On Wednesday, October 6, the US Supreme Court will hear oral arguments in an important free speech and protest rights case. Death Ref has been covering this case for a while and you can read those previous posts here. In brief, the Westboro Baptist Church, which is based in Topeka, Kansas was sued by Albert Snyder after its members protested outside his son’s military funeral in Maryland. Snyder’s son was a US Marine and the Westboro Baptist Church, led by Fred Phelps and his daughter Shirley, protested outside the funeral with signs which proclaimed “Thank God for Dead Soldiers” and other, similar statements. The WBC is also known as the group God Hates Fags and fervently believes that soldiers are dying in Iraq and Afghanistan because America has embraced homosexuality, therefore God is letting the deaths happen.
Albert Snyder’s case has been working its way through courts for a few years now and the US Supreme Court faces a particularly difficult set of arguments. Warren Richey’s piece in the Christian Science Monitor does an excellent job of positioning the case within a broader historical context.
And it looks like this decision will be historic, in one way or another. The politics involved are making for odd mixes of both conservative and liberal thought. It is also really difficult to know how the Justices will respond during the oral arguments.
The Santa Fe New Mexican published a feature story last week about the often difficult and uneasy situations created when gays and lesbians are faced with the death of their partner. In so many cases, the surviving partner is not considered part of the family and is intentionally or unintentionally branded with outsider status. He or she is left out of decision-making and grieving rituals before, during and after the death of a life partner. Grief over the loss of a loved one is often compounded by a lack of understanding and/or compassion on the part of the partner’s family, which then may extend to an oblivious or even hostile larger community.
John wrote this past May about the extra end-of-life legal hoops for same-sex partners in Minnesota. Governor Tim Pawlenty vetoed a bill that would have given same-sex partners in long term relationships the legal right to the other partner’s dead body for funeral arrangements and final disposition of the remains.
Several couples are profiled in the New Mexican article. Take the instance of Tom Rotella’s partner:
When Tom Rotella’s partner died in California in 1998, his family recognized Rotella as the decision-maker. But after Rotella’s employer, the Los Angeles Public Library, announced the death in a newsletter, someone started subscribing to pornographic magazines in Rotella’s name, and there was a “mass exodus” of friends, Rotella said. “I was alone.” A contingent of colleagues did come to the funeral to support Rotella, he said, but his own parents declined, ostensibly to spare his father from learning that his son was gay. “That killed me,” he said.
Or take the case of Lynne Roberts:
Lynne Roberts’ partner fell seriously ill in 1988 after they had been together about eight years in New York City. The hospital waited for the woman’s ex-husband to sign papers allowing treatment, although Roberts was the one who brought her partner to the emergency room. While Roberts had been invited to all the family gatherings, “I was put on the periphery,” Roberts said. The family never called her with reports on her partner’s condition, and when the woman eventually died (the two were separated at the time) the family didn’t call Roberts or invite her to the cremation or burial.
These cases are disturbing and unfortunate. Of course, it’s not like this for every gay or lesbian couple dealing with the death of their partner. There are many compassionate and understanding family members, hospitals and funeral homes out there that do not discriminate or create difficult situations for same-sex partners. However, there is still a long way to go—legal and cultural—in allowing all those in the LGBT community the same rights and dignity as heterosexuals when it comes to issues of human compassion in the face of death, dying, grief and mourning. Last year’s Academy Award winning movie, A Single Man, based on the novel of same name by Chris Isherwood, dealt with one man’s grief after losing his partner in a car accident. The film is set in the early 1960s, a time when being closeted was much more a fact of life for so may gay men and women, especially since the 1969 Stonewall riots had not even yet occurred. And while much progress has been made in the intervening years, there is still a long way to go.
There are books that deal specifically with the legal, familial and cultural hurdles of same-sex partners dealing with the loss of a loved one. I’ve listed a few here.
Death Ref has been following the Westboro Baptists Church’s funeral protests since our start. In a nutshell, the Westboro Baptist Church (WBC) protests outside funerals for veterans killed in Iraq and Afghanistan. The WBC claims (and has always claimed) that since America condones homosexuality God allows soldiers to die in both Iraq and Afghanistan. The logic is convoluted but the centerpiece of the WBC’s theology. As a result of these protests, which began in 2003 or so, many states passed laws which either banned funeral protests or ordered the WBC to stand at some distance away.
Last week, a federal judge decided that one of those laws (in Missouri) was unconstitutional, stating that it violated the protection of free speech. What I am waiting for is when the US Supreme Court hears a case about the WBC protests in October. It is really hard to tell what the politics of this case will do to the traditional liberal-conservative split. And it will be one of the few Supreme Court cases dealing with American funerals.
Per usual, Death Ref will keep everyone in the loop.
