Federal Judge Upholds Protectionist New Jersey Headstone Law

Institute for Justice · February 23, 2018

Arlington, Va.—Today, a federal district court judge upheld New Jersey’s protectionist law banning religious cemeteries from selling headstones. The Archdiocese of Newark, which had developed an innovative program to provide and maintain parishioners’ headstones in perpetuity, teamed up with the Institute for Justice (IJ) in 2015 to file a constitutional challenge to the law.

The case centers around the Archdiocese’s “Inscription Rights Program.” Under this innovative program, the Archdiocese began offering headstones to its parishioners in 2013. As part of this purchase, the Archdiocese promised to care for the monument, including replacing it when necessary, in perpetuity, something no headstone dealer offered. The optional program became popular, drawing the ire of private headstone sellers who originally filed an unsuccessful lawsuit in state court arguing that New Jersey law banned religious cemeteries from competing with them.

After losing in court because the Inscription Rights Program was legal, the Monument Builders of New Jersey and their ally, the New Jersey State Funeral Directors Association, turned to Trenton to outlaw the program. Their lobbyists drafted and convinced the Legislature to pass a blatantly protectionist law banning religious cemeteries from providing monuments to their parishioners. Governor Christie signed the bill into law in 2015, leading to the Archdiocese’s constitutional challenge.

“A headstone is ultimately just an inscribed rock and its sale by a church to its own parishioners doesn’t raise any valid consumer protection concerns,” said IJ Senior Attorney Jeff Rowes. “The government’s consumer protection argument is just a smokescreen for the true purpose and effect of this law: protecting the private financial interests of the headstone and funeral director industries.”

“Economic protectionism is not just wrong, it is unconstitutional,” said IJ Senior Attorney Justin Pearson.

“Economic liberty depends on courts protecting the right to earn an honest living free of regulations, like the New Jersey headstone sales ban, that don’t protect the public, just the financial interests of an influential few,” said IJ Attorney Greg Reed. “Until courts enforce economic rights the way they enforce other rights, we can expect special interests to continue to have their way in legislatures across the country.”