Archdiocese of Newark Sues New Jersey Over Headstone Law

Arlington, Va.—Can the government restrict economic liberty just to protect politically-connected insiders? That question is at the center of a landmark constitutional challenge filed today in federal court by the Roman Catholic Archdiocese of Newark, two of its parishioners and the Institute for Justice. Previously, IJ successfully represented the monks of Saint Joseph Abbey in their challenge to Louisiana’s casket-sales law.

The lawsuit challenges New Jersey’s outrageous new law that makes it illegal for the Archdiocese to sell headstones to parishioners. The New Jersey Legislature passed this law at the behest of the Monument Builders Association of New Jersey, the lobbying arm of the headstone-dealers industry.

The Archdiocese has been embroiled in a dispute with the Monument Builders Association of New Jersey, which convinced the state Legislature to pass this lawafter losing a different lawsuit against the Archdiocese last spring. In 2013, the Monument Builders sued the Archdiocese in state court, arguing that it was “unfair” for private religious cemeteries to sell headstones, but lost because it was not illegal for the Archdiocese to sell headstones to people being buried in its cemeteries. This new lawsuit seeks to overturn the law, which was passed in the spring, explicitly making it against the law to simply sell a headstone.

“A headstone is just a beautiful rock and there is no legitimate reason to restrict who can sell one,” explained IJ Senior Attorney Jeff Rowes. “This attack on the economic liberty of the Archdiocese is one of countless examples from across the country of how special interests and lawmakers conspire to clobber consumers and drive up prices. We are willing to go all the way to the U.S. Supreme Court to fight this,” he added.

A few years ago, the Archdiocese began what it calls the “inscription-rights program” in which the church provides the monument, inscribes it according to the wishes of the parishioner, and still retains ownership of the headstone so that the church can maintain it in perpetuity. By selling headstones as part of the inscription-rights program, the Archdiocese can better care for the nearly 1,000,000 people at rest in its cemeteries.

“Our parishioners value and appreciate the convenience of monument planning with us and understand that obtaining their headstone through us contributes to the long-term well-being of the headstone, the cemetery, and the Archdiocese as a whole, a perpetual institution,” said Andrew Schafer, the executive director of Catholic Cemeteries, a ministry of the Archdiocese of Newark. “With this new law the countless families who entrust us to bury their loved ones and protect their sacred ground now must purchase memorials elsewhere.”

The challenged law raises one of the most important unsettled questions in constitutional law: Can the government use public power solely for private gain? A victory for the Archdiocese will set a precedent preventing other industry cartels from conspiring with legislators to pass anti-competitive laws that hamstring entrepreneurs and drive up costs for consumers.

“Legislatures across the country cater to special interests at the expense of the public because courts have not been vigilant of enforcing our constitutional right to economic liberty,” said Institute for Justice Attorney Greg Reed. “The Archdiocese intends to make it clear that Americans everywhere have a right to engage in productive commerce and this right cannot be stripped away by special-interest legislation.”

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