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"Pending Decision in Cemetery Case to Set Standards for Religious Freedom in Florida"
December 2002 Edition of the ACLU of Florida Newsletter
By Alessandra Soler Meetze
Communications Director
In an unprecedented class action lawsuit likely to set standards for religious freedom in Florida, hundreds of Boca Raton residents are challenging the municipal cemetery's ban on vertical monuments and decorations at the gravesites of their loved ones.
The ACLU case, now before the Florida Supreme Court, is the first test of Florida's Religious Freedom Restoration Act (RFRA), approved by the Florida legislature in 1998. The RFRA requires state government officials to demonstrate a compelling state interest before taking any actions that might burden the "free exercise of religion" of individuals.
At issue for the High Court to decide is whether the act of using religious symbols to memorialize gravesites constitutes an "exercise of religion .... that is substantially motivated by a religious belief" and if such conduct is affirmed in a religious or sacred text. The court also must weigh whether the city is justified in passing a law that prohibits people from exercising their religious beliefs as they see fit.
Lawyers for the City of Boca Raton argue that these religious practices are personal to the plaintiffs, not universal among Christians or Jews, and therefore do not deserve legal protection.
In its brief to the Florida Supreme Court, the ACLU argues that courts should not be "arbiters of religious orthodoxy," permitted to interfere with believers' religious practices.
"In an attempt to water down religion, the city is dictating how family members can mourn the passing of loved ones based on their own secularized interpretation of Christianity and Judaism," said ACLU cooperating attorney Jim Green of West Palm Beach.
Governor Jeb Bush filed a friend-of-the-court brief with the Florida Supreme Court, siding with the position taken by the ACLU.
For more than a decade, the plaintiffs, with the permission of the cemetery, have decorated the grave sites of their family members with vertical religious symbols, including crosses, statues of Jesus and Stars of David. According to ACLU legal papers, many of the Jewish plaintiffs covered the graves "in observance of a Jewish tradition that grave sites are to be protected and never walked upon." The Catholic plaintiffs placed statues of Jesus or the saints, while some of the Christians covered the graves, also believing that graves are not to be walked on.
In late 1997, the City of Boca Raton notified the plaintiffs that all vertical religious symbols had to be removed from the gravesites by January 15, 1998. Flat markers, city officials said in news reports, make it easier for workers to cut the grass and dig holes for graves. That same month, the ACLU filed suit, alleging the restrictions violated speech and religious free exercise clauses of the state and federal constitutions. On March 31, 1999, just days after the trial was held, a federal judge ruled for the city and held that the prohibition against vertical grave markers did not violate plaintiffs' constitutional rights or the Florida RFRA.
The ACLU appealed that decision and in May 2001 argued the case before the 11th Circuit U.S. Court of Appeals. The federal appeals court then certified the Florida RFRA question to the Florida Supreme Court for interpretation.
In addition to Green, the plaintiffs also are represented by Palm Beach County attorneys Lynn Waxman, Charlotte Danciu and University of Texas Law Professor Douglas Laycock.
