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Carrier Monier admits that the cement planters, crotons, gardenias, wood chips and posts that are used to rope off her brother’s grave at a city-owned cemetery in Boca Raton, Fla., have no religious significance to her. But, she says, they are there to prevent visitors from walking over the grave, an act she considers to be sacrilegious. Barbara Cavedoni, meanwhile, has erected a crucifix near her brother’s grave, while Ian and Bobby Payne have erected a Star of David at the site where their son was buried. All three displays, as well as several others, violate the city-owned cemetery’s rules that prohibit the aboveground installation of memorials, monuments or enclosures. The reason for the prohibition is simple, say city officials. The clutter makes it more difficult for workers to cut the grass or dig holes for new graves. The dispute, first raised in U.S. District Court in West Palm Beach, and on Monday posed to the Florida Supreme Court, is the first challenge to the state’s 4-year-old Religious Freedom Restoration Act. The act provides, in part, that the government not substantially burden a person’s exercise of religion. In a case certified to it by the 11th U.S. Circuit Court of Appeals, the state high court was asked to determine two issues: First, does the act broaden, and to what extent, the definition of what constitutes religiously motivated conduct protected by law? And, if it does, will a city’s neutral, generally applicable ordinance be subjected to strict scrutiny by the courts when the ordinance prevents persons from acting in conformity with their sincerely held religious beliefs, even if those beliefs aren’t grounded in religious tradition? The case, brought by a group of people who have family members buried at the cemetery, landed before the state’s high court after U.S. District Judge Kenneth Ryskamp of the Southern District of Florida found that the city prohibition on vertical graves did not substantially burden the plaintiffs’ exercise of religion. Once the Florida Supreme Court issues its ruling, the case will go back to the 11th Circuit, which will ultimately decide the dispute. The appellants contend that because the decorations express sincerely held religious beliefs, the regulations must give way to their personal preferences for vertical grave decorations under the Religious Freedom Restoration Act. They are joined in their contention by the Liberty Counsel, whose president and general counsel researched and drafted the state act. The Liberty Counsel, along with Florida Gov. Jeb Bush, filed amicus briefs in support of the plaintiffs. In his brief to the court, Bush’s general counsel, Charles Canady, said the Legislature’s reason for adopting the act was “to prevent any contraction of the religious liberty enjoyed by the people of Florida.” The city, meanwhile, argues that because the religious beliefs are personal to the plaintiffs and are not required by Christianity or Judaism and are not universal among Christians and Jews, such personal religious beliefs are not protected. The city is joined in its contention by the International Cemetery and Funeral Association and the Florida League of Cities, which filed amicus briefs. The cemetery association, in its brief, said that such regulations are important because without them cemeteries would not be able to properly manage their grounds, “resulting in a chaotic cemetery environment.” On Monