New Jersey Headstones

This case is about one of the most blatant violations of economic liberty in America. It vividly illustrates what is wrong with legislatures in New Jersey and across the country: governments passing anti-competitive laws just to line the pockets of industry insiders at the expense of the public.

The Roman Catholic Archdiocese of Newark, along with parishioners Emilio Mazza and Dennis Flynn, Sr., and the Institute for Justice have filed suit in federal court to challenge the constitutionality of an outrageous new law that makes it a crime to sell monuments, such as headstones, to parishioners. This law targets the Archdiocese, which is the only religious cemetery in the state selling headstones. The New Jersey Legislature passed the law in February 2015, and Governor Christie signed it on March 23, 2015.

The Monument Builders Association of New Jersey—the lobbying arm of the headstone-dealer industry—convinced the state legislature to pass this law after losing a lawsuit last spring against the Archdiocese. 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. After that ruling, the Monument Builders ran to the legislature begging for the self-serving new law.

The Monument Builders lobbied for this law to protect their own revenue at the expense of the Archdiocese and its parishioners. There is no public health or safety reason to limit who can sell headstones. There is no evidence that the Archdiocese harms its parishioners by selling them headstones. A headstone is just a rock (a beautiful rock with great symbolic value, but still just a rock). This law is simply about protecting the financial interests of the Monument Builders. It represents an abuse of public power for private gain.

On July 21, 2015, the Institute for Justice, the Archdiocese of Newark, Emilio Mazza, and Dennis Flynn, Sr., filed a federal constitutional lawsuit in the U.S. District Court for the District of New Jersey to defend economic liberty. The objectives of this case are to vindicate the rights of the Archdiocese and its parishioners, and to establish the principle that the government cannot pass a law solely for the private financial benefit of politically connected insiders. The legal precedent from this case will protect entrepreneurs and consumers everywhere.

The 11 Cemeteries of the Archdiocese of Newark

The Archdiocese of Newark was founded in 1853 as the Diocese of Newark. Pope Pius XI elevated the Diocese to an archdiocese in 1937. Although it is the smallest archdiocese in the U.S. geographically, the Archdiocese of Newark is one of the largest in terms of population, with nearly 1,300,000 Catholics and 219 parishes.

The Archdiocese operates 11 cemeteries. Under canon law, the church must provide consecrated ground for the interment of the faithful. The oldest cemetery dates to 1849. There are now nearly 1,000,000 people interred in its 763 acres, and approximately 5,800 people are added every year.

The cemeteries of the Archdiocese are private and available only to parishioners and their families. The cemeteries are not, nor have they ever been, open to the general public.[1]

There are three basic ways that the Archdiocese inters earthly remains, both bodies and cremated human remains. The first method is traditional, in-ground burial, which involves burial of the casketed body or cremated remains. A monument, such as a headstone, is then erected at the gravesite. The cost of a burial space ranges from $750 to $3,400, depending on what cemetery the parishioner selects, as well as where in the cemetery the interment will occur.

The second method is interment in a community mausoleum. A community mausoleum is a large above-ground structure with 2.5 x 2.5 x 8 foot spaces for caskets or smaller niches for cremated human remains. Once a mausoleum space is sealed, a marble front is attached bearing the name and dates of birth and death of the decedent (as well as other memorializing words and designs). This marble front serves the same purpose as the headstone in a traditional burial. The community mausoleum at Holy Cross Cemetery in North Arlington is the largest in the nation with 35,000 interment spaces. It is filled with artwork, including reclaimed stained glass from churches in the Archdiocese that have closed over the years. A space in a mausoleum costs between $4,500 and $40,000 depending on where in the mausoleum the remains will be interred.

The final method is interment in a private family mausoleum, which is a stone structure devoted to the remains of a specific family. A family mausoleum may contain both whole bodies and cremated human remains. The mausoleum bears the name of family, and each resting place within has additional memorializing information. The cost for the land and the private mausoleum ranges from $39,000 to hundreds of thousands of dollars depending where the mausoleum will be located and how elaborate the structure is.

Perpetual Care of the Cemeteries and the Inscription-Rights Program

The Archdiocese must care for its cemeteries in perpetuity. The Archdiocese sets aside at least 15 percent of the price of interring someone to ensure that funds are available to maintain the cemeteries forever.

Despite this, there are two major challenges to maintaining the cemeteries. The first is financial. As the cemeteries grow and age, the cost of maintaining them multiplies. The Archdiocese needs to steadily expand its revenue to fulfill its religious and contractual duties to care for its deceased parishioners.

The second challenge is legal. Traditionally, monuments such as headstones are the personal property of the families. The Archdiocese does not own the monuments. This creates serious problems as the 500,000 monuments in the cemeteries age. They start to fall apart or even fall over. Families usually do not provide for the long-term care of the monuments. Thus, even if the Archdiocese had the labor and resources to maintain all 500,000 monuments in perfect condition, it does not generally have the legal right to repair them.

They took comfort in knowing that by taking advantage of the inscription-rights program, they were not only supporting the mission of the Archdiocese, but also that the Archdiocese would care for the memorials in perpetuity.

Traditionally, the Archdiocese did not sell private mausoleums or monuments such as headstones. Instead, it sold only the right to be interred in the cemetery, even though it is common across the U.S. for cemeteries to sell headstones. Parishioners bought mausoleums and headstones from private monument dealers. In fact, monument dealers have set up shop right across the street from the Archdiocese’s cemeteries.

In 2006, the Archdiocese hit upon an innovation that it now calls its “inscription-rights program” to help ensure the funds necessary for the perpetual care of the cemeteries. Under the inscription-rights program, the Archdiocese provides the private mausoleum or headstone and inscribes it for parishioners. The Archdiocese, however, retains ownership of the monument. Importantly, the price of the “inscription right” includes not only the monument, its installation, and its inscription, but also an obligation by the Archdiocese to maintain the monument in perpetuity.

The inscription-rights program began in 2006 with private mausoleums. In 2013, the Archdiocese expanded the program to monuments such as headstones. Since 2006, more than 600 inscription rights have been sold for private mausoleums and monuments. The cost for a basic headstone under the inscription-rights program is about $1,200.

Parishioners love the inscription-rights program for three reasons. First, it is convenient. Parishioners can purchase their monument from the Archdiocese as part of the process of purchasing the right to be interred in the cemetery. Second, the funds from the inscription-rights program help ensure the perpetual maintenance of the monuments and the cemetery as a whole. Finally, the program gives parishioners another opportunity to support the mission of the cemeteries and the other charitable works of the Archdiocese.

Plaintiffs Emilio Mazza, of Edison Township, and Dennis Flynn, Sr., of Emerson, are two parishioners who have benefited from the convenience and superior service of the inscription-rights program. Faced with the unfortunate loss of family members, Emilio and Dennis used the inscription-rights program to acquire a private family mausoleum and headstone, respectively. They took comfort in knowing that by taking advantage of the inscription-rights program, they were not only supporting the mission of the Archdiocese, but also that the Archdiocese would care for the memorials in perpetuity.

The Monument Builders Association Sues the Archdiocese for Providing Parishioners with More Options, Greater Convenience, and Better Service

Shortly after the Archdiocese expanded its inscription-rights program to headstones in April 2013, John Burns—the president of the Monument Builders Association of New Jersey and the owner of monument businesses near the Archdiocese’s cemeteries—contacted Archdiocese officials to object to the inscription-rights program. He wanted the Archdiocese to stop providing headstones because of the impact that this innovation would have on private headstone dealers and his businesses. The Archdiocese respectfully declined to stop its program because it was so helpful to the church and its parishioners.

On July 11, 2013, the Monument Builders Association filed suit against the Archdiocese in New Jersey state court to stop the Archdiocese from selling headstones.[2] The Monument Builders argued that, under certain judicial decisions from the mid-1960s and earlier, it was “unfair” for a private religious cemetery to sell headstones because such cemeteries have a preexisting relationship with parishioners. In other words, the Monument Builders’ main argument was that the inscription-rights program was “unfair” because it provided parishioners with more options, greater convenience, and better service.

To make it even clearer that the lawsuit was simply about protecting industry revenues, not the public, when asked under oath whether only monument dealers should be able to sell monuments, John Burns testified, “I don’t think it’s their product to sell. I think it’s our product to sell.”[3]

The glaring defect in the Monument Builders’ legal argument was that it was not illegal for the Archdiocese to sell headstones to parishioners. The New Jersey legislature had never outlawed the sale of monuments by private religious cemeteries. The legislature comprehensively reorganized state cemetery law in 1971 and then again in 2003.[4] At neither time did the legislature prohibit cemeteries like those of the Archdiocese from selling headstones. In fact, private religious cemeteries are not subject to cemetery law at all.[5]

On May 7, 2014, the trial court issued its decision rejecting the Monument Builders’ claims in their entirety and entering final judgment in favor of the Archdiocese.[6] The judge ruled that there was no basis for the Monument Builders’ argument because New Jersey law did not prohibit the Archdiocese from selling monuments. The Monument Builders appealed. The state appellate court also rejected the Monument Builders’ argument, affirming the trial court on June 23, 2015.[7]

The Legislature Caves in to the Monument Builders Association

The Monument Builders lost their lawsuit against the Archdiocese because the Monument Builders foolishly sued the church for doing something that was perfectly legal. Unfortunately, rather than accept that in a free country the Archdiocese and its parishioners have the right to engage in productive commerce, the Monument Builders did what industry groups do far too often. The Monument Builders went to the legislature pleading for a law that would make it illegal for the Archdiocese to sell headstones.[8]

As also happens far too often, rather than send self-interested industry groups packing by rejecting their pleas for anti-competitive laws, the New Jersey Legislature caved. On December 18, 2014, the House voted 63 to 10 to prohibit the Archdiocese from selling headstones. [9]The Senate voted 27 to 4 for the prohibition.[10]

They did this despite the absence of any plausible evidence that the Archdiocese harmed any parishioner by providing a headstone as part of the inscription-rights program.

Governor Christie exercised a conditional veto on February 5, 2015.[11] He objected that the law would go into effect immediately, which would force parishioners who had already made prearrangements for their burial to make immediate changes to their end-of-life planning.[12] As a tiny concession in the face of the needless disruption and loss of liberty that this anti-competitive law would cause, Governor Christie asked the New Jersey Legislature to make the effective date one year from passage. That would allow elderly parishioners the time to go through the unnecessary inconvenience of making alternative arrangements.

The House (68-7) and Senate (31-2) adopted the Governor’s recommendation.[13] Governor Christie signed the new law on March 23, 2015.[14]

The Legal Challenge: Defending Economic Liberty

The Archdiocese, Emilio, and Dennis have brought constitutional claims under the Due Process, Equal Protection and Privileges or Immunities Clauses of the 14th Amendment, and the Contracts Clause of the U.S. Constitution.

The challenged restriction on headstone sales violates the Due Process, Equal Protection, and Privileges or Immunities Clauses because the government has no power to restrict economic liberty just to protect the private financial interests of an industry group like the Monument Builders. These clauses of the Constitution require every law restricting economic liberty to be related to a legitimate government interest, such as public health and safety.

Rather than protect parishioners, like Emilio and Dennis, the law harms them by stripping them of the freedom to make the choices they believe are right.

Private economic protectionism, however, is not a legitimate government interest. Instead, this egregious new law represents the abuse of public power for private gain. Rather than protect parishioners, like Emilio and Dennis, the law harms them by stripping them of the freedom to make the choices they believe are right. And the law does this simply to funnel money from parishioners into the wallets of the Monument Builders.
This challenge to private economic protectionism is the latest in the Institute for Justice’s groundbreaking litigation defending the constitutional right to economic liberty. As the national law firm for liberty, the Institute has already secured important victories in both the 5th and 6th U.S. Circuit Courts of Appeals, where anticompetitive regulations were struck down by the courts as unconstitutional.[15] Most recently, the Institute represented the casket-making monks of Louisiana in their successful constitutional challenge to an anti-competitive state law that made it a crime for anyone but a state-licensed funeral director to sell a casket. In reaching these decisions, the 5th and 6th Circuits, which have also been joined by the 9th Circuit, have ruled that the government cannot pass laws simply to benefit politically connected insiders.

Unfortunately, not all courts agree that government cannot impose regulations solely to further private economic protectionism. The 10th U.S. Circuit Court of Appeals approved the handing out of economic privileges to favored groups and described it as the “favored pastime” of state and local governments.[16] In ruling this way, the 10th Circuit is continuing a trend, established by the U.S. Supreme Court, of treating economic liberty as a second-class right under the Constitution. A major objective of the Institute’s economic-liberty litigation is to convince the judiciary that all of our constitutional rights—including the right to earn an honest living—should receive meaningful judicial protection.

