Is This The Slippery Slope?

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Mike Dwyer

Mike Dwyer is a former writer and contributor at Ordinary Times.

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  1. Avatar veronica d
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    says:

    Actually, I’m with the church on this. I don’t like the church. In fact, I condemn it entirely. This is a good reason for people to reject this particular religion and find something better.

    But still, this is unambiguously sacred ground.

    Many bigoted churches have been playing cynical games with this notion. For example, Massachusetts law requires religious schools to follow state-wide diversity policies for teachers. However, they make an exception for explicitly religious teachers. Seems fair. So of course some of the schools just declared everyone a religious teacher. Thus, somehow, Calculus is now a religious topic. (I’m guess they have no courses in Set Theory.)

    In any case, this is clearly not what is happening here.

    If your church forbids gay marriage, then you don’t have to hold a gay wedding in your church. You don’t even have to accept gay people in your church. You can be as idiotic inside your own toxic religion as you want. It’s your own horrorshow, not mine.

    This is different from Joe-Christian who owns a waffle shop, which caters to the general public. The general public includes me. A waffle shop ain’t sacred ground.

    #####

    And of course these things will be tested. There are 300 million Americans. Probably about 5% are gay. That’s 15 million gays. If one out of 10,000 of them is a aggressively anti-religious activists, that is 1,500 people willing to pull stunts like this. It will happen.Report

    • Avatar North in reply to veronica d
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      says:

      I’m with Veronica 100% here. This is a sacred thing within the religious organization’s direct control and mandate. If you don’t like the Catholic rules then don’t try and get buried in a fishing Catholic graveyard. If you don’t like the Catholic rules then don’t ask for a wedding in a Catholic Cathedral. If you don’t like the Catholic rules then don’t be a fishing Catholic, go find another faith. Or get enough people within the Catholics to agitate within the Catholic administrative structure to change what it means to be Catholic. You sure as hell don’t get to try and drag a secular outside authority in to throw their weight around.

      This kind of overreach is the stupid shit the religious right is counting on. It’s their only hope for salvation from the ruin their own hatred, hypocrisy and short sightedness has brought them to. They’re counting on us to give them the victim card. We. Must. Not. Give. It. To. Them.Report

      • Avatar veronica d in reply to North
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        says:

        Obviously these stories will be more fodder for the culture war. So yeah. On the other hand, we can just keep playing videos such as this.

        Which is to say, propaganda is an ugly game, but bigotry is an ugly thing.Report

      • Avatar Mike Dwyer in reply to North
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        “This kind of overreach is the stupid shit the religious right is counting on. It’s their only hope for salvation from the ruin their own hatred, hypocrisy and short sightedness has brought them to. They’re counting on us to give them the victim card. We. Must. Not. Give. It. To. Them.”

        This is a really good point North. What just seems odd to me is that this couple should know all of this.Report

      • Avatar Oscar Gordon in reply to North
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        says:

        If it gets dragged into court, hopefully the courts will quickly reject it. This seems like a pretty brightline kind of thing.Report

      • Avatar dragonfrog in reply to North
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        This kind of overreach is the stupid shit the religious right is counting on.

        Yes, and… In a way this kind of overreach is part of the process of defining the boundaries. I mean, it seems obvious to me, and apparently to most of us here, that this is overreach. But it will be more clearly overreach when a court confirms that it is.Report

      • Avatar Art Deco in reply to North
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        Counting on? No, expected. Expected because experienced previously. The effrontery incorporated into this suit is not qualitatively different than what we’ve seen before and will see in the future.

        (And one thing we’ve seen before is incorporated into your comment: the insistence that we should adopt the posture commonly attributed to battered wives. Thanks for sharing, as always).Report

        • Avatar Stillwater in reply to Art Deco
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          says:

          The effrontery incorporated into this suit is not qualitatively different than what we’ve seen before and will see in the future.

          Well, sure. People being people and all I’d imagine the boundary-pushers will act in their interest in equal proportion to boundary-closers acting in theirs. Such is life in a world where the rule of law, adjudicated by the courts, reigns supreme, yeah?Report

  2. Avatar Don Zeko
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    says:

    Like @veronica-d , I’m with the church here on the merits. Because there’s not a ruling yet, this story seems like proof that you can sue anyone for anything if you want to. The question is whether they’ll win and whether or not the larger gay rights community gets behind them. I hope not, and I think it’s unlikely. But I’m not at all certain about it.Report

    • Avatar North in reply to Don Zeko
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      says:

      I have hope that the gay organizations by and large won’t touch this with a 100 foot pole and that it’ll be executed in court and vanish without a trace.Report

      • Avatar Kazzy in reply to North
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        says:

        Which to me would say that this isn’t a “slippery slope”. The slippery slope would be evidenced by movement down the slope, not failed attempts at such.Report

        • Avatar North in reply to Kazzy
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          says:

          Much as I’d like to agree I can’t. People moving to file these complaints is movement, just a very small amount of it. Hopefully the courts will throw this out and that will be the end of it. It seems like a ludicrously weak case. All emotion and indignation, no law.Report

      • Avatar dragonfrog in reply to North
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        says:

        As above – I rather hope it does not vanish without a trace.

        So that, the next time someone says that having to serve gay couples at a waffle shop is a slippery slope to churches not being able to control what happens on sacred ground, their interlocutor can go “No, it isn’t. Some folks tried, and the court told them in no uncertain terms to shove off. Here’s the case name, let’s talk again about the slipperiness of this particular slope after you’ve read the ruling.”Report

  3. Avatar RTod
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    says:

    Like @veronica-d I am with the church here. And I also agree with her that we will be going through a period of feeling things out for a while.

    To those who came later to the SSM party (and those who came unwillingly thanks to SCOTUS), I would offer the same advice I gave to SSM advocates after victory: Be patient, have empathy, and don’t treat the other side as the enemy. We all still have to live together. So just as I would remind those whose first inclination would be to publicly vilify the archdiocese, I would also remind those on the other side what most of the people who can now marry’s life was like for most of their lives. How they were treated in school, how they were the assumed butt of every joke, how acceptable it was to threaten causal violence against them. So, yeah, slippery slopes, but also probably some real lingering resentment that can’t just disappear overnight. It’s going to take time.

    All of which is to say, I do think it’s important to make sure the archdiocese can have sacred ground. But I’m less sure that pointing at this incident and saying “told you this is what they’d do!” Is so helpful. (And to be clear, that’s is not what Mike was doing here, so this isn’t directed at him.)Report

  4. Avatar Richard Hershberger
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    I am curious to know is the diocese’s earlier policy. What did they do in the case of divorce-and-second-marriage couples? Is the current situation a continuation of established policy, or something new?Report

    • Avatar InMD in reply to Richard Hershberger
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      says:

      It sounds like the church is perfectly willing to allow them to be buried there and even buried together. The issue is the images within the tombstone endorsing gay marriage. A better parallel wouldn’t be a divorced person being buried there it would be that person designing their tombstone to celebrate the legality of divorce.Report

      • Avatar DavidTC in reply to InMD
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        It sounds like the church is perfectly willing to allow them to be buried there and even buried together. The issue is the images within the tombstone endorsing gay marriage. A better parallel wouldn’t be a divorced person being buried there it would be that person designing their tombstone to celebrate the legality of divorce.

        Yeah, this is a bit of a surreal complaint. It’s not even what people are assuming…the church is perfectly willing to let them have a dual plot. I suspect they were hoping to be denied the dual plot, but weren’t.

        This is because I’m pretty sure the Catholic church has stopped denying *anyone* burial rights at their cemeteries. That used to be a somewhat nasty thing they did in the middle ages, especially nasty because they were often the only cemetery in town. Which they aren’t anymore.(1)

        If the church had allowed that, next up they would have demanded ALL HAIL SATAN, LORD OF DARKNESS on the headstone. Or a headstone that was a giant penis.

        You want to get buried in a Catholic cemetery, you follow their rules about headstones.

        1) We can get into a hypothetical discussion what if the church cemeteries are the only game in town (I.e., the ‘If private discrimination is legal for businesses, what if the only auto mechanic in town discriminates?’.) question, but in America, that’s simply not true *anywhere*. In fact, churches that have *open* cemeteries you can still get spots in (as opposed to historic ones that are all filled) are fairly rare, because no one is starting *new* ones. Cemeteries are a huge, unchangable hassle that churches will have to deal with forever.Report

        • Avatar InMD in reply to DavidTC
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          says:

          It isn’t just surreal but seems to be a failure on the part of the plaintiffs to understand when they’ve won.Report

        • Avatar Maribou in reply to DavidTC
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          @davidtc

          “in the middle ages”

          Oh honey.

          That whole thing was still going on in the 20th century. As in “no burying suicides on sacred ground”. I don’t know if it’s still going on or not, but while it may have been much nastier back in the middle ages, it was actually only officially changed in 1983. (In my direct knowledge, people often, historically lied about cause of death to get suicides into Catholic cemetaries. In my community-of-birth-related assumptions, this ban/ need to lie was highly related to the stigma faced by suicides as causative, not just as consequential.)Report

          • Avatar Don Zeko in reply to Maribou
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            You’re both right. For the Catholic Church, the middle ages ended at Vatican II.Report

          • Avatar North in reply to Maribou
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            Which, while awful, I would hasten to add is entirely and completely within their religious rights.Report

            • Avatar Maribou in reply to North
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              Oh, sure, it’s totally within their religious rights. I was taking that as a given.

              I was speaking as a not-entirely-even-totally-lapsed Catholic who had related experience as a member of the church, and mostly just offering information / context since there was misinformation running around.

