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Unique Illinois Burial Law Constitutionality Test Underway

May 24, 1984
See Original Daily Bulletin From This Date

An unprecedented court test is underway in Illinois concerning the validity of the nation’s only state law, designed to accomodate religious needs of Jews for prompt burials, which makes it illegal for any labor contract between a gravediggers union and a cemetery trade group to ban burials on Sundays, a Jewish legal aid expert said today.

The Illinois law, in which Agudath Israel of America had a key role in bringing about passage, was challenged in a lawsuit filed by Local 106 of the Service Employes International Union against the Cemetery Association of Greater Chicago, according to Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA).

Local 106 strongly fought the measure in the state legislature, contended that it violated the National Labor Relations Act, and that it was unconstitutional on three grounds: that it mandated “involuntary servitude” by forcing gravediggers to work on Sundays against their will; that it impermissibly promoted the religious wishes of one group; and that it forced some gravediggers to accomodate the religious wishes of others.

Judge Arthur Dunne of the Circuit Court of Cook County upheld the statute in a ruling issued May 16. He had previously issued a temporary restraining order on January 4 which was limited to a ban on dismissal provided by the new law against any union member refusing to dig a grave on a Sunday.


Officials of Local 106 promptly announced an appeal would be filed with the Illinois Court of Appeals, the state’s highest court.

Rapps said that Erwin Katz, a COLPA member and Chicago-based trial attorney; State Sen. Howard Carmel; and State Attorney General Neil Hartigan, are attorneys for intervenors in the case. Katz represents Chicago area rabbinic and congregational groups, such as the Chicago Orthodox Rabbinate, an umbrella group.

At the request of Agudath Israel, State Sen. Carmel, the law’s main legislative sponsor, represented other Jewish organizations as intervenor-de-fendants in the case.


Rapps told the Jewish Telegraphic Agency that such intervention was necessary to insure the Jewish community’s interest in prompt burials, as required by Jewish Law. He said court documents indicated that the cemetery association could not be relied on to represent the special Jewish interests of the intervenors because the cemetery association had not, in the past, supported efforts by observant Jew to have cemeteries opened forburials on Sundays or legal holidays when asked to do so by observant Jews.

Hartigan’s intervention, Rapps said, is the usual practice of the attorney general’s office when a state law is challenged as possibly unconstitutional.

Rapps said the cemetery association was the only defendant named in the union’s suit because, under the new law, it had notified Local 106 that on the January 1, 1984 effective date of the new law, any gravedigger refusing to work on Sunday could be subject to dismissal.

Judge Dunne decided the case without trial, on the basis of briefs filed by both sides who had agreed there was no factual issues to be determined. The judge held that the law did not violate the local’s collective bargaining rights because, as he interpreted the contract, it did not ban work on Sundays by union members.

While he upheld the law, Dunne stayed implementation of its provisions pending outcome of the appeal by the union, which must be filed within 30 days of his decision, by June 16. Officials of COLPA and of the Chicago Commission on Legislation of Agudath Israel said they were prepared to defend the protection of the new law to the full.

Rapps said Dunne did not directly rule on the other charges filed by the union local but, he declared, by ruling in favor of the defendants in generally upholding the law, Dunne also had to find for the defendants on those issues as well.

The only other state to provide such accomodation to the burial needs of observant Jews is New York. Rapps said that, in 1972, as a result of a COLPA effort, the New York State Cemetery Board promulgated a regulation providing for legal holiday burials when cemeteries are normally closed. He said Sundays are not a problem in New York since Sundays are regular workdays for gravediggers in that state.

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