v. Poarch Band of Creek Indians, (MD AL, March 15, 2021), the Creek Nation-- an Indian tribe that was forced into Oklahoma in the 1830's from its original location in Alabama-- sued the Poarch Band of Creek Indians (PBCI) as well as federal officials over a casino and hotel which PCBI built on land in Alabama that contained ceremonial grounds and burial sites that once belonged to the Creek Nation. The court held that the claims against PCBI and its officials are barred because of sovereign immunity. Because the tribe or its officials are an indispensable party to the litigation, the other defendants were also dismissed. The court added:

A narrower suit seeking more limited relief--such as the return of the bodies and funerary objects buried at Hickory Ground to the descendants of the deceased--may not trigger the same sovereign interests that preclude this litigation from proceeding, particularly if such a suit were directed at specific tribal officials responsible for PBCI’s ongoing control of those bodies and artifacts.

Indiana Fetal Tissue Disposition Law Challenged Again

Suit was filed last week in an Indiana federal district court challenging the constitutionality of Indiana's statutes that require healthcare facilities to dispose of embryonic and fetal tissue from abortions and miscarriages by burial or cremation, regardless of patients’ wishes. The complaint (full text) in Jane Doe No. 1. v. Attorney General of Indiana, (SD IN, filed 12/21/2020), alleges in part:

The Tissue Disposition Laws violate fundamental tenets of the First and Fourteenth Amendments by compelling abortion and miscarriage patients—and their healthcare providers— to act in accordance with the State’s view of personhood—namely, that an embryo is the ontological and spiritual equivalent of a person—regardless of their own opinions about the status of developing human life. Indiana’s effort to create orthodoxy on a deeply polarizing issue that implicates the most profound aspects of religion, culture, and ideology is constitutionally prohibited.

The U.S. Supreme Court in 2019 (without hearing oral argument) upheld the Indiana tissue disposition laws in a case which did not raise the constitutional challenges put forward in this complaint. (See prior posting.) Christian Headlines reports on last week's filing.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”... 

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held. 

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch.... 

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.