BOSTON (CN) — The Massachusetts Supreme Court struggled Monday to decide if a Coptic church that bought an Episcopal church can dig up the bodies in the cemetery and move them elsewhere.
“We’re stuck between two churches and burial practices, which is a religious activity,” Justice Scott Kafker said at oral arguments this morning.
Justice Serge Georges called it a “Hobson’s choice.”
Some of the justices viewed the case as a purely contractual dispute between the churches and the families who don’t want their loved ones to be moved. “Why is this case so complicated? Why do we have to go to the First Amendment?” Justice David Lowy asked.
But “I don’t see it as simple as you just posed it,” Kafker said. Because the bodies in the burial ground were cremated, and the Coptic church opposes cremation, “we’ll run right into the First Amendment.”
The families are arguing that the Coptic church “needs to tolerate on their land something that is offensive to their beliefs,” Justice Delila Wendlandt said. “Why doesn’t that implicate the First Amendment?”
At a time when more and more churches are closing each year, the question of what to do with burial grounds is taking on increased importance. A ruling from the state with the oldest cemetery in the U.S. could prove persuasive nationally.
Every week some 75 to 150 religious congregations in the U.S. close their doors, according to a study by the United Church of Christ. Of those that remain, half the congregations have 65 people or fewer, and two-thirds have fewer than 100, according to the nondenominational group Faith Communities Today.
The Massachusetts case involves the Church of the Holy Spirit of Wayland, an Episcopal parish founded in 1961 and shuttered in 2015.
In 1967 the church opened a small cemetery area for parishioners who had been cremated. Eventually some 51 people were buried there.
When the parish sold the property to a Coptic church for $1.8 million in 2016, the contract said that the cremated remains would be removed. The families of 36 deceased people in the cemetery agreed to disinterment, but 15 families objected and went to court. Two former parishioners also claim they retain a right to be buried there when they die.
The state appeals court sided with the families back in May.
The case centers on burial contracts the families signed in which the Episcopal church retained a right to amend its cemetery regulations at any time — but also promised to provide “perpetual care.”
“Was that defined?” asked Justice Elspeth Cypher.
“Perpetual means forever,” answered the families’ lawyer, William Gramer of Manchester, New Hampshire.
The Episcopal church eventually amended its regulations to close the burial ground, but not until six months after the property was sold.
Gramer argued that under common law, “once land is devoted to a burial ground, it is transformed,” and families have a right to visit and maintain it.
The Episcopal church’s lawyer, Jennifer Miller of Hemenway & Barnes in Boston, said that was true but once land ceases to be operated as a burial ground, the families rights become limited to “respectful removal,” and the “perpetual care” contracts were written with that assumption.
But Gramer said that wasn’t what the families expected at all. “You look at the expectations of the parties. Someone purchasing a place in a memorial garden doesn’t expect disinterment. They expect perpetual care.” Gramer said it was unreasonable for the Episcopal church to close the cemetery as part of its sale contract.
But “why is that unreasonable if it was to meet the conditions of the best deal they could get?” Wendlandt asked.
Georges suggested that a trial might be necessary to decide if the contract was reasonable.
Kafker kept returning to the fact that the case involved churches. “If this were some burial corporation that said we’ll perpetually maintain, we wouldn’t be here. That authority is limited by its own terms. Here we’re reluctant to amend it because we’ll run right into the First Amendment.”
Audrey Botros, the Coptic church’s lawyer and a member of the congregation, told the court that having to retain the burial ground interfered with its religious practices because it couldn’t build a Sunday school and couldn’t expand the church building itself to accommodate important rituals. She mentioned that the Coptic church had been persecuted in ancient Egypt, and raised the specter of a church having to operate a marijuana dispensary.
But “we have competing religious rights here,” said Kafker. “As a purchaser of property, I don’t know how far your religious rights go. Your purchase may be subject to certain restrictions.”
Miller noted that 7,000 bodies were disinterred when the Quabbin Reservoir was built to provide water to greater Boston. “But when the government takes property it has to compensate people,” Kafker observed. “Your regulations don’t do that at all. They leave the impression this will be perpetual.”
Lowy continued to view the case in terms of the reasonableness of the contract. “Was there a meeting of the minds? This is a factual dispute as to reasonableness.”
But “we don’t normally question reasonableness of belief in the religious context,” Kafker said.
Massachusetts is home to numerous ancient graveyards including the country’s oldest, the Old Burying Ground in Duxbury, which dates from 1638 and contains the remains of Myles Standish and other Pilgrims who came over on the Mayflower.
Wayland, about an hour away, was settled that same year, and more than a hundred of its citizens fought in the battles at nearby Concord and Lexington. The town was the home of the abolitionist minister Edmund Sears who wrote the Christmas carol “It Came Upon a Midnight Clear” in 1849.
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