Roadside memorials involving religious symbols — invariably Christian crosses — have long caused controversy regarding their legality with the Establishment Clause of the First Amendment, also known as the separation of church and state. Because roads are managed by state and local governments, detractors argue that planting crosses implies a state endorsement of religion or particular religions. A 2007 district court ruling disagreed, claiming that “crosses merely [send] a secular message about death.”
This ruling was reversed on Wednesday in a federal appeals court with a case about roadside crosses for deceased Utah highway troopers — an apparent state-endorsement of religion double whammy (government employees on government property being commemorated with Christian crosses, unlike arguably slightly less controversial cases involving private citizens doing the same).
As the WSJ Law blog states, the judges held that “a ‘reasonable observer’ could conclude that the presence of the crosses amounted to a state-endorsement of Christianity” and further that
“This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol],” the judges wrote, adding elsewhere in the opinion that “unlike Christmas, which has been widely embraced as a secular holiday. . . . there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death.”
Those who have been paying any attention at all, willingly or not, to the vitriol around present-day religion in America can be sure this won’t be the end of this and similar cases.
One of the lesser-known classic blunders is trying to prevent jovial Benedictine monks, living peacefully in their Louisiana monastery, from selling hand made wooden caskets to the general public. Not unlike starting a land war in Asia or a battle of wits with a Sicilian. Stated simply, the odds aren’t that good.
So it goes that the monks of the Saint Joseph Abbey of St. Benedict were ordered by the state to cease and desist selling their hand crafted caskets to the good people of Louisiana. Why is this you might ask? Well, Louisiana laws stipulates that only ‘funeral establishments’ can sell ‘funeral merchandise’ such as caskets.
And here is that law:
Louisiana Revised Statute 37:848
C. It shall be unlawful for anyone to engage in the business of funeral directing or embalming as defined in R.S. 37:831 unless such business is conducted by a duly licensed funeral establishment.
But what does that mean? Well, let us look at RS 37:831 for clarity:
Louisiana Revised Statute 37:831
(37) “Funeral directing” means the operation of a funeral home, or, by way of illustration and not limitation, any service whatsoever connected with the management of funerals, or the supervision of hearses or funeral cars, the purchase of caskets or other funeral merchandise, and retail sale and display thereof, the cleaning or dressing of dead human bodies for burial, and the performance or supervision of any service or act connected with the management of funerals from time of death until the body or bodies are delivered to the cemetery, crematory, or other agent for the purpose of disposition.
The problem with this law is that it seems to contradict the US Federal Trade Commission’s oversight of the funeral industry, usually just referred to as the Funeral Rule. The second article at the top of the page is the first one that I have seen which highlights this problem.
There is a lot of history as to how and why the Funeral Rule (which most people don’t know exists) came into being. In a nutshell, the Funeral Rule states what a consumer’s legal rights are when paying for a funeral. The FTC helpfully publishes Paying Final Respects: Your Rights When Buying Funeral Goods & Services which is the law, literally, for the American funeral industry.
This all brings me back to the Saint Joseph Abbey monks because FTC rules clearly state that any person can:
Provide the funeral home with a casket or urn you purchase elsewhere. The funeral provider cannot refuse to handle a casket or urn you bought online, at a local casket store, or somewhere else — or charge you a fee to do it. The funeral home cannot require you to be there when the casket or urn is delivered to them.
So unless I’m missing something (and I could be) it appears that Louisiana state law is trying to supersede federal law and that, generally, is frowned upon by the US Courts. Indeed, the general wisdom on ‘third-party casket sales’ is that consumers have every right to purchase these funeral goods without hindrance and that a funeral home cannot refuse to use said third-party casket. Coincidentally, the August-September issue of International Cemetery, Cremation and Funeral Association Magazine (one of my favorites…) has a lengthy discussion on using third-party caskets, such as the ones made by the monks.
Now, I know what you’re thinking: AHA!!!! But these monks are not consumers they are producers of caskets and therefore not covered by the FTC Funeral Rule. This is correct but still a problem because the general public is being denied its federally backed right to purchase these caskets.
In my reading of the FTC Funeral Rule, the state of Louisiana cannot dictate whom the public buys caskets from and, as such, cannot control what constitutes a legitimate casket maker. Or, at least, can’t say that the St. Joseph Abbey monks have to be a ‘funeral home’ in order to sell their caskets.
All of this, then, brings me to the Institute for Justice, a Washington, DC based, capital ‘L’ for Libertarian, public interest law firm. The IJ is representing the monks in their court case against the state of Louisiana and presenting the case as a total violation of the monks’ Constitutional rights. What I’m not clear on is why the IJ isn’t just making the easier point about the FTC rules.
Unless, of course, the Institute for Justice doesn’t really care for the Federal Trade Commission, which would make sense given its Libertarian ethos.
Don’t get me wrong– I love the Libertarians. As a group, the Libertarians equally antagonize most American political parties and that is always good to see.