              In the same spirit, @don-zeko – I know you were making a joke – but you also know that Vatican II was over well before 1983, right?Report

              • Avatar Don Zeko in reply to Maribou
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                says:

                I am aware, but only barely aware of that. Hopefully none of the actual Catholics in the forum get too bothered by dumb hyperbole from a raised-protestant atheist like myselfReport

              • Avatar North in reply to Maribou
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                says:

                Yeah sorry, just am on a tear on the subject. Times like these make me wish Sully was still cranking out daily fare, this is a subject he was rock solid on.Report

          • Avatar DavidTC in reply to Maribou
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            says:

            I wasn’t actually talking about suicides, although that rule started being observed more in the breach than the actual fact for quite some time, even before it was repealed.

            I was talking about excommunicated people and non-believers.

            Oddly, this doesn’t quite work the way people think.

            Non-believers can, according to canon law, be buried in Catholic cemeteries, no problem. And this has always been true. The Catholic church in modern day America doesn’t tend to do this unless you have some *good* reason to be buried there (Like the rest of your family is there), but in Europe in the middle ages, when they were often the only cemetery in town, they were sometimes okay with it…and sometimes not. If you were part of the local well-behaved Jewish family, sure, they’d let you in, probably. But the local trouble-making atheist, maybe not. (1)

            Excommunicated people, however, are still, to this day, technically denied burial in Catholic cemeteries. (Which seems weirdly inconsistent to me vs. non-believers.) However, people tend to misunderstand excommunication, most of which is a) automatic based on various sins, and b) correctable just by asking for forgiveness. And I suspect this forgiveness is handwaved as *assumed* to have happened during last rites.

            The amount of people being excommunicated *and not let back in* (aka, excommunicated by decree) is much lower than it used to be in the middle ages.

            1) This is pretty much why we need to be worried about religious charities, incidentally. There are all sorts of ways to handle cemeteries. We could have the government run them, we could have specialized non-profits run them (That’s how most of them work in America), we could have businesses run them, or we could have churches run them. The problem arises if churches are willing to provide, and pay for, cemeteries, and we hand that over to them…and they refuse to deal with a small percentage of people. So the *majority* of people are getting this service for free, basically like it’s a public service…and then some people don’t get it at all, because no one can compete with free and there’s no demand to have the government do it.

            We’ve stopped that with cemeteries (As I said, being buried in a church cemetery is the weird exception, not the norm.), but we need to realize we shouldn’t do it with soup kitchens, either. Or adoption and foster care services. Or anything. Public charities must be *public* charities.

            EDIT: To put it another way: Let’s say that, in Utah, the Mormon church had built most of the roads. And maintained and operated them *for free*.

            It seems clear that the people of Utah would be rather behind in *public* road construction. Likewise, it seems clear that this a *bad situation*, because the Mormon church could just *deny* anyone access to roads.

            And yet we put up with the same thing with food pantries.Report

            • Avatar veronica d in reply to DavidTC
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              We’ve stopped that with cemeteries (As I said, being buried in a church cemetery is the weird exception, not the norm.), but we need to realize we shouldn’t do it with soup kitchens, either. Or adoption and foster care services. Or anything. Public charities must be *public* charities.

              My big concern is hospitals. Hospitals are expensive and large and if Fulminating-Bigots-for-Christ has built a nice cushy hospital on my side of town, then there is little political will for the municipal government to provide one. Which, fine. Except if the administration of that hospital hates me, and hates everyone like me, and considers their hospital, legally speaking, a sacred space, so they can deny hiring people like me, or worse even serving people like me… where does it end?

              If you design to serve the public, well I’m part of the public. If you want some private “just for us” kind of thing, a truly sacred space marked off from the world, then fine. I don’t care. Hide in your bubble. Your choice.Report

        • Avatar dragonfrog in reply to DavidTC
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          says:

          The Catholic church might not run the only cemetery in town, but still the only cemetery at which your family members are buried. “Go bury your dads at the municipal cemetery, six miles away from where the last four generations of your ancestors are all buried” would still be a pretty hurtful thing. Which, in this case, the church does not seem to be doing, so…Report

          • Avatar Lyle in reply to dragonfrog
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            Actually this is happening a lot as older church cemeteries fill up and close to new burials. Of course the issue of burial is becoming less important as cremation becomes more and more common. A number of churches have scattering grounds for the ashesReport

            • Avatar dragonfrog in reply to Lyle
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              says:

              Yeah, I get that churchyards are running out of space – and it might be upsetting, but I don’t think it would be *hurtful* if that were the case.

              That is “I’m sorry, the last burial of anyone at all in this cemetery was eight years ago. As you can see, there’s just no room to dig a new grave,” might be disappointing, but it’s not hurtful, because there’s no discrimination in it; they’re just out of the thing you’re trying to get.

              But “I’m sorry, we will never allow a same-sex married couple to be buried in this cemetery. If any of your heterosexual uncles or aunts wish to be buried here when they die, that will surely be possible since we have plenty of room for those who are not abhorrent in the sight of God,” would be a different matter altogether.Report

    • Avatar Alan Scott in reply to Richard Hershberger
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      Keep in mind, the catholic cemetery knowingly sold them a joint plot. So this isn’t about whether their relationship itself is in violation of church teaching. This is about the specific design of a grave marker.

      I’m not certain there’s much in the way of precedent in terms of a headstone specifically celebrating legal victories opposed by the church. But I do recall a story about a NASCAR fan whose race-car themed headstone was rejected.Report

      • Avatar Kim in reply to Alan Scott
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        says:

        They should say something like “putting the supreme court on your headstone is fine… but linked rings is not”

        The church is being remarkably nice about this. Some might throw a hissy fit about gay folk being buried in their cemetary.Report

      • Avatar Richard Hershberger in reply to Alan Scott
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        This is about the specific design of a grave marker.

        Sure. I am assuming that the linked rings or whatever would not be a problem for a canonically married couple. If I am wrong about this, then the entire issue is moot. My question is whether they have allowed this or a similar motif for couples who were not canonically married. Are they like all those bakers and florists who suddenly discovered, when it became politically expedient so to do, that selling a cake or flowers implies affirmation of the event using said cake or flowers? Or are they merely affirming a long-held policy allowing symbols of marriage only for couples married in the church?Report

        • Avatar InMD in reply to Richard Hershberger
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          The appropriate response is who the hell cares? You either agree with the church’s teaching on marriage or you dont. Dont like their rules? Easy. Get buried somewhere else. If we’re really at a point where people think it’s reasonable to require a religious organization to erect a symbol contradicting it’s own teachings on its own property then we’ve already lost the game.Report

    • Avatar Art Deco in reply to Richard Hershberger
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      I don’t think it’s at all unusual for chancery rats (and bishops) to allow all manner of things that conflict with canon law or, failing that, with good sense in light of the Church’s teaching mission. I’ve a dear friend buried in Holy Sepulchre in Rochester. Never baptised. The letter of refusal is something you might expect from a conscientious diocese (which are fairly common in the country’s midsection), not from just any diocese.Report

  5. Avatar Art Deco
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    says:

    Yes it proves them right. Next question.Report

  6. Avatar Kazzy
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    says:

    Several thoughts…

    1.) I don’t think an individual instance can be a slippery slope but could serve as evidence that we are indeed sliding down the slope. If the decision comes down in favor of the couple, it would pretty clearly be a step in the direction those who fear the slope is pointing.
    2.) I would generally support the right of cemeteries to impose standards on what can be put on tombstones. I would probably support their right to say who can and cannot be buried, but that is both a trickier question and one (I don’t think?) being asked here.
    3.) I struggle to see how the image in question actually violates church teachings. But that is ultimately immaterial.
    4.) It is possible both sides are seeking a fight. I wonder if the church’s argument that an image of the Supreme Court violates their teachings is a way to say no gays without saying no gays. Or a way to get the courts to rule that churches can limit what is represented on tombstones.
    5.) To the extent this was a tactical move by the couple in question (or broader interests/people/groups they represent) (and I think it reasonable to speculate that it is), it feels like a poor one. Like, a really poor one. Of course, that is easy for me to say. If the couple genuinely wants to be buried in that cemetery (for whatever reason) and genuinely wants that on their tombstones (for whatever reason), I guess you fight for that?Report

  7. Avatar trizzlor
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    Yeah, this is dumb and I hope LGBT activists distance themselves from these tactics. But at some point we need to have another talk about what responsibilities a tax-exempt organization has to non-discrimination.

    * Also, the argument “these people shouldn’t have rights because there will be more frivolous lawsuits” was never convincing and was a transparently last-ditch effort after outright gay bashing stopped being effective.Report

    • Avatar Don Zeko in reply to trizzlor
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      YMMV and all, but I’d rather put up with a fair amount of corruption, naked political advocacy, and general shittiness than have the feds get more aggressive about who is and isn’t going to get religious tax-exempt status. That’s a very ugly can of political and constitutional worms I’d like to keep as tightly sealed as possible.Report

    • Avatar North in reply to trizzlor
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      No, I disagree.
      The legal conventions around the churches are the result of centuries of compromise and moderation. I want nothing to do with tinkering around with that because of discrimination and especially not if my name (as a gay person) is attached to that cause.

      Womens shelters don’t shelter men. Animal rescue organizations don’t rescue humans. Food assistance organizations don’t feed animals. Jewish temple doesn’t hold Buddhist ceremonies. Islamic temples don’t serve pork products. Catholic graveyards don’t display anti-Catholic gravestones. Everyone discriminates. Everyone.

      You wanna tilt at the windmill of religious tax exempt status do it on its own grounds and merits.Report

      • Avatar DensityDuck in reply to North
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        “Womens shelters don’t shelter men. Animal rescue organizations don’t rescue humans. Food assistance organizations don’t feed animals. Jewish temple doesn’t hold Buddhist ceremonies. Islamic temples don’t serve pork products. Catholic graveyards don’t display anti-Catholic gravestones.”

        Men aren’t allowed in the Ladies’ Ro–oh, right.Report

        • Avatar North in reply to DensityDuck
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          Far as I know they still aren’t. Nor do we have a tax exempt American Church of the Loo.Report

          • Avatar Michael Cain in reply to North
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            Are Catholic cemeteries exempt from property taxes? How about private cemeteries? Straight question, I simply have no idea.Report

            • Avatar DavidTC in reply to Michael Cain
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              Are Catholic cemeteries exempt from property taxes? How about private cemeteries?

              That’s one of those questions that cannot be answered, because property taxes are a *local* thing.

              In general, entities that are non-profit under the law are exempted from paying property taxes.

              Normal cemeteries, incidentally, are 501(c)(13)s, a special non-profit category just for cemeteries, and there are a lot of rules about how the money works. (Because it is supposed to last forever.) There are also two different kinds, ‘mutual’ ones and other kind, and I have no idea of the differences.

              There are also ‘Perpetual care organizations’ which exist to *maintain* cemeteries, but do not actually own them. Or, a for-profit entity can own the cemetery itself, and slowly sell plots to people, and then turn over each plot (along with money to maintain it) to the perpetual care organization as it’s sold.

              I do not know how church cemeteries are structured.

              Here’s a really surreal fact: Non-profits are owned by their members. The members of a cemetery non-profit? The *dead people*. Non-profit cemeteries are literally owned by the dead, according to the law. They own their own plot, and the organization itself is like a HOA for dead people.

              Next time you hear that dead people can’t own property, smack the person who said that.Report

              • Avatar Kazzy in reply to DavidTC
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                We talked about this a bit down below. The more I think about it, the less sense the legal realities of cemeteries are.

                What happens if a cemetery digs someone up and tosses the body to make room? Who is the “victim”? Who has standing?

                What happens if a cemetery goes belly up? Do cemeteries ever close down?Report

              • Avatar DavidTC in reply to Kazzy
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                What happens if a cemetery digs someone up and tosses the body to make room? Who is the “victim”? Who has standing?

                What happens if your local HOA breaks into the house you own and changes your locks, and then resells your house?

                Burial plots, as I just said, are *property of the deceased*.

                How on earth would the cemetery *sell it again*?

                This isn’t even lawsuit territory…this is literal outright theft.

                The *police* are going to be arresting people. For real estate fraud, for mistreatment of a corpse, for vandalism, etc.

                What happens if a cemetery goes belly up?

                They do not do that. They have very specific investment rules that generally stop that from happening. Worse case scenario, they can no longer afford to maintain the property, and it becomes overgrown. (Generally, they get some sort of government bailout or takeover. In fact, local governments will often *create* cemetery non-profits to deal with existing ancient cemeteries.)

                Do cemeteries ever close down?

                Cemeteries do not ever ‘close down’ in the sense that the organization failed with the people still there.

                Sometimes, the dead people get moved. But that’s always via eminent domain. (Dead people are notoriously hard to negotiation with about voluntary sales of their burial plots. They won’t even return phone calls.)

                And the courts have basically said ‘They’re dead people, the government can’t give them money in return for their property. It has to give them an equivalent burial plot somewhere else and pay entirely to put them in it.’.

                If *every* grave was moved to some existing cemetery (As opposed to the old place just getting some new land), presumably the organization itself would shut down. (And I guess donate any left-over money to some other cemetery organization?) I don’t know how often that happens.Report

              • Avatar Francis in reply to DavidTC
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                says:

                If I may respectfully disagree. A cemetery organized as a mutual benefit corporation would be owned, indirectly, by the dead. Only indirectly, though. The title to the land would be in the name of the corporation. I very much doubt that the purchase of a burial plot operates as a subdivision of the land with title being changed to the deceased. Control of mutual benefit corporations is another issue altogether. (Votes cast for the Board by the living who hold proxies? What a great research topic for another day.) As to who has standing to make sure that the corporation is acting legally, that would be the AG.

                Note that in California, cemeteries can be run by religious corporations, public benefit corporations, cities, counties and special districts. In each case the legal title to the land would be vested in the applicable corporate / public entity.

                And, just to add to the pile, a link to the California Cemetery and Funeral Board.Report

              • Avatar DavidTC in reply to Francis
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                says:

                I very much doubt that the purchase of a burial plot operates as a subdivision of the land with title being changed to the deceased

                Well, first, neither do *condos*, and yet people own them.

                People who purchase burial plots have purchased burial rights in a specific piece of land. Just like mineral rights, or water rights.

                And, as I said, it’s owned by the deceased. (I’m not completely sure if it must *always* be owned by them.)

                Note that in California, cemeteries can be run by religious corporations, public benefit corporations, cities, counties and special districts. In each case the legal title to the land would be vested in the applicable corporate / public entity.

                The answer to that is: maybe.

                As far as I can tell:

                Every burial plot, by law, has to collect a fee when sold that goes into a state or local trust fund.

                Every cemetery has an organization that is *funded* by those fees, that all people buried in that cemetery are members of. This organization is responsible for maintaining the grounds *if they need maintaining*. (The already sold plots, that is. Unsold plots are not their responsibility, because, duh, no fee paid yet.)

                Or, in an analogy, it’s like all cemeteries come with their own HOA, created by law, with one-time membership fees in the purchase price.

                Except churches, sometimes. In some states, churches can opt out of the fees if they agree *they* will continue to maintain it forever. In which case this organization doesn’t exist, maybe?

                *Sometimes* this organization owns the cemetery land itself. This is especially likely if the cemetery was created either as that non-profit to start with, or if it was a for-profit. (When every lot is sold, there is absolutely no profit to be made from the thing, and it’s not like anyone is going to buy a full cemetery, so they just hand it over to the non-profit. Basically, for-profit cemetery companies run around expecting to ‘use up’ land and not have any land left at the end.)

                But even governments can do it, handing over the thing to the non-profit responsible for it. Churches, of course, usually don’t do this, even if they have the maintenance organization…unless they move. (Because, again, trying to sell someone a *full* cemetery is an exercise in silliness.)Report

              • Avatar Chip Daniels in reply to DavidTC
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                Yes, but we have evidence that when cemeteries are closed down improperly, the consequences include disturbance in television broadcast signals, toy clowns attempting murder, children being abducted into alternate dimensions, and even entire houses collapsing in on themselves.Report

              • Avatar Kazzy in reply to DavidTC
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                says:

                How do the deceased “own” things? If someone breaks into my house, I can complain. If someone breaks into a dead guy’s plot, who complains?Report

              • Avatar Francis in reply to Kazzy
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                says:

                In my view, they don’t. I think DavidTC is incorrect on this point. (For the record, I’ll be delighted to be corrected if I’m wrong.)

                Dead people don’t own anything. They’re dead. But dead people can have estates that exist long after they’re reduced to mulch. Alternatively, people can bequest their real property holdings. There are various ways to transfer title and this is not an area of law I’m much familiar with. But at the end of the day, the inheritor records a deed with the county recorder’s office that shows that they are the successor-in-interest to the decedent.

                Now, I can’t really imagine inheriting my dad’s title to his burial plot once he’s in it. What am I going to do with that land?

                So no, people don’t buy land in a cemetery. What they buy is the contract right to be buried in a particular plot. Once they’re interred, the contract is fully performed and the survivors move on without any remaining rights against the cemetery. The contract right, however, is not a right that gets recorded against the land, at least so far as I know.Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                @francis
                Dead people don’t own anything. They’re dead. But dead people can have estates that exist long after they’re reduced to mulch.

                The word estate means ‘everything that someone owns’. That is the actual, legal, meaning of the word ‘estate’. (And, yes, living people have estates also. It’s rarely used as a term there, but can apparently come up in bankruptcy law, according to wikipedia.)

                Saying ‘the estate of a dead person’ is literally saying ‘everything a dead person owns’.

                So no, people don’t buy land in a cemetery. What they buy is the contract right to be buried in a particular plot. Once they’re interred, the contract is fully performed and the survivors move on without any remaining rights against the cemetery.

                The ‘survivors'(?) never had any rights to start with. The estate manager (As the legally appointed representative of the deceased.) has various rights of the deceased.

                But I will point that, under what you just said, the deceased *does* own property…specifically, the right to be buried. That right is usually exercised *after* a person becomes deceased. (Hopefully.)

                If dead people can’t own property, then how the hell can they own a right to be buried in a certain location *after they die*? How does that even make sense to you? Wouldn’t they stop owning that right the second they died?

                The contract right, however, is not a right that gets recorded against the land, at least so far as I know.

                Again, rights to use property can be *owned* without that property being *a legal subdivision of real estate*. Timeshares are owned. Condos are owned. Parking spaces can be owned. The actual real estate is owned by one entity, but the right to *use* it in a specific way is owned by someone else.

                Mineral rights can be owned.

                And burial rights can be owned.

                And they continue to be owned even while being used.

                And, no the contract is not ‘fully performed’ even once the person is in the ground…burial rights include things like easements across the cemetery that allow access to the grave by people, maintenance of the grave *by* the cemetery, and of course, sometimes people might get unburied and reburied for various reasons and the cemetery has to allow that, etc. The contract with the deceased is still ‘active’.

                I don’t even know what ‘fully performed’ is supposed to mean there, as it doesn’t seem to have any bearing on anything anyway. If you write a contract granting someone the right to be somewhere for $X, with no end date, you can’t then later remove them on the grounds the contract is ‘fully performed’. Burial contracts have no end date.(1)

                More importantly, I have no idea why you seem to think I keep saying that dead people own a piece of real estate. I think a few people are taking my original HOA analogy a bit too seriously, and also didn’t understand what a ‘plot’ is. The dead own the funeral plot. A funeral plot is not real estate. A funeral plot is the right to bury someone *in* a specific piece of real estate. ‘burial rights’==’funeral plot’, they mean exactly the same thing.

                1) Which is why various state laws allows them to be broken by the cemetery if the owner has disappeared and cannot be located for 50 years.Report

              • Avatar Francis in reply to DavidTC
                Ignored
                says:

                David:

                I think we’re getting to the point that we’re splitting hairs here, but as a former land use lawyer I feel the need to respond one last time.

