Federal judge upholds Florida city ban on unwieldy grave decorations

Friday, April 2, 1999

City officials in Boca Raton, Fla., can force the removal of large, cumbersome and gaudy decorations at a public cemetery, a federal judge has announced.

U.S. District Judge Kenneth Ryskamp said on March 31 that he would issue a written decision supporting a city ordinance that limits the types of markers that can be erected at the Boca Raton Municipal Cemetery.

For years decorations and religious shrines were permitted in the city-run cemetery. The city council, however, decided in 1997 to ban decorations after a survey showed most plot owners were disgusted with the elaborate and often gaudy displays. Moreover, the city maintains the decorations make it harder to mow the cemetery lawn and make room for more graves.

In early 1998 the state affiliate of the American Civil Liberties Union, representing several Boca Raton families, sued the city arguing that removal of the decorations and religious symbols would subvert the families' religious-liberties. The city announced weeks later that it would not enforce the cemetery ordinance during the litigation. Nonetheless, the city maintains that its ordinance applies to all people and does not substantially interfere with anyone's religious beliefs or practices.

“The regulations are facially neutral,” Beverly Pohl, one of the city's attorneys, said when the suit was filed. “They don't say anything about prohibiting religious expression. There may be some incidental burdens caused by the regulations, but those do not amount to an infringement of religion.”

The Florida ACLU, which is now representing more than 100 families in Warner, et al. v. The City of Boca Raton, steadfastly maintains that the ordinance does infringe on religious-liberty rights and that a newly enacted state law makes it tougher for government to enforce laws that infringe on religious liberties.

Last year the Florida Legislature, at the behest of a coalition of organized religions and civil rights groups, passed the Religious Freedom Restoration Act. The act requires courts to apply a rigid constitutional test to government actions and laws that might infringe on a person's or group's religious practices. Specifically the law states that the government must show a “compelling interest” in any law or action that substantially infringes on a person's free exercise of religion. Moreover, the government must show that its action or law is applied in the “least restrictive means” possible. If it cannot meet those standards, then religious objectors must be granted an exemption.

The Florida act mirrors the federal version that was invalidated by the U.S. Supreme Court in 1997 in Boerne v. Flores. The high court concluded, in part, that Congress could not tell the judiciary what constitutional test to use when deciding religious-liberty cases. Although the Florida law was enacted with great support in the Legislature, not all religious-liberty scholars supported it.

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, told Florida lawmakers that the act was “nothing more than a power grab by organized religions and interest groups,” and that it would subvert the separation of church and state because it would “amount to a preference for religion that undermines the separation of church and state.”

In its lawsuit against Boca Raton, the ACLU argues that the cemetery ordinance would “substantially burden” the families' religious practices by curtailing the symbols they can place on loved ones' graves. Thus, the ACLU maintains that the city's interest in enforcing the ordinance is not great enough to warrant substantially infringing upon families' religious rights.

Howard Simon, executive director of the Florida ACLU, said that the judge announced that he did not believe the families' practice of placing symbols on gravesites was central to or necessitated by Christian and Jewish faiths. The judge would not issue his written ruling for a few weeks, Simon said.

Simon said the judge's decision would be appealed.

“Basically what the judge did was to make a decision on what constitutes orthodoxy for religions,” he said. “I think we would be hard-pressed to find another judge that would have decided the constitutional rights of these families to commemorate their deceased loved ones in accordance with their religious beliefs is less important than the convenience for the government of mowing lawns and digging new graves.”