Law Banning Monument Sales by Archdiocese Takes Effect

The Archdiocese of Newark must shut down its cemetery inscription-rights program due to a law that goes into effect today that makes it illegal for all religious cemeteries in New Jersey to sell headstones or monuments to its parishioners. The law, signed one year ago by Gov. Chris Christie, was passed solely to protect politically connected local businesses that lobbied for protection from competition. The Archdiocese is currently challenging the law in federal court. 

“We have dreaded this day for a year,” said Andrew P. Schafer, executive director of the Archdiocese’s Office of Catholic Cemeteries. “This new law protects only the interests of funeral directors and monument dealers while eliminating the rights of the families we serve and our ministry. Parishioners value and appreciate the inscription-rights program. It is convenient to purchase with cemetery interment rights, the funds help ensure permanent monument and cemetery care, and it supports the mission of Catholic Cemeteries, a perpetual institution. Most important, it ensures the integrity and care of a loved one’s memorial forever. Their memorial headstone is a statement of faith for generations to come.”

The Archdiocese began to provide cemetery monuments through its Office of Catholic Cemeteries as part of its inscription-rights program 10 years ago. Under the program, the Church retains ownership of the monument and maintains it in perpetuity, ensuring its care and upkeep. However, when a parishioner buys a monument from a private dealer, the monument becomes the parishioner’s property – and any damage due to aging, weather and so forth becomes the parishioner’s responsibility. Until today, the Archdiocese offered monuments and their preservation to ensure that its cemeteries remained safe, well tended and respectful of the deceased in perpetuity.

New Jersey monument dealers did not like competition from the inscription-rights program and sued the Archdiocese in 2013 to shut down its program. That lawsuit failed because it was not illegal at that time for the Church to sell monuments. The monument dealers then turned to the Legislature in late 2014 to stamp out any competition. The New Jersey Legislature outlawed the Church’s practice despite the lack of any public threat. Governor Christie signed the law on March 23, 2015, and it goes into effect today.

The Archdiocese, along with two of its parishioners and the Institute for Justice, challenged the law in federal court in July 2015, arguing that banning the Church’s monument sales was unconstitutional because the prohibition was designed to protect politically connected insiders, not the public. The state sought to dismiss the lawsuit and that motion remains pending.

“The Archdiocese is fighting back because the government can’t ban harmless commerce just to make industry insiders better off at the expense of the public,” said Jeff Rowes, a senior attorney with the Institute for Justice, which represents the Archdiocese. “We expect the federal court to rule soon that our legal challenge can go forward, and we will then establish that the U.S. Constitution doesn’t allow New Jersey to shut down the Church’s innovative inscription-rights program just to make private monument dealers wealthier.”

This case has the potential to change the law beyond the issue of selling cemetery monuments. Neither the federal trial court in New Jersey nor the 3rd U.S. Circuit Court of Appeals has weighed in on whether the Constitution allows the government to pass laws just to protect favored businesses from competition.

“This case presents one of the most important unresolved questions in constitutional law. Federal courts across the country disagree over whether private economic protectionism is constitutional and that issue will be presented for the first time within the 3rd Circuit in our case here,” said Greg Reed, an attorney with the Institute for Justice and co-counsel for the case.

“It is with great disappointment today that due to this unconstitutional law we can no longer provide this much-needed and requested service,” added Schafer. “We are not giving up without a fight because the legacy of our parishioners is at stake.”