                In the land use world, contract rights and land use rights are two completely separate things. In order to buy a house, two things need to happen. First, the buyer and seller sign a contract. Second, when the buyer has fulfilled all the terms of the contract, the seller signs a deed which is recorded in the County Recorder’s office. The contract is personal between the two parties. The deed is public notice of the vesting of fee simple in the buyer.

                If the buyer dies after signing the purchase agreement, the estate can continue to perform the contract, and the deed would be issued in the name of the estate.

                Contracts for burial are simply contracts in which the performance by one party (the cemetery) is off in the future. But this is not a contract which affect the title by which the cemetery company owns the land.

                I challenge you to find a single deed recorded in the Los Angeles County Recorder’s office in which a person obtained any kind of recordable interest overlying the cemetery’s land ownership as part of entering into an internment contract. If I’m wrong, I will publicly apologize.

                As to your particular points, the purchase of a condo in California does affect title to the land and is a recordable interest. Same for the purchase of mineral rights. Same for the purchase of an easement allowing for the installation of a groundwater pump. (Oddly enough, the severance of water rights is not separately recordable.)

                A parking space? Likely extremely rarely. Yes, a landowner can build a garage and sell the right to park there. But I very much doubt that most landowners would then record separate parking easements for each purchaser. After all, if you decide to move after you’ve bought a spot, you’d then have to find a buyer for that interest. I suspect that most people prefer to lease.

                Parking easements tend to be used in the context of developing malls, where the developer who owns the whole parcel records a parking easement over a portion of it as part of the master plan of development. The individual developed parcels are then the beneficiary of that easement, so that Macys (for example) can be assured that the parking lot cannot suddenly be built on.

                All of this is an incredibly long-winded way of saying that not all rights to use land are interests in land.

                Cheers. And please do feel free to prove me wrong. (If you want to continue the discussion off-line, Burt has my email address)Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                @francis
                And again I will repeat my last post:

                I have no idea why you seem to think I keep saying that dead people own a piece of real estate.

                A funeral plot is not a piece of real estate. It is not recorded as a piece of real estate. It is a *right to use the land to bury someone in that specific space*, along with a few other rights. (Additionally, burial rights can be purchased that don’t specify a piece of land, or only specify a general area.)

                I have *repeatedly* said this, and yet you keep trying to *disprove* my supposed claim that’s it’s a piece of real estate. So I say again:

                FUNERAL PLOTS ARE NOT A PIECE OF REAL ESTATE.

                I cannot possibly make my position on this any clearer.

                Burial rights/funeral plots are, however, still *property*. Yes, they are a piece of property created by transferable contract to force a second person to allow something to that second person’s property, but so are goddamn bearer bonds and cattle futures and concert tickets, and no one’s asserting *those* aren’t property.

                Or maybe you *are* asserting that? I don’t even know at this point what you think, because you seem to think there’s some sort of distinction between contracts and property…but of course, if one end (or both ends) of a contract can be transferred, it *is* property, so who even knows what you’re talking about.

                I challenge you to find a single deed recorded in the Los Angeles County Recorder’s office in which a person obtained any kind of recordable interest overlying the cemetery’s land ownership as part of entering into an internment contract. If I’m wrong, I will publicly apologize.

                Um, no. You are wrong.

                http://www.oclaw.org/research/code/ca/CIV/801./content.html

                Hey, look, the right of burial *is* a recordable easement under California law.

                Crazy, I know. If I had my way, it would entirely legal to let someone set up a cemetery, sell ten plots, and then, before anyone is buried there, sell the land to someone else without telling the new owners ‘Hey, I’ve legally promised to bury some people on this land, and maintain their graves forever.’.

                No, wait, that would be completely insane to allow!

                And burial sites *do* show up on offical land plats. Both on private property (At least, they’re supposed to be on them!) and cemetery turn them in when the cemetery is created.

                Sadly, I’ve been unable to *find* any such plats online. Feel free to look one up.

                Meanwhile, where *you* are wrong is the idea that dead people *don’t own their plot*. They do. They actually, really, legally, do own their own burial rights. Which is a piece of property. Even after they are buried.Report

              • Avatar Stillwater in reply to DavidTC
                Ignored
                says:

                Damn. The right of burial is just BARELY ahead of the right of receiving sunlight. That’s cold. Literally.Report

              • Avatar Francis in reply to Stillwater
                Ignored
                says:

                This is a very old code section. You’ll also note the right of a a seat in church. The statutory existence of a particular kind of easement doesn’t mean that it’s used all that much.

                I will concede that the purchase of a burial plot is a piece of personal property, not real property. My confusion arose over all the analogies you used that were real property (like, for example, condos).

                But the purchase of a burial plot is not the same thing as becoming a member of a mutual benefit corporation. I did a little googling about this afternoon, and I did not find any cemetery in Los Angeles County organized as a mutual benefit.

                (Note for the non-lawyers: mutual benefit companies are non-profits organized for the benefit of the members thereof. The classic example is an insurance company. These companies issue memberships, not shares.)

                Which, if you think about it, makes sense. What executor of the deceased’s estate wants to worry about the ongoing responsibilities of being a member of a cemetery mutual company after the person who joined the mutual is dead?

                So, I very much doubt that there are all that many cemetery plots that are owned by the dead. It’s a big country so it wouldn’t surprise if there were a few, but the choice of that particular corporate structure seems to me to be a very odd choice.

                Better choices for a non-profit corporate form would be religious benefit (what a church would do) or public benefit. In a public benefit non-profit, the only members would be the management of the company. People wanting to be buried on that company’s land would just buy a plot, not a membership in the company. The land would not be owned by the dead; it would be owned by the corporation controlled by a small number of the living.

                (Note for non-lawyers: public benefit non-profits are the catch-all class of non-profits, ranging from charities to universities.)

                And one final, but important, point: A living person is a legal entity. A dead person is not. The estate of a person is a separate legal entity from the individual. So when you insist that dead people own things, that’s simply not correct.Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                The statutory existence of a particular kind of easement doesn’t mean that it’s used all that much.

                …only for every dead person buried, I guess.

                A burial right easement is how cemeteries work, period. That is what cemeteries sell.

                But the purchase of a burial plot is not the same thing as becoming a member of a mutual benefit corporation.

                Purchase of a burial plot, by state law, almost always includes a one-time *fee* which goes toward a specific perpetual care organization, which does, indeed, make you a member. (There are exceptions, usually religious based, where a church has itself promised to care for the cemetery forever.)

                Better choices for a non-profit corporate form would be religious benefit (what a church would do) or public benefit.

                And you spend a lot of time and effort talking about the ideal structure of a cemetary membership, without once noticing that *Perpetual Care Organizations* for cemeteries, along with non-profit cemeteries themselves, are already covered under a *specific* type of non-profit, a 501(c)(13), which I’ve already mentioned.

                I’m pretty sure I’ve already explained all this.

                And one final, but important, point: A living person is a legal entity. A dead person is not. The estate of a person is a separate legal entity from the individual. So when you insist that dead people own things, that’s simply not correct.

                Again, you need to google what the hell an ‘estate’ is. The estate of a person is, quite literally, merely a grouping of everything a person owns, minus the liabilities.

                Saying someone’s estate owns something *instead* of that person owning that thing is nonsense. After a person dies, they *continue* to own property until their estate is probated, at which point their estate (I.e., their property minus their debts.) is broken into pieces and given out.

                You seem to have a strange idea that the estate is some *separate* legal entity from a person, causing all their property to be transferred twice, once to the estate (Which somehow is magically created and exists the moment they die), and then once to whoever inherited it. Which seems like a strangely complicated way to do things, and is, in fact, not how it works.

                In fact, it *couldn’t* work that way, as an estate is assets *minus liabilities*. Your theory literally cannot make any sense when you realize that estates are just *what is left over* when people die and the creditors are paid, not everything they own.

                If I die undisputedly owning $1000, and having $10,000 in the bank, the executor of my will writes a check, using funds in the bank account I owned. So…who the hell owned that $1000 the check was written on between the time I died, and the time the check was written? It’s *not* part of the estate. It’s *not* the executor’s property, obviously.

                Why, it must have been *my* money! I must have owned it! While dead! Until the person I put in charge of my finances spent it on a existing debt of mine, also something I still owned.

                So you have to admit that dead people continue to own their property until the will is read, which rather contractions your claim that they literally *can’t* own property.

                What you mean is that they generally *don’t* own property (Because the government gives it to other people), unless they set their estate up in some complicated way…or the property is not included in estates, like funeral plots.Report

              • Avatar Francis in reply to DavidTC
                Ignored
                says:

                An easement is an interest in land. A burial plot is not.

                Please see the California Health and Safety Code section 7000 et seq. regarding Dead Bodies.

                Section 8550 et seq. lays out the land use obligations of anyone looking to operate a cemetery. The cemetery authority is required to record a map with the Recorder’s office which subdivides the land into plots, avenues, walks etc. and dedicating the land exclusively to cemetery purposes.

                Once the map is recorded, the cemetery authority may sell plots. The ownership of the plot must be kept in the records of the cemetery authority but do not need to be recorded.

                So, under current California law, the sale of a burial plot does not create an easement, and no easement needs to be recorded. A plot, as you correctly pointed out earlier, is personal property not real property.

                The tax provision you cited is to federal law. There is no federal corporate law, however. Non-profits in California are formed under the Nonprofit Corporation Law, Corporation Code 5000 et seq. There are only three kinds — Public Benefit, Mutual Benefit, and Religious Benefit. Each of these non-profit forms have different statutory rules on obtaining membership, and of course the articles of incorporation and bylaws of each separate corporation will have its own specific rules.

                I simply don’t understand your point about estates. Probate law is quite complex. But my understanding of the ultra-simple version is this: when you die, an estate automatically comes into being. The estate is everything you own at the time. (Living trusts and other legal tools can divert assets out of the estate.) This estate is a separate legal thing from you. After all, since you’re dead you can’t be signing documents. The estate is represented by an executor — again not you because you’re dead. The disposition of the estate is governed by your will. The process by which the executor proves to the State of California that she is following your intent is called probate.

