Rights of Observant Jews to Have Access on Holidays to Cemeteries to Bury Their Dead Strengthened by

Legal rights of observant Jews to have access on holidays to Jewish cemeteries to bury their dead promptly, as required by Jewish law, have been strengthened by legislative action in New York and by judicial decree in Illinois, the only states providing such rights.

A measure passed by the New York State Legislature, which makes into law regulations of the New York State Cemetery Board protecting such rights for New York observant Jews, is awaiting an expected signing by Governor Mario Cuomo.

The U.S. Supreme Court rejected on July I the appeal of a Chicago area gravediggers’ union from a decision of the Illinois Supreme Court which held that a law was constitutional which made illegal labor agreements which ban Sunday burials.

The measure approved by the New York Legislature which requires New York cemeteries to “reasonably accommodate the religious needs of plot owners or other persons entitled to burial privileges for prompt burials” was sponsored in the Assembly by Sheldon Silver (D. Man.) and by John Marchi (R. Staten Island) in the State Senate.

Silver said the measure was drafted with the help of the National Jewish Commission on Law and Public Affairs (COLPA) and that it builds on and strengthens burial regulations of the Cemetery Board obtained by COLPA in 1973.

PROVISIONS OF THE NEW YORK LEGISLATION

The new measure gives the strength of law to the Cemetery Board regulations. Silver also said that the new measure continues the requirements of the Cemetery Board regulation that the cemeteries must provide burials on legal holidays when requests for burials are made by 9 a.m. of the day of the holiday. The legislation extends the time of request to 12 noon.

The Silver-Marchi measure provides that, within one hour of the request for burial, the cemetery must notify the funeral director, the bereaved family or other persons making the request, of ability or inability to comply. The regulations provide that the notification must be made by 10:30 a.m. of the day of the holiday, regardless of how early the request is made.

The Silver-Marchi measure provides for causes of action by the bereaved family or by the State Attorney General. The family can seek penalties and injunctive relief to force burials and the Attorney General can seek penalties and injunctive relief when he is informed of a violation.

Allen Rothenberg, COLPA president, said that, under the Cemetery Board regulations, enforcement power is limited to injunctive relief and civil penalties when there is a violation but the regulations are unclear as to whether an order must first be formally issued and then enforced in a court.

The Silver-Marchi measure provides that any member of the family of a deceased relative, injured by violation of the measure’s requirements, may bring an action for recovery against a cemetery corporation for up to $1,000, plus reasonable attorney’s fees.

The measure also authorizes the Attorney General to seek an injunction against continued violations by cemeteries and imposition of civil penalties of up to $1,000 for each violation.

Dennis Rapps, COLPA executive director, said the regulations are unclear as to whether the family and/or the Attorney General’s office, which has substantial litigation resources, may act independently of the cemetery board.

BACKGROUND OF THE ILLINOIS LEGISLATION

The Illinois law, enacted in 1983 through the efforts of a number of Jewish groups, led by a local chapter of the Agudath Israel of America, was designed to accommodate the needs of observant Jews for prompt burials of their deceased because labor agreements with the cemeteries did not provide for Sunday burials.

The gravediggers union challenged the law on a variety of grounds but it was upheld as an acceptable accommodation to religious practice. In May, 1984, a Cooks County circuit court upheld the law in all respects. The union appealed that ruling and in September, 1984, the Illinois Appeals Court and the State Supreme Court affirmed the lower court ruling. It was the appeal by the union from the State Supreme Court ruling that was rejected by the U.S. Supreme Court.

Mendel Singer, chairman of the Chicago branch of the Agudath Israel Commission on Legislative and Civil Action, which helped to get the challenged law enacted, said that law invalidates any labor contracts between cemeteries and workers in Illinois which totally ban Sunday burials.

Edwin Katz, a member of COLPA’s Chicago chapter, represented a group of Jewish institutions in the case and led the fight for the law’s constutitonality under the First Amendment.