|
Washington Report
September 2002
Court Blocks Injunction Prohibiting
Cemetery from Removing Flags
by Robert M. Fells, Esq., general counsel
A Massachusetts appeals court vacated a lower court's preliminary injunction that had prohibited a cemetery from removing American flags placed on grave sites.
In Westfield Veterans Council v. Diocese of Springfield, St. Mary's Cemetery in Springfield, Massachusetts, has a policy of allowing flags to be placed on graves for seven days prior to and following Memorial Day and Veterans Day.
A local veterans group objected to the removal of the flags after seven days, alleging that such a policy
violated constitutional rights of free expression. The cemetery cited maintenance and safety concerns to justify the regulation. However, the lower court granted the veterans group a preliminary injunction prohibiting the cemetery from removing any of the flags on the 1,600 grave sites until trial.
In vacating the injunction, the appellate judge noted that "the laws governing cemeteries and burials ... distinguish between private cemeteries and public cemeteries." The court held that a private cemetery "may limit what is said in a grave marker, what sort of grave markers are used, and what is acceptable as grave decor. In the absence of a right of expression by family members in connection with the graves of their loved ones, there is no basis for this injunction. There is no need to consider the reasonableness of the regulation, the rights of religious organizations to manage their own affairs, the reasonableness of the Diocese's rule, nor the balance of harms."
Interestingly, the court noted that "an appellate court, let alone a single justice of one, will not interfere with a preliminary injunction if there is a supportable basis for the trial court's action, even if, on final analysis it may prove to be mistaken. For the reasons stated, I do not think there is a supportable basis for the preliminary injunction."
The veterans group has filed an appeal to restore the injunction.
Copyright ICFA 2002
Online Casket Sales Are Focus of New FTC Hearings |