                So, I respectfully disagree — there are two transfers of your assets. One by operation of law when you die, and one by the executor following the bequests of your will.Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                @francis
                An easement is an interest in land. A burial plot is not.

                A burial plot is *literally* an interest in land. I have no idea what you think it could possible be otherwise.

                Section 8550 et seq. lays out the land use obligations of anyone looking to operate a cemetery. The cemetery authority is required to record a map with the Recorder’s office which subdivides the land into plots, avenues, walks etc. and dedicating the land exclusively to cemetery purposes.

                Once the map is recorded, the cemetery authority may sell plots. The ownership of the plot must be kept in the records of the cemetery authority but do not need to be recorded.

                Well, no, because *they already have been recorded*. Above. When the place was dedicated as a cemetary, and the locations laid out!

                It is perfectly possible, and indeed very reasonable, to set up easement when dividing property, *before* actually selling any of access rights. In fact, that’s the way it normally works!

                You do not have to register individuals purchasers of easements. You just have to register that the easements *exist* on your property…when you did when you laid out a plat showing grave sites! Duh.

                So, under current California law, the sale of a burial plot does not create an easement, and no easement needs to be recorded. A plot, as you correctly pointed out earlier, is personal property not real property.

                …why do you think an easement is real property? An easement is an *interest* in real property, not real property itself.

                Let’s put it another way: If you assert that the burial plots do not include easements, you are asserting that cemeteries can *bar all people from them*.

                Actually, let’s put it another way: Please google ‘family cemetery privatee property easement’, and you’ll notice that descendents of people buried *on someone else’s private property* can go to court and record an easement to visit the property. With absolutely no legal documentation to anything except ancestory, and no contract with the original property owners *or* the current property owners.

                So it’s less that burial rights ‘include’ an easement, as some sort of contractual thing (Although that is in there.), and more the fact that people can demand an easement to visit dead relatives, period, no matter where they are.

                More…Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                @francis
                But my understanding of the ultra-simple version is this: when you die, an estate automatically comes into being.

                …via magic?

                Seriously, that is not how it works in the law, at all. If it was, you could easily point to a law *saying* that.

                Dead people’s stuff is still their stuff. Talking about their ‘estate’ is just saying ‘all their stuff’.

                The estate is everything you own at the time. (Living trusts and other legal tools can divert assets out of the estate.)

                Are you saying *before* the estate instantly exists upon your death and takes all your property, somehow something *else* can divert things from it?

                Here’s a fun question: How can stuff *you* signed alter where *your estate’s money* goes, if your estate isn’t you?

                This estate is a separate legal thing from you.

                *Saying* it’s a seperate legal thing from you does not actually make that true.

                You’re taking things that are *shortcuts* as to how we talk about the dead, and assuming these are legal facts.

                The actual legal fact is…when you die, you still own stuff. The government then declares you dead, which triggers various laws to *give away* your stuff (We don’t like dead people owning stuff.)…which you still own *until* that actually happens.

                That is the actual legal process of what happens. Saying ‘your estate was dissolved’ is just a short-winded way of saying (Assuming a will) ‘you are dead and thus mentally incompetent, so someone with (essentially) power-of-attorney appointed by you gave away all your property how you wanted’. (Without a will, the person is appointed by the state, and we just follow defaults about your wishes, but same principle.)

                After all, since you’re dead you can’t be signing documents. The estate is represented by an executor — again not you because you’re dead.

                And if you are mentally incompetent or underaged, you *also* are represented by someone else, legally. That does not mean that your property is not your own.

                So, I respectfully disagree — there are two transfers of your assets. One by operation of law when you die, and one by the executor following the bequests of your will.

                You realize what a *monumental* problem that would create legally, right? For example, you can receive money from a spouse upon their death, and not pay income taxes on it…except *you’re* claiming that the surviving spouse actually gets money from that person’s *estate*. Oops. That’s not what the law says.

                Oh, and here’s a fun one…estates have to pay the income tax of the dead person. But that’s…completely wrong if they’re a separate entity. They didn’t earn that person’s income that year…although they did just get a *huge* transfer of funds from the dead person, which means they’d have to pay income tax on *all* that money. Meanwhile, the *dead* person somehow isn’t paying income tax for that year?!

                Things could not possibly function like you think they do. And if they did, it would be *really easy* find laws that, for example, exempted this ‘transfer of funds’ from income tax. There’d have to be *all sorts* of laws to deal with that double transfer.

                None of those laws appear to exist.Report

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                I simply don’t understand your point about estates.

                Oh, and my point about estates is was me explaining that dead not only *can* own things, legally, but all dead people *do* own things, at least the moment when they die and some time afterward. And then their stuff is given away.

                So dead people certainly *could* own their own funeral plot, legally.

                In fact, they do, under the law, as I have discovered in my reading! The law tends to specifically talk about the *owner* of a funeral plot being buried in it, and they are (hopefully!) not talking about living people.

                Likewise, the laws about group plots tend to say things like that ‘owners can be buried without permission of anyone else, but all *living* owners must agree to having non-owners buried in it’. Which rather implies there are *other* sorts of owners besides ‘living’.

                I have not yet actually found the law that stops a funeral plot from being given away like all other property of the dead, though.Report

              • Avatar DavidTC in reply to Kazzy
                Ignored
                says:

                Deceased people own things all the time.

                They own things so much we have an entire *procedure* where the government appoint a representative of them (As they are legally incompetent) to deal with their estate. Please note the word ‘estate’ means ‘the entire total that someone, dead or alive, owns’.

                Mostly because we’d like their stuff *back* in circulation, so we put in a representative to give it away. Kinda selfish of us, but no one seems to complain.

                I don’t know why I’m even having a discussion as to whether dead people own things under the law. That’s such an obviously true statement it’s not even up for discussion.

                If someone breaks into my house, I can complain.

                Can you complain if you’re two months old? Or in a coma? No, you cannot. Can those people own property? Of course they can. So I have no idea of your point.Report

              • Avatar nevermoor in reply to Kazzy
                Ignored
                says:

                Presumably the police (perhaps goaded by the “victim”‘s survivors). Sounds like a crime to me.Report

              • Avatar nevermoor in reply to DavidTC
                Ignored
                says:

                They have very specific investment rules that generally stop that from happening.

                Honest question from ignorance: did cemeteries get hurt in the RMBS crash? I ask because a standard investment rule is “only invest in AAA-rated securities” which is why RMBS was such a valuable concept (it created good yield on AAA-rated tranches that allowed them to sell to organizations with strict investment rules. That said, the only such orgs I have in mind are pension plans and similar entities.Report

              • Avatar DavidTC in reply to nevermoor
                Ignored
                says:

                I really have no idea.

                But cemetery maintenance organizations can’t really fail. They have basically no overhead.

                If the investments do poorly, the cemetery just ends up with crappy or no maintenance, and either that continues until things turn around, or some people complain and the local government gives the organization some extra money.Report

    • Avatar trizzlor in reply to trizzlor
      Ignored
      says:

      @don-zeko @north : There was a point at which the voter said “Whatever the good Churches do, I don’t want them getting special tax treatment if they discriminate by race”. Why should sexual orientation be different?Report

      • Avatar North in reply to trizzlor
        Ignored
        says:

        Yes there was. That point was when the Churches were doing stuff only tangentially related to religious functions and often was directly partnering or getting subsidies from the government for those activities. This is not one of those activities.Report

        • Avatar trizzlor in reply to North
          Ignored
          says:

          The point I was trying to make was that if we have this conversation about what responsibilities churches have to non-discrimination, then we wouldn’t have to ask every time an issue like this comes up if it’s vindicating the slippery slope argument. We would have a bright line and we could simply say “these people are free to persuade their church to change but we know a priori that the government will not ever get involved”.Report

  8. Avatar Chip Daniels
    Ignored
    says:

    I’m about 80% with the Church here for all the reasons people list above.

    The remaining 20% is the based on the question of whether this was a religious transaction between members of a congregation or if this was a business transaction between customers and an establishment.

    Churches very badly want to have a foot in both worlds; when it comes to taxation, they are purely a membership organization removed from the world; when it comes to operating hospitals, schools, cemeteries and the like, they claim to be businesses, to take advantage of tax breaks, subsidies, zoning laws and the limited liability corporate form of business. When they heal the sick or bury the dead it isn’t done for free, with perhaps a voluntary donation- it is a going concern, a fee-for-service business.

    In a larger sense, they must have a foot in both worlds. The mission of a church, almost any church, is to engage with the world, to proselytize and evangelize, to treat and heal. “Leave Us Alone” is contrary to their stated purpose.

    Not surprisingly this double sided nature leads to questions like this.Report

    • Avatar North in reply to Chip Daniels
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      says:

      I’m not 100% conversant with Catholic doctrine but I don’t think this would be considered a public service. The Catholics have been operating their graveyards for millennia, they don’t just bury anybody in them. That’s part of the faith. I very sure they don’t bury non-Catholics in them.

      I’m 100% with your inclinations when it comes to areas where they’re genuinely trying to have their cake and eat it too like adoption services, hospitals and the like or businesses that are just run by the religious but we’re talking about a graveyard here; like potentially the literal church yard. There are areas that we who’re on the right side of the debate need to recognize is too far and back the fish off of. In my eyes this is squarely in that zone.Report

      • Avatar Chip Daniels in reply to North
        Ignored
        says:

        I don’t even mean it as a criticism, about eating their cake and having it too;

        Its more a criticism of us political types attempting to squeeze organized religions into our simplistic political framework of Public vs Private spheres when they straddle both. Its more a call for us to recognize the interlocking and interdependent ways our public and private lives, our individual and communal selves interact.