This challenge has the potential to go all the way to the U.S. Supreme Court to resolve the disagreement about whether private economic protectionism is a legitimate use of government power. The 3rd U.S. Circuit Court of Appeals, the federal appellate jurisdiction within which this case is filed, has yet to weigh in on the legitimacy of economic protectionism. The Archdiocese’s challenge to New Jersey’s rank favoritism toward influential industry insiders will force the 3rd Circuit to take sides in this important legal debate about economic protectionism while positioning the issue for possible review at the Supreme Court.

The law also violates the Contracts Clause, which forbids states from passing laws that impair existing contracts unless there is a good reason to do so. Here, the new law forbids the Archdiocese from owning monuments, which means that the Archdiocese can no longer retain ownership of the monuments that it presently owns under the roughly 600 preexisting inscription-rights contracts. Nor, under the new law, can the Archdiocese remove, replace, reinstall and re-inscribe damaged monuments.

The Plaintiffs

The Plaintiffs are the Archdiocese of Newark, Emilio Mazza and Dennis Flynn, Sr. and the seat of the Archdiocese is the Cathedral Basilica of the Sacred Heart in Newark, New Jersey. Besides ministering to the needs of its parishioners and operating the cemeteries, the Archdiocese operates many educational and charitable programs. Emilio Mazza and Dennis Flynn, Sr., are parishioners of the Archdiocese that have used the inscription-rights program to memorialize their loved ones.

The Defendants

Defendant Christopher Christie is the Governor of New Jersey. He is being sued in his official capacity. Defendant John Jay Hoffman is the acting Attorney General of New Jersey. He is also being sued in his official capacity.

The Litigation Team

The litigation team consists of Institute senior attorney Jeff Rowes and attorney Greg Reed. They will be assisted by Shalom D. Stone of Brown Moskowitz & Kallen, P.C. Founded in 1991, the Institute for Justice is the national law firm for liberty. It has repeatedly[17] vindicated the right[18] to economic liberty[19] across the country in the face of arbitrary government regulations and economic protectionism.

For more information, please contact:
Shira Rawlinson
Assistant Director of Communications
Institute for Justice 901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 229
[email protected]

1] There are a tiny number of Coptic Christians interred at Holy Name Cemetery. The Copts in New Jersey comprise a small community that fled religious persecution in their native Egypt. The Coptic community is not large enough to sustain its own cemetery. The Archdiocese allowed the Copts to be interred at Holy Name because the Copts share the same basic doctrinal beliefs. According to Roman Catholic discipline, the Code of Canon Law does not object to the reception of Communion by Christians of Orthodox Churches such as the Coptic Christians. The Archdiocese wanted, as an act of religious fellowship, to enable the Copts to be interred in consecrated ground.

2] Complaint and Amended Complaint on file with the Institute for Justice.

3] Trial transcript on file with the Institute for Justice.

4] N.J. REV. STAT. § 45:27 et seq.

5] N.J. REV. STAT. § 45:27-2.

6] Letter Opinion and Order on file with the Institute for Justice.

7] Decision is on file with the Institute for Justice.

8] An Act Concerning Certain Religious Entities and Supplementing Chapter 1 of Title 16 of the Revised Statutes, Assemb. Bill. 3840, 2014-2015 Sess. (N.J. 2015), http://www.njleg.state.nj.us/2014/Bills/PL15/30_.PDF.

9] http://www.njleg.state.nj.us/bills/BillView.asp.

10] http://www.njleg.state.nj.us/bills/BillView.asp.

11] Governor Chris Christie Takes Action on Pending Legislation, OFFICE OF THE GOVERNOR, Feb. 5, 2015, http://www.state.nj.us/governor/news/news/552015/approved/20150205b.html.

12] http://www.njleg.state.nj.us/2014/Bills/A4000/3840_V1.PDF.

13] http://www.njleg.state.nj.us/bills/BillView.asp.

14] Governor Chris Christie Takes Action on Pending Legislation, OFFICE OF THE GOVERNOR, Mar. 23, 2015. http://www.state.nj.us/governor/news/news/552015/approved/20150323g.html.

15] St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002).

16] Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004). https://ij.org/saint-joseph-abbey-et-al-v-castille-et-al. https://ij.org/utah-hairbraiding. https://ij.org/craigmiles-v-giles.

17] https://ij.org/saint-joseph-abbey-et-al-v-castille-et-al.

18] https://ij.org/utah-hairbraiding.

19] https://ij.org/craigmiles-v-giles.