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Washington Report
November 2004
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 www.icfa.org/government.htm.
Copyright ICFA 2004
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