        Like I said, overall I’m about 80% in the Church’s corner here.Report

      • Avatar DavidTC in reply to North
        Ignored
        says:

        The Catholics have been operating their graveyards for millennia, they don’t just bury anybody in them. That’s part of the faith. I very sure they don’t bury non-Catholics in them.

        Actually, nothing in canon law prohibits non-Catholics from being buried in Catholics cemeteries. So they often are, but there generally is some sort of *reason*. (Like their spouse or parent was buried there.)

        we’re talking about a graveyard here; like potentially the literal church yard.

        Just as importantly, we’re talking about something that barely exists, and it is never, in any American location at all, the *only* option. Almost every single locale in America has a public(1), secular cemetery with open spots. Whereas maybe 5% of them have any sort of church cemetery (Catholic or otherwise) with open spots.

        Most people can’t get buried in a Catholic cemetery because there is literally no Catholic cemetery taking new people anywhere near them!

        1) Well, technically, they’re specialized non-profits.Report

    • Avatar Brandon Berg in reply to Chip Daniels
      Ignored
      says:

      when it comes to operating hospitals, schools, cemeteries and the like, they claim to be businesses, to take advantage of tax breaks, subsidies, zoning laws and the limited liability corporate form of business.

      Could you elaborate on what tax breaks and subsidies are available to businesses but not to churches, and the areas that are zoned for businesses but do not permit churches?

      I also don’t understand why a church would want limited liability status. Limited liability is for shareholders; churches and other non-profits inherently have limited liability status due to the fact that they have no shareholders.

      When they heal the sick or bury the dead it isn’t done for free, with perhaps a voluntary donation- it is a going concern, a fee-for-service business.

      The key difference between a business and a non-profit organization is that a business is allowed to return profits to shareholders. Providing all services for free and funding operations entirely via donations is not part of the definition of a non-profit organization, and there’s no reason it should be.

      Edit: Searching a bit more, I do find some cases of churches suing over zoning restrictions, but their challenges involve a Federal law particularly designed to protect churches, not demanding to be treated like businesses.Report

      • Avatar Chip Daniels in reply to Brandon Berg
        Ignored
        says:

        Most churches protect their assets through the use of limited liability corporations; these are the entities they use to buy and sell land and operate businesses.
        Nonprofit organizations still hire and fire employees like businesses, they sue people like businesses; when they treat people, they receive public funding for Medicare just like a for-profit hospital.

        My point was contained in my reply to North, where I note that the error is in trying to force churches into the role of entirely public or entirely private.

        They are guided by faith, and we as a society try to give them as wide a latitude as possible in the exercise; but in some of their functions like hospitals they also serve the public like a business, and we as a society have decided that there is less freedom in that exercise.Report

        • Avatar Burt Likko in reply to Chip Daniels
          Ignored
          says:

          This is where the gray creeps in to the black-and-white rubric that would be easy to apply if only there weren’t any gray.

          Having been involved in litigation against one, I’ve learned that the archdiocese of Los Angeles controls a number of nonprofit corporations, which own developed land and lease out apartments and mobile home space. The clergy who serve as officers of these corporations say — and even as an adversary I took them at their word — that this is part of their mission to provide shelter to the poor, as well as a prudent management of assets gifted to the archdiocese. (As a rule, these tend to be low-income, low-rent properties.)

          So in their capacity as landlords, these nonprofits are bound by law to comply with nondiscrimination laws. Which means that the church houses non-Catholic families, same-sex couples, and indeed does not inquire as to the Catholicism of its tenants’ daily lives. There is no priest seeking converts in the apartments rented from these church-owned nonprofits. Catholic tenants pay the same rent as non-Catholics.

          This seems right to me, because renting property doesn’t seem like a particularly religious act even if the clerical officers describe it as fulfilling a religious vocation (housing the poor). Running a cemetery looks different to me. @veronica-d describes this as “sacred ground” as while the law doesn’t recognize such a distinction, at least not in those terms, it’s a quite nicely-phrased rule of thumb. (I suggest that the legal phrasing would be “substantial interference with a religious activity” but I think the question of “is it taking place on sacred ground?” would reach the same result 90-95% of the time.)

          If anything is sacred ground, it’s where the honored dead are interred and remembered. Providing succor to the bereaved and assurances of an afterlife strike me as core functions of religion. So maximal deference to religious entities is appropriate here.

          Another case, with different facts? Can’t say. This case, with these facts, should go to the church.

          It’s striking that even in this forum where SSM advocacy was a strong consensus even before the Obergefell decision and fear of governmental over-deference to religion in the wake of the hobby Lobby decision was strong, no one is offering even weak support for the gay couple’s claim here.Report

          • Avatar DavidTC in reply to Burt Likko
            Ignored
            says:

            This seems right to me, because renting property doesn’t seem like a particularly religious act even if the clerical officers describe it as fulfilling a religious vocation (housing the poor).

            Then, to bring up a slightly different issue: Why are is that non-profit allowed to do it?

            501(c)(3)s like the archdiocese of Los Angeles (and the sub-non-profits it’s apparently set up?) are supposed to exist for the purpose of ‘charitable, religious, educational, scientific, literary, testing for public safety, fostering amateur sports competition, or preventing cruelty to children or animals’.

            This is why they assert their ownership of those things is to ‘provide shelter to the poor’.

            If it’s not religious, though, what it is? It’s probably not charitable, unless they’re noticeably below market value.

            Or, to put it another way: Why do they get to not pay property taxes on *their* investment, when everyone else does?Report

          • Avatar Chip Daniels in reply to Burt Likko
            Ignored
            says:

            @burt-likko
            I think we political types often forget how nuanced and flexible the law is, and how filled with exceptions and tests for “reasonableness”.

            A lawyer friend of mine said that there is one correct answer for every legal question: “IT DEPENDS”.

            Which is to say, case law over the centuries has grappled with just this intertwining interconnectedness of religion and cultures, the individual and the group.

            Slippery slope arguments usually overlook this, by asserting that there is no difference between This case, and That obviously absurd one over there.Report

          • Avatar Stillwater in reply to Burt Likko
            Ignored
            says:

            It’s striking that even in this forum where SSM advocacy was a strong consensus even before the Obergefell decision and fear of governmental over-deference to religion in the wake of the hobby Lobby decision was strong, no one is offering even weak support for the gay couple’s claim here.

            Excellent point. If nothing else, it shows that even pretty hard-core SSM advocates arrive at their views via reasoning rather than Team Membership.Report

      • Avatar DavidTC in reply to Brandon Berg
        Ignored
        says:

        I also don’t understand why a church would want limited liability status. Limited liability is for shareholders; churches and other non-profits inherently have limited liability status due to the fact that they have no shareholders.

        I don’t understand why you think the word ‘shareholders’ is the magic term there, or there’s some sort of ‘inherent’ limited liability there.

        Non-profits do have *owners*, usually called ‘members’. They own a portion of the corporation.

        If something *you own* does bad things, you can get sued for it, in general. It doesn’t matter if it’s your slave, your robot, your cat, your tree, your for-profit corporation, or your non-profit corporation…without specific laws to the contrary, you are liable for the actions of your property.

        Limited liability is granted to non-profits via the law, just like for-profits.

        Providing all services for free and funding operations entirely via donations is not part of the definition of a non-profit organization, and there’s no reason it should be.

        Providing *some sort* of public service, however, is part of the definition of a ‘public charity’ under 501(c)(3), which is the specific type of non-profit that almost all churches are. They must have the purpose of ‘charitable, religious, educational, scientific, literary, testing for public safety, fostering amateur sports competition, or preventing cruelty to children or animals’.

        Unlike for-profit corporations, 501(c)(3)s do not have the power to be any sort of organization they want, or do any activities they want.

        To look at the biggest offenders: Non-profit hospitals.

        Selling medical services does not really appear to be under any of those. Taking donations, or having volunteer doctors(1), to allow them to provide medical services *below market value* would qualifies as charitable, I guess, but…do non-profit hospitals actually *do* those things? If a non-profit is purchasing goods and labor at roughly market value, and *reselling* them at roughly market value, that doesn’t appear to be ‘charitable’ behavior of any sort.

        And thus, removing charity, they have to count as ‘religious’. (Or be a teaching hospital and thus ‘educational’, obviously.)

        Well, a lot of us have a problem with a hospital that merely has a religious name and ownership count as a ‘religious’ organization. The premise of ‘religious’ that list is almost certainly to imply that *spreading religion* is a charitable/educational action. That it’s the same sort of thing.

        Which people can take issue with whether or not spreading religion is any sort of social good, but let’s table that debate…the problem is, religious non-profit hospitals don’t appear to be doing that *either*. That does not appear to be anywhere near their main goal, which is apparently providing *health care*. Which is all well and good…but it’s is not one of thing that qualifies an organization as a ‘public charity’.

        Letting anything qualify as ‘religious’ because it’s done while wearing a cross is rather dubious…there is a list in 501(c)(3) for a *reason*.

        1) Which is how free clinics, which *are* charities, work.Report

  9. Avatar pillsy
    Ignored
    says:

    I read the linked article, and if it said the couple was planning on suing the Archdiocese, or anybody else for that matter, I missed it. It did say they were holding a press conference, but I’m trying to figure out what slippery slope a press conference would send us hurtling down.

    If they sue over this, my understanding is that they would (and should) lose. In the absence of a suit, though, what’s the problem?Report

    • Avatar Kazzy in reply to pillsy
      Ignored
      says:

      Well, I think the broader question of classifying this as “discrimination” as we commonly use that term might itself be a move down the slope. That can be accomplished without a successful lawsuit, though it certainly helps.Report

      • Avatar pillsy in reply to Kazzy
        Ignored
        says:

        I don’t think individuals are doing anything wrong by arguing (without, I add, recourse to the courts) that their church is doing something discriminatory. It’s not even clear to me why their argument is wrong in and of itself, as opposed to wrong as a justification for government meddling in the affairs of a religious organization.Report

        • Avatar Kazzy in reply to pillsy
          Ignored
          says:

          @pillsy

          Wrong? No. But if they are successful in getting this to be seen as “discrimination” in any meaningful way, than it would seem a step down that path. A full on tumble to the end? No. But broadening the definition of what is considered discrimination against gays was a concern of anti-SSM folks so doing just that would at least partially confirm their fear.