I just wonder if the video that the IJ produced on behalf of the monks (please see below) is a little more, ummm, over-the-top than it needs to be? Rarely do I have trouble distinguishing between an old Saturday Night Live commercial and an actual advocacy ad but this one comes close.
Besides, the state of Louisiana is going to lose this case. A few weeks ago, Meg posted a piece on Casket Company Trust Busting currently going on in America and it is clear that unfair business practices are on the funeral industry radar.
Don’t pick on the monks Louisiana. You aren’t just messing with some jovial band of Benedictines. Oh no. You are staring into the steely, cold gaze of the Libertarians…
There’s been much talk of late about what happens to your online social connections, not to mention your email and all the other ways you exist virtually, after you die. With Facebook, Twitter, MySpace and others there’s you and then there’s virtual you.
As more and more people join the virtual you ranks, the implementation of protocols and practices become necessary when the real you dies.
Yesterday, Twitter announced their new policy for deceased users. Prior to this, they had no policy in place.
In July, the NY Times published a story about what happens to your Facebook account after you die. Facebook’s policies, specifically the ability to “memorialize” someone’s Facebook page, have been in place since October, 2009.
But one size does not fit all as policies and practices vary greatly among the various email and social network providers, making it a confusing maze for those trying to navigate through it after a loved-one’s death. Various sites attempt to sort it all out. But, as technology changes and new social networking and email sites emerge, so too will protocols need to change. In writing this post, I ran across a socialmedialawstudent.com post discussing the legal ramifications of deceased users and their “digital property”. It seems future lawyers are trying to understand it too—perhaps all the better to eventually litigate it, I imagine.
Think about this: a typical scenario might be a person who has a Facebook, Twitter and Gmail account—and probably a work email too—although I imagine most family member’s are less concerned with work email and understand that companies and organizations have exclusive rights to their employee’s email accounts. Ultimately, however, your virtual fingerprints are everywhere. Gaining access after your death—should someone need or want to—can be potentially confusing and frustrating for everyone. And what if it goes completely against your last wishes? Do you want your family and possibly friends, noodling around in the remains of your virtual life?
All sort of websites have emerged to help you figure out these existential questions and more. Some of the sites, like 1000memories.com, are for the living to remember and memorialize the dead. Some sites, like legacylocker.com, are virtual vaults that keep usernames and passwords safe until you die and the info is then released to selected friends and family members. And still other sites, like mylastemail.com, allow you to craft out messages while you are still alive that will then only be released to friends and family upon your death.
Despite the best efforts of Facebook, Twitter, Yahoo and others to address the post-mortem needs of their members and the people who survive them, it’s still an ungainly, swirling, complex mass of legal, moral and ethical issues. It seems progress is being made, but I think it will always be a messy business the more you and virtual you become intertwined and perhaps ultimately, indistinguishable.
A few weeks ago, Dr. Atul Gawande wrote a good piece on End of Life decision making for both patients and doctors. Gawande is a staff writer for the New Yorker and a surgeon at Brigham and Women’s Hospital and the Dana-Farber Cancer Institute. He was also interviewed by Terry Gross on Fresh Air about the same topic. Both the essay and interview are quite good and I would suggest that everyone (regardless of age) take some time to mull over when you no longer want medical treatment for a terminal condition.
This is an important question to think about since death is assured at the end of life.
But how you die and what quality of life you have during that process is a much broader question.
I would encourage everyone to spend at least one hour discussing these issues with next of kin. That’s more time spent discussing death than most people do in a lifetime.
The Arlington Cemetery story just keeps going and going. At this point, and based upon the reporting largely by the Washington Post, it looks like Arlington Cemetery is going to require a review of the entire cemetery.
I have no idea how that will work or how much money it will require but it’s going to get complicated.
The issues at Arlington Cemetery have gotten so complex that I have added an Arlington Cemetery tag so that people can directly follow the stories.
Two things happened last week: 1.) The former head of Arlington Cemetery testified before a US Senate Sub-committee and he plead the 5th Amendment on some question. The 5th Amendment. 2.) It’s become clear that no one knows how many graves are mis-labeled, incorrect, or non-existent.
American Public Media’s Marketplace has a short radio segment about a consumer advocacy group suing the three major casket companies for monopolizing the market. A federal judge will decide later this week whether the companies’ distribution policy of selling caskets to anyone but delivering them only to funeral homes creates an unfair market for competition and consumers who want more choice.
A possible word slip by a casket company official may be indicative of the industry’s attitude. From the transcript:
Mark Allen from the Casket and Funeral Supply Association of America insists there’s plenty of competition in his industry. “I’m contacted every week by a new upstart company that’s trying to get some advice for getting started in this industry.”
A new “upstart” company? Doesn’t he mean “startup”? So much for downplaying hostility.
