Florida high court hears debate over religious grave decorations

By The Associated Press

06.04.02

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TALLAHASSEE, Fla. — Crosses and Stars of David erected in a city cemetery are protected under state law, an American Civil Liberties Union lawyer told the Florida Supreme Court yesterday.

But an attorney for Boca Raton argued a federal judge was right when he upheld the city's ordinance limiting grave decorations to flat markers. The city wants to remove about 400 vertical markers decorating graves at its municipal cemetery.

The religious symbols remain standing while the legal challenge is in the courts. Both sides have said they believed the case was the first in the nation to deal with religious expression in a public cemetery.

At the heart of the case is Florida's Religious Freedom Restoration Act. The 1998 law protects the "exercise of religion," which it defines as acts "substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief."

The issue goes far beyond cemeteries, according to the Florida League of Cities, which filed a brief in support of Boca Raton.

The cities warned that a ruling for the ACLU and its clients could gut laws relating to "parking standards, height limitations, lot size and building setbacks, historic preservation, traffic impacts, noise levels, billboards and other signage requirements, homeless shelters and food banks, use of municipal property and animal control regulations."

The International Cemetery and Funeral Association also filed a brief in support of Boca Raton.

Gov. Jeb Bush, meanwhile, weighed in on the side of ACLU.

Most of the 4,500 occupied graves at the Boca Raton Municipal Cemetery comply with the rules — and most families support the rules, according to the city.

In 1998, the city said it planned to remove vertical decorations. The ACLU Foundation of Florida sued on behalf of 400 families that have vertical displays of crosses, statues of saints and Stars of David.

In April 1999, U.S. District Judge Kenneth Ryskamp in West Palm Beach ruled the city's cemetery regulations did not violate the state's 1998 religious-rights law.

The ACLU appealed the decision to the 11th U.S. Circuit Court of Appeals in Atlanta, which sent the case to Florida's high court to rule on the scope of the Florida statute.

"Few things are more central to religion than its response to human death," ACLU attorney Douglas Laycock argued yesterday.

"These plaintiffs responded with crosses, with statues of Jesus and the saints, with Jewish grave coverings and Stars of David," said Laycock, a Texas law professor from Austin.

But Bruce Rogow, representing Boca Raton, argued that families can have all the religious symbols they want — they just can't be vertical.

The plaintiffs want to create personal shrines that are "a recipe for cemetery anarchy," Rogow said, quoting Ryskamp's ruling.

"They have really trivialized the free-exercise clause," Rogow said, referring to the First Amendment provision that says government cannot pass laws limiting the free exercise of religion. "They're talking edging stones, they're talking wood chips, they're talking marble chips."

Paperwork filed by Bush's top attorney argued that Ryskamp erred when he narrowed the scope of the Florida Religious Freedom Restoration Act.

Charles Canady wrote that the Legislature's purpose in adopting the act "was to prevent any contraction of the religious liberty enjoyed by the people of Florida."

During oral arguments, all seven justices asked questions.

Justice Barbara Pariente questioned whether the law gave religion an extra layer of protection, asking Laycock whether someone would be allowed to erect a statue of Buddha but not of Abraham Lincoln.

"Doesn't that end up establishing a preference for religion?" she asked.

Laycock replied that someone who wanted a statue of Lincoln at a grave would be able to argue it was protected under the constitutional guarantee of free speech. He also disagreed that a law protecting the exercise of religion means religion is getting special treatment.

"We don't establish a religion simply by leaving it alone," he said.

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Federal judge upholds Florida city ban on unwieldy grave decorations
Boca Raton families suffer setback; civil rights group will appeal.  04.02.99