Washington Report 112004

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

Florida Supreme Court Says Cemetery's Marker Regulations Do Not Violate Religious Freedom Law

by Robert M. Fells, Esq., general counsel
In a long-awaited decision, the Supreme Court of Florida announced that a cemetery's regulations that restrict the type of grave markers and memorials permitted did not violate the state's freedom of religion statute. The case, Warner v. City of Boca Raton, involved the city's municipal cemetery that permitted only flat, ground-level markers and decorations.
A group of lot owners brought an action in federal district court claiming that the cemetery's restrictions against upright or vertical memorials violated their state and federal rights to freedom of expression, freedom of speech and due process of law. The federal District Court found in favor of the city cemetery in its 1999 decision. The lot owners appealed to the U.S. Court of Appeals for the 11th Circuit.
The federal appellate court certified two questions to the Florida Supreme Court concerning whether the cemetery regulations on markers violated the Florida Religious Freedom Restoration Act of 1998. At that point, the ICFA intervened as a third party by filing an amicus curiae or "friend of the court" brief with the state Supreme Court in support of the cemetery's legal right to generally regulate the type and size of markers, memorials and monuments it permits in its cemetery, regardless of whether the requirements favor flat, vertical or some combination of these types of memorials.
The ICFA brief urged the court to uphold the cemetery's regulations, stating: "If individual lot owners become entitled to ignore cemetery regulations to do whatever they wish in the name of religious beliefs, they would effectively disenfranchise the rights of all the other lot owners and undercut the cemetery's ability to properly manage its grounds, resulting in a chaotic cemetery environment."
Subsequently, the court's ruling held that the cemetery regulations "on the manner in which religious decorations may be displayed merely inconvenience the plaintiffs' practice of marking graves. ... The prohibition on vertical grave decorations does not substantially burden the plaintiffs' exercise of religion within the meaning of the Florida [law]."
Although the case will be returned to the federal Appeals Court where, presumably, the state court's decision will be followed, plaintiffs have a motion with the Florida Supreme Court asking it to reconsider its decision. The federal Appeals Court must still determine whether the plaintiffs' federal constitutional rights have been violated by the cemetery regulations.
To read the state Supreme Court's decision and the ICFA amicus brief, go to /sites/default/files/amicus_brief.pdf

Virginia State Funeral Board Settles Restraint of Trade Charges With FTC

The Federal Trade Commission voted in early October to finalize a consent order it had announced during the summer with the Virginia Board of Funeral Directors and Embalmers.
The board agreed to settle charges that it violated federal law and restrained trade by prohibiting funeral directors licensed in Virginia from advertising discounts for preneed funeral plans. The FTC alleged that the board's regulation
"1) deprived consumers of truthful information about prices for funeral services;
2) prevented funeral licensees from disseminating truthful information about the prices;
3) deprived consumers of the benefits of price competition among board licensees; and
4) resulted in some consumers paying higher prices for funeral services than they would have if the regulation had not been implemented."
The board regulation stated in part:"No licensee engaged in the business of preneed funeral planning ... shall advertise discounts; accept or offer enticements, bonuses, or rebates; or otherwise interfere with the freedom of choice of the general public in making preneed funeral plans."
The FTC order bars the state board from prohibiting or restricting truthful price advertising and requires the board to publish the FTC's order on its Web site and in its newsletter, and to deliver a copy to each board licensee. For more information, see the FTC Web page at www.ftc.gov/opa/2004/08/vafuneral.htm