I am going to guess that more than a few people saw this story earlier in the week. It’s a classic dead-bodies-are-so-creepy narrative, which is made all the better because the story involves a totally normal, lovely old woman who kept said corpses in her home.
In this particular case, it was 91-year-old Jean Stevens keeping her dead husband in the garage and her dead sister in the spare bedroom. Here is the real shocker: these situations are not uncommon. They pop up from time-to-time with the usual macabre sense of horror and fascination. Indeed, when I was a child in Cincinnati, OH an older woman who lived in my neighborhood kept her dead father in the house for months. A whole army of children watched as the police went into the house and eventually wheeled out the dead man on a gurney (covered in a sheet), coughing from the smell.
What is slightly different about this Pennsylvania case is this: the dead bodies in question were embalmed, buried in their graves, and then exhumed for Jean Stevens. Who or whom did the exhuming has not been revealed. She then placed the bodies above ground.
I give Stevens credit for keeping both bodies undiscovered for a number of years. It also looks like Stevens was/is next-of-kin for both her husband and sister, which means that she had/has the legal right to determine final disposition for the dead bodies. She was fine until she had the bodies disinterred and moved to her home. This would be why the District Attorney is saying that Stevens can build a crypt on her property which could then be used for the husband and sister.
The DA is in a tight spot here, too, because he is talking about using Pennsylvania’s Abuse of Corpse law to charge Stevens with a misdemeanor. Here is that law:
Pennsylvania Statute: 5510. Abuse of Corpse.
Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.
In case you are wondering, this is the same law used to charge people with necrophilia related crimes.
Which brings me to the following point. Without a doubt, Stevens improperly exhumed two different dead bodies and then improperly kept both bodies above ground. What I’m not so clear on is whether she outraged ordinary family sensibilities. I say this because it is clear that Jean Stevens committed these incomprehensible acts out of both love and grief. Furthermore, if she’s the last family member on the planet then whose ‘family’ is being outraged? These are philosophical arguments that don’t necessarily stand firm before the law.
That said, I expect that the DA won’t actually pursue misdemeanor charges. If he’s smart, he’ll help Stevens raise money for the crypt.
Macabre as this story initially sounds, it’s a useful lesson on how the law sees death in contradistinction to how family members do the same. Besides it not nearly as gruesome as this other Pennsylvania corpse story.
Alas, and unfortunately, most of the reporting uses the easiest hooks and angles. The WNET-TV nightly news video at the top is a perfect example.
The situation at Arlington National Cemetery keeps getting more and more complicated. I wrote last week about the mismanagement of Arlington’s burials and you can find that post here: Fixing Arlington Cemetery. To its eternal credit, the Washington Post has doggedly followed the story and the above article ran today.
As it reports, the burial problems at Arlington are so severe that military officials are willing to publicly discuss mass dis-interments and DNA testing. This is the last scenario that I know anyone in the entirety of the United States government wants to happen but Arlington’s problems are probably that bad. My hunch is that the entire scope of what’s wrong is a lot worse than even the cemetery investigators comprehend.
Arlington National Cemetery has over 330,000 graves. The already identified problem areas are a smaller piece of the entire cemetery but if the situation grows and grows then the US Military (particularly the Army which handles the cemetery) will have an unprecedented debacle on its hands.
Over the weekend, the Washington Post’s Dana Milbank published a column on the debacle at Arlington National Cemetery in Washington, DC. There is a reason that I am interested in Milbank’s column but before I explain why, here’s a brief recap of Arlington’s current problems: 211 unmarked graves, misplaced headstones, and the dumping of human ashes in dirt, along with speculation that there are up to 15,000 instances of such desecrations, all brought to light by whistleblower Gina Gray.
Milbank’s column follows on from over a week’s worth of reporting about all of these problems and more. I’ve listed many of those articles below. The first report to come out was by Mark Benjamin at Salon.com and you can find it below too.
The point, I think, is this: Dana Milbank and everyone else got information from a person who saw what was going on at Arlington and blew the whistle. Gina Gray, whom Milbank names, worked for a short time at Arlington until disagreements with her superiors caused her to be fired. She also served in the Army and it seems clear that her sense of duty to the dead soldiers overrode any sense of job preservation. She could have kept quiet about the problems that she saw but she didn’t. She contacted reporters until the issue finally made its way to the Inspector General’s office. It’s worth noting, I think, that Mark Benjamin’s reports appeared in Salon on July 16, 2009. Almost a year ago now. I don’t actually see this as a situation where the Inspectors moved too slowly. Instead, it seems as if the situation quickly unwound and became a lot more complicated than initially expected.
Regardless, Arlington National Cemetery will see these problems fixed. That’s not much comfort for families who are not sure whether or not their dead loved one is affected and it never will be.
The problems being reported are a serious situation and they will be studied for some time to come as examples of the worst things that could happen to a cemetery.
