Monday, April 20, 2015

NJ Takes Churches out of Headstone Business

Last month, Governor Chris Christie signed a bill that bars all religious groups that own or manage a cemetery from selling headstones and family crypts. The law also prevents religious groups from owning funeral homes and mortuaries. The new law chiefly affects the Roman Catholic Archdiocese of Newark. The Archdiocese of Newark is the largest single provider of in-ground burials in New Jersey and after entering the headstone business two years ago, the Archdiocese of Newark has become a major source of competition for the New Jersey headstone business community as their market share has grown to 36%.

The Monument Builders of New Jersey heavily lobbied the New Jersey legislature to enact legislation which would give monument builders a level playing field. The president of the trade association, John Burns Jr., insisted that private firms could not compete with tax-exempt groups like churches. Burns claimed that within the first 18 months that the archdiocese started selling headstones, some of his colleagues saw business drop off by 40% and that without this law, the archdiocese would develop a monopoly on the market.

I believe that the archdiocese or any other religious group interested in producing headstones has grounds to file a lawsuit against the state of New Jersey over this headstone law as it violates the Free Exercise Clause of the First Amendment. The law is not neutral towards religion, both facially and in practice. The law could have attempted to convey neutrality by barring and nonprofit organization who owns a cemetery from selling headstones but the language of the law plainly says that it is specifically targeting groups that are religious. It appears that secular organizations who could have similar tax benefits as churches would be able to market headstones without any restrictions.

While the facial discrimination towards religious groups is enough for a court to justify striking down this law, some might argue that this law is in fact neutral because is facially neutral towards all religion. While the law imposes the same limits on all religious groups, the law in practice targets religions who hold in-ground burials in high regard like Catholicism. While the trade association expressed concern that any religious group could participate in the headstone business, their main concern was immediately stopping just one group in the Archdiocese of Newark. If the Supreme Court eventually hears a case involving this law, they would do well to follow the president set in Church of Babalu v. Hialeah where the city of Hialeah passed a law outlawing unnecessary killings of animals in public or in private as a part of a ritual. This law was not passed until the church leased land in the city and the public demanded that legislation prohibiting animal sacrifice be passed. Writing for the majority opinion, Justice Kennedy asserted that Haileah’s law was not neutral and therefore should be subjected to rigorous scrutiny and would need to be justified by a compelling state interest.

In Church of Babalu v. Hialeah, the Court ultimately did not buy the city’s argument that there was a compelling state interest to reduce unnecessary animal death since multiple provisions were made to allow animal eradication by private companies. Ultimately, it was a case where one minority religion’s religious practice was targeting by the majority. Like Church of Babalu, I don’t think New Jersey has a compelling enough state interest to justify passing such an unneutral law. The law is narrowly tailored so that it only acts on behalf of the Monument Builders of New Jersey. The law does not attempt to prevent religious groups or nonprofit groups in general from participating in business practices in general but only specifically in headstones and funeral homes. This law is not at all neutral towards religion and is not designed with a clear compelling state interest and therefore is not constitutional.

Is New Jersey’s law constitutional? Should religious groups be able to compete with other firms? Please share your thoughts in the comment section below.

7 comments:

Adam Drake said...

I understand and agree with the intentions of this law. Churches are tax exempt and used this advantage to monopolize the headstone market. Although the intentions of the law were good, I agree with Peter in that this law unfairly discriminates against religion. It isn't even facially neutral. That being said, I would not be opposed to Churches possibly being compelled to give up a portion of their tax exempt status in order to compete in the market. Otherwise, they could sell headstones at much cheaper prices. I don't believe that this would adversely affect the church because most people who are religious in nature probably view buying their headstone from a church as the better option for religious reasons. The Church would not lose its advantage, but would not completely monopolize the market as it would by keeping complete tax exemption.

Nate Hunter said...
This comment has been removed by the author.
Nate Hunter said...

I think that there is definitely a compelling state interest for the government in this case. Their interest would be to shut down the church's monopoly over the sale of headstones, as they are clearly using their religious tax exemption to undercut other businesses which gives them complete control of the market. I don't think disallowing their ability to sale is a just response however. As Adam pointed out, there is certainly a middle ground that can be found, and I think that working around with their tax exempt status would be the only solution. Now clearly religious groups take their tax exemptions very seriously, and I wouldn't even know if the government could touch it in a situation like this, so if that is the case it is either all or nothing. Without the ability to alter tax exempt status in certain occasions, the government either allows them to continue their selling of the headstones or shuts it down completely. So in that case I would say the right decision was made, as I don't think the church should be able to manipulate their tax exempt status to monopolize a market for their personal and primarily economic benefit, especially considering it is supposed to be non-profit in the first place.

brian regan said...

I agree that this law is not facially neutral. which makes it hard to justify from the start. Also, I believe a third party (citizens organizing funerals for loved ones) can make a strong case here for a violation of their free exercise. In my view, funeral's are private matters in which citizens have the right to express their faith, even with religious tombstones if they choose. The state should not be able to take that away from them because a secular business is being burdened. Also, I doubt many nonreligious people are going out to buy religious tombstones just because they can get a better price. However, I do recognize the compelling state interest here to not allow a monopoly to form. Therefore, I agree with Adam's idea that if religious groups want to compete with secular groups in business they must forfeit a portion of their tax exemption.

Ana M. said...

I agree that this law is not taking a neutral side in terms of religion. By taking religious organizations out of business, the state has shown a secular preference. In addition, the state has also deprived individuals from choosing a religious organization.

Nina N. said...

I would definitely agree with what Nate has said. While Adam makes a good point, I think altering the status of a tax exempt church could is politically infeasible and would not happen any time in the near future. That being said, it can definitely be interpreted that this new initiative is unconstitutionally targeting religious groups. But at the same time, it can also be viewed as restoring some balance towards perhaps an indirect preference of religious non-profits. This religious organization has turned into more of a business and it does not seem fair to secular institutions to allow a religious group such an economic advantage when they're all competing in the same arena.

Morgan M said...

I agree with the comments that Drake and a few others made. This law, while clearly not neutral in practice, it trying to uncut the issue that these Churchs have a massive advantage over their secular counterparts. By having the tax exempt status, they are able to undermine the market and more cheaply sell the headstones. That being said, I do no think that they should be completely excluded from the market either. Many people would probably rather spend their money with the church for a headstone if someone who was practicing that religion had died. Thus, I do not think that the law is constitutional in practice and as such should not be enacted.