          I’m not weighing in on who is wrong or right about that… only if/how this could be construed as part of the “slippery slope”.Report

          • Avatar pillsy in reply to Kazzy
            Ignored
            says:

            But broadening the definition of what is considered discrimination against gays was a concern of anti-SSM folks so doing just that would at least partially confirm their fear.

            I just don’t see why I should pay their fear that people might disagree with them, and say so, any credence at all. If this really was their “slippery slope” all along, it just further supports my existing belief that they never had a reasonable objection in the first place.Report

            • Avatar Kazzy in reply to pillsy
              Ignored
              says:

              @pillsy

              I suppose that opens up the question of is a slippery slope necessarily a bad thing.

              Let’s say the recent SSM rulings were the beginning of a march towards “No discrimination against LGBT folks anytime anywhere by anyone.” Every iterative step towards that endpoint would be a slip down the slope, no? Some one cheer it while others would resist.

              Or does a slippery slope necessarily mean something nefarious following from something legitimate (or less nefarious)?Report

              • Avatar pillsy in reply to Kazzy
                Ignored
                says:

                @kazzy

                I think that if you’re making a slippery slope argument against something (like SSM), it’s hardly convincing if the thing at the bottom isn’t bad. Otherwise, why would anyone care to make any sacrifices at all to stay off of the slope?Report

              • Avatar Kazzy in reply to pillsy
                Ignored
                says:

                I think I see what you’re saying.

                “Slippery slope!” is typically used as an argument that Initial Action A should be avoided because it will inevitably lead to Final Action Z via the “slippery slope”. Since we believe Final Action Z is bad, we can justify opposition to Initial Action A — regardless of whether A is good or bad itself.

                So, no I am not sympathetic to such calls for a ‘slippery slope’ regardless of how this exercise turns out because it is immaterial to the rightness of SSM and SSM should be defended and defended vigorously.

                Are those who are/would cry “Slippery slope!” right insofar as were it not for SSM, this exercise would not be taking place? Fuck if I know. And ultimately, it doesn’t matter.

                So I guess the question is for Mike: What does it matter if people (critics or otherwise) are right that the SSM rulings paved the way for this action? That these folks wouldn’t be doing what they were doing were it not for those prior rulings? Why does that matter? Other than to justify the pearl-clutching we never really should have tolerated in the first place?

                “Hey… you were right! Legalizing SSM would embolden gays to pursue equal rights elsewhere. Good for you!”Report

              • Avatar trizzlor in reply to Kazzy
                Ignored
                says:

                I think the anti-SSM folks said “Legalizing SSM will make churches perform gay ceremonies!”; and now they’re saying “Look, you legalized SSM and someone is suing to make a church perform a gay ceremony!”. Which, yeah, seems to me like trying to steal a base in grievance baseball.Report

              • Avatar pillsy in reply to trizzlor
                Ignored
                says:

                Well, my objection is that, as far as I can tell, nobody has actually sued anybody. Conflating “arguing for” and “suing for” is, IMO, very unhelpful.Report

              • Avatar trizzlor in reply to pillsy
                Ignored
                says:

                Ah, wow, this is embarrassing but I totally missed your first comment that they’re just agitating for the church to change their policy. Yeah, I totally agree, I don’t see anything transparently wrong with someone demanding that their institution (church or whatever) become more inclusive. Were I in their shoes I would probably just find another church, but that depends on knowing a lot of details of this confrontation that we don’t have.Report

              • Avatar veronica d in reply to trizzlor
                Ignored
                says:

                Wait! They’re not suing? They’re just publicly complaining?

                So this whole conversation was an exercise in — what we kindly call — bullshit? Of course I’m allowed to say to a church, “Hey church, your policy is crap. You should change it.”

                That’s on the slippery slope toward — uh — free speech. What are we arguing about?Report

              • Avatar North in reply to veronica d
                Ignored
                says:

                Agreed, if there’s no lawsuit then they’re just yabbering and why is this news?Report

              • Avatar Oscar Gordon in reply to North
                Ignored
                says:

                To be fair, oftentimes, a calling a press conference is a prelude to announcing a lawsuit (especially if the lawsuit is being filed by an organization eager for some press attention).Report

              • Avatar Troublesome Frog in reply to North
                Ignored
                says:

                Even if there’s a lawsuit, I’m not sure it’s really news. If the lawsuit actually got somewhere, that would be pretty important. But people sue demanding all sorts of ridiculous nonsense all the time. It would be news if somebody *wasn’t* in the courts demanding something they haven’t a snowball’s chance in hell of getting.Report

              • Avatar nevermoor in reply to Troublesome Frog
                Ignored
                says:

                This. The slippery slope is if the court, citing SSM rulings (as it presumably would) actually required the requested action.

                Which I’d bet against strongly.Report

  10. Avatar Kazzy
    Ignored
    says:

    An interesting aspect of this that I just realized is that this involves a tombstone.

    Tombstones are erected after people are dead. I mean, I guess you could erect them beforehand. But it also seems reasonable that a cemetery owner might restrict such a practice.

    So, assuming these men DO have a right to not be discriminated against by the cemetery, do they retain that right posthumously? Who owns the tombstone? The guy buried underneath? The estate? The cemetery itself?Report

    • Avatar Richard Hershberger in reply to Kazzy
      Ignored
      says:

      It is not unusual for these “couples” tombstones to be put in place once one half is under ground, leaving blanks to be chiseled in later for the other half.Report

    • Avatar Francis in reply to Kazzy
      Ignored
      says:

      Good question! My best bet is that the issue would be addressed by the terms of the sale of the cemetery plot. I’ll further bet that ownership of the headstone would be vested in the entity which owns the cemetery, and further that the entity takes on no responsibility to repair or replace the headstone.

      Cemeteries are quirky little things. How do you set up the ownership of a plot of land that is intended to remain (mostly) open space in perpetuity that also has the revenue stream necessary to maintain the land? Perpetuity, as Prince reminded us, is a really long time.Report

  11. Avatar Don Zeko
    Ignored
    says:

    Not only is this complaint deeply silly, its very similar to a subplot from an episode of Ally McBeal that I watched this weekend, because I make bad life choices.Report

  12. Avatar Kolohe
    Ignored
    says:

    You put the Supreme Court on a gravestone, and pretty soon people will be asking to put pics of DC’s Brutalist buildings on their headmarkers, and that’s just not right.Report

  13. Avatar SEBoston
    Ignored
    says:

    Appropriately, we’re having this conversation on the anniversary of the first legal gay marriage in a church (May 17,2004, Arlington Street Church, UUAA, Boston MA). Despite dire predictions from the anti SSM crowd hat catastrophe would follow legalizing gay marriage in Massachusetts and we would experience the wrath of God, the Red Sox went on to break the Curse of the Bambino that year and win the World Series. Go gay marriage!Report

  14. Avatar Stillwater
    Ignored
    says:

    A lot of opponents to SSM predicted that the freedom of churches would be tested in the future. Are we seeing that here? And if so, does that prove them right?

    Maybe. But there’s nothing inherently wrong with “testing” the freedom of churches, is there? (So long as they pass the test, right?)Report

  15. Avatar Fortytwo
    Ignored
    says:

    Let me see if Rod Dreher has anything to say about this. He’s been even more over the top than usual recently.Report

    • Avatar North in reply to Fortytwo
      Ignored
      says:

      Rod loves to play Cassandra but he is somewhat discerning. If there’s no lawsuit then I doubt he’ll touch it and even if there was one I suspect he’d wait until he thought it might succeed before he began shrieking.Report

  16. Avatar Burt Likko
    Ignored
    says:

    I see strong consensus in the body politic that religious entities doing religious things should be let alone even if they do discriminate in otherwise-contrary-to-law ways. Gray areas might be operating a banquet hall for receptions and bakeries and photographers and there is a well established legal definition of “public accommodations” that can be modified if there is sufficient political will to do so.

    So I say the next legal test of significance as a milepost on this purportedly slippery slope will be polygamy.Report

    • Avatar veronica d in reply to Burt Likko
      Ignored
      says:

      So I say the next legal test of significance as a milepost on this purportedly slippery slope will be polygamy.

      Heh. Maybe.

      Of course, polygamy does not interfere in the lives of others in any important way, so where is the big “slippery slope”? A slope toward what? Where’s the harm, except in the fever dreams of conservatives?

      If polygamy happens, it will be legally complex, far more than marriage equity, precisely as it interacts with such things as immigration law and estate law in novel ways. In fact, I’m not sure just what form a polygamous marriage should take, which is quite a different situation from same-sex marriage, where we were simply asking that the legal frame of hetero-marriage be applied to same-sex couples. Easy peasy. But for polygamy, what precisely would the legal status be?

      In any case, if this is the “slippery slope,” then yay. I have no problem with “chosen family,” and other non-traditional family structures. I’m not gonna poke my nose in their business. Folks can stay out of mine.Report

      • Avatar North in reply to veronica d
        Ignored
        says:

        I agree with that and the complexity presents a massive problem for pro-polygamists on a political level because if low info people can’t easily understand it they’re not going to be very sympathetic. Gay marriage was easy “It’ll be like what you have now but with two guys or two gals.” Done. Move on to the meat of the arguments elsewhere. Polygamists often don’t even have a clue what the governmental form of what they’re looking for will look like. Typically they hand wave it away say “We have a right to marry multiple people, the details are for the Government to figure out” and right there you’ve lost most of the persuadable people you’re gonna be talking to.

        I have a feeling Poly is going to spin its wheels for a long time. It certainly is not going to win the way SSM did. I expect that if Poly marriage comes at some point it’ll be by an entirely different route but I’m honestly skeptical it ever will come.Report

        • Avatar veronica d in reply to North
          Ignored
          says:

          I can see something emerging, like a recognized chosen-family, next-of-kin structure. Plenty of “polycules” operate this way informally. I dunno. Clearly it couldn’t be precisely like marriage.Report

          • Avatar North in reply to veronica d
            Ignored
            says:

            Oh yes, I mean really in terms of the law blocking poly relationships other than chasing them around for tax issues and other “getting more than they should be allowed to be” stuff there’re not a ton of hurdles for poly relationships now.

            It just if they want state involvement like it is with binary marriage that’s gonna be a tough row to hoe politically speaking.Report

    • Avatar Michael Cain in reply to Burt Likko
      Ignored
      says:

      A constitutional guarantee for polygamy would probably do more to get the government out of the tax-breaks-for-married-groups than anything. IIRC, one of Heinlein’s remarks about line marriages was “after a while the capital improvements start piling up.” Particularly so if they stay within what is an essentially infinitely-lived marriage that never pays inheritance taxes.Report

  17. Avatar Murali
    Ignored
    says:

    Ok, let me disagree with everyone here. The case is not as cut and dried as people seem to think. About the only reason the case will fall flat now is because the court has 5 catholic justices and the lefty justices are not that lefty.

    So, let note 2 things which make their case stronger.

    First, the legal case:

    The legal case is less cut and dried for the following reasons.

    1. Burying is not a thing that the church reserves for its own membership. The claim that burial is a service open to the public is a colourable claim.

    2. The claim that the supreme court symbol violates Catholic doctrine may not even pass the sniff test (I’m not even sure how much the Catholic justices would be on board with this claim).

    3. The linked wedding bands is a symbol that the church is fine with.

    4. The church is willing to sell them the plot just not a headstone with that message

    5. Compare with the gay wedding cake issue. The bakery IIRC was willing to sell them a cake, just not a wedding cake (see point 4). The expressive and religious concerns the bakers had regarding the writing on the cake did not over-ride the demand for service. Whether or not someone has a religion, they must find some way to deal with their corpse when they die. Burial is one common way. Just because lots of weddings are religious doesn’t make weddings an intrinsically religious function. Consequently wedding related services are not protected under first amendment free exercise. Mutatis mutandis with burial. They don’t have to conduct the funeral service. They just have to provide land and tombstones.

    6. They have no objection to the little groom figurine or a “congratulations on your wedding” message per se since they were willing to put those symbols in other contexts. Therefore their reluctance to put those symbols together in this case was discriminatory. A similar point may be made about the wedding bands. If the plaintiffs can find a headstone of some dead judge or lawyer with a supreme court symbol on it, no 2 becomes true (and even if they don’t it still doesn’t sound plausible at all). So, the bakery case makes a precedent here in this way as well.

    7. Given 5 and 6 the bakery case sets adequate precedent to force the church to provide them the headstones they want. All it takes is a sufficiently sympathetic judge. As I mentioned earlier, that is probably the only thing that prevents this case from succeeding

    Next, for the social trends:

    1. The political beliefs of lefty professors today (esp regarding discrimination and other aspects of social progressivism etc), are usually a good indication of what people on the left will believe 15 years from now.

    2. Most political theorists I know* (and many whom I respect greatly even when I think that they are dead wrong) think that if your religious belief is unreasonable (vis a vis the evidence) it doesn’t get to underwrite a legitimate objection to coercive state policy.

    3. Many of these people also think that religious exemptions to laws are unjustified, regardless of how well justified the religious belief is.

    4. Pursuant to 3, they also believe that the state can legitimately coerce the Catholic church to hire woman priests and conduct gay marriages.

    5. Also pursuant to 3, they also believe that it is wrong for parents to raise their children in a religious tradition. (Parental interference with the religious beliefs of their children is wrong for the same reasons that state interference is wrong) And it would be legitimate for the state to coerce you if you did so.

    6. Given 1-4 there is some reason to think that people going to the university now will be much more comfortable forcing Churches to bury gay couples with whatever headstone they want.

    So, it will happen. Its not going to happen this time, but it will happen one day.

    At the very least, its going to happen in Europe first. After which a whole bunch of europhillic lefty americans will be okay with it.

    *These people span philosophy, political science and law departments. Wer’e not even talking about sociology department or social psychology department leftistsReport

    • Avatar Chip Daniels in reply to Murali
      Ignored
      says:

      As with most things, the law is whatever the courts say it is, and the courts generally base their opinions within the general consensus of culture in which they swim.

      Legal theories that were outlandish a few decades ago are found persuasive today because the judges and lawyers live and work and worship and play in the cultural sea that causes us, for example, to accept gender equality as natural and normal and simply a fact of nature, when only a century ago it was a radical concept.

      So is it possible that some future culture could see Christian doctrine as morally reprehensible, and forbid its teaching to children on the basis of public decency?*

      Sure.

      What would be the best way for Christians to prevent this turn of affairs and protect themselves?

      My gentle suggestion is to Stop. Acting. Like. Dicks.

      Stop parading around Target screaming at people about toilets, stop acting as if children buying candy bars with their food stamps is an insult to the baby Jesus, stop calling for a new Crusade to exterminate the infidel Muslims.

      Just stop.

      *A slight exaggeration of your point #5Report

      • Avatar Damon in reply to Chip Daniels
        Ignored
        says:

        The SC has made it clear that taking foreign views of similar laws under review is perfectly acceptable in their rulings. Maybe we need to start influencing European law to get our our court to listen?Report

        • Avatar Alan Scott in reply to Damon
          Ignored
          says:

          Yeah, but “foreign views of similar laws” require… similar laws.

          If Europe starts requiring churches to marry gay couples (and I think and hope it will) it will be because Europe has State Churches. An English citizen has a legal right, regardless of their religion, to marry in their local Anglican church. And that right will eventually be extended to same-sex marriage.

          SCOTUS isn’t going to look at the culture of those marriages–they’re going to look at the legal argument supporting them. And the legal argument doesn’t hold water in a country with separation of church and state.Report

          • Avatar Damon in reply to Alan Scott
            Ignored
            says:

            I was specifically talking about firearms. The SC has said that taking “international” views into consideration is perfectly reasonable, and used firearms as the example. And to your point, some jurisdictions, and even states in the US, have similarly restrictive firearm laws just like European countries do.Report

    • Avatar North in reply to Murali
      Ignored
      says:

      As far as I’m aware the Bakery case never got up to the supreme court so it seems to me 5 6 and 7 are defunct. Also you seem to be conflating a bakery with a church which is a hell of a lot of base stealing.

      #1 of your social trends seems nonsensical. Professors believed all kinds of politically idiotic things that haven’t been embraced by the wider left at a later date. Even the current ‘social justice’ trends going on right now rose once before in the early 90’s, failed to find purchase outside the academy and faded away before coming back again now. Without that point the rest of the numbered bullets implodeReport

      • Avatar Murali in reply to North
        Ignored
        says:

        The question of how binding an unchallenged lower court precedent is on the supreme court is one for the lawyers here, so I’ll throw it to them.

        The Catholic church runs hospitals and IIRC, it has far less freedom in terms of anti-discrimination for how it runs those hospitals. All a court has to do is say that graveyards are like hospitals in the relevant ways.Report

        • Avatar nevermoor in reply to Murali
          Ignored
          says:

          Literally nothing any judge has ever done formally binds the Supreme Court (not that I’d expect this case to make it there).

          The SC generally follows its own precedent, but is free to overrule it. See, e.g., the constant fight regarding Roe v. Wade, which (regardless of your views on “should”) the SC certainly could directly overrule.

          The SC considers lower court decisions for their persuasive value, but ultimately makes up its own mind (indeed, many cases heard in the SC are heard because the lower courts have issued conflicting rulings).Report

        • Avatar North in reply to Murali
          Ignored
          says:

          Yeah but trying to say hospitals are like graveyards is one hell of a stretch. Politically it’s another planet.Report

    • Avatar nevermoor in reply to Murali
      Ignored
      says:

      I do think it is cut and dried.

      1. a church cemetery isn’t a public speech forum, and it’s not clear what government action would apply, so there’s no (persuasive) free speech issue.

      2. The Church will clearly testify that it believes the symbols, in the context of a gay couple’s joint headstone, violate its religious beliefs. Courts will not attempt to adjudicate that point, but will take it at its word.

      3. I don’t find the “social trends” part persuasive. No Court is going to issue an injunction requiring the Catholic Church to hire a female priest or conduct a gay marriage (hell, we can’t even force Hobby Lobby to not discriminate against women).Report

      • Avatar Murali in reply to nevermoor
        Ignored
        says:

        @nevermoor

        a church cemetery isn’t a public speech forum, and it’s not clear what government action would apply, so there’s no (persuasive) free speech issue.

        Neither are bakeries, which is why now bakers and in the future maybe undertakers can be forced to make things which express ideas they find objectionable.Report

        • Avatar nevermoor in reply to Murali
          Ignored
          says:

          Absence of constitutional speech protections doesn’t end the analysis, but it starts it in a bad place when your claim is that you’re being prevented from speaking.Report

          • Avatar Murali in reply to nevermoor
            Ignored
            says:

            But the plaintiffs aren’t claiming that they’re being prevented from speaking. The defendants are claiming like the bakers that they are being forced to say things that they disagree strongly with.Report

  18. Avatar CJColucci
    Ignored
    says:

    I assume that the Archdiocese of Louisville has generally-applicable rules about its cemeteries. If I opened a cemetery, I could have generally-applicable rules, even though I’m not a church. So what are the Archdiocese’s rules? And why don’t they end the matter? But maybe the Archdiocese’s lawyers screwed up long ago and didn’t make rules, so the Archdiocese has been making it up as it goes along ever since. If so, I’m not sure they can pull a rule, even a religious rule, out of their butts now. Maybe they can, maybe they can’t. Cemetery lawyers should be getting calls about now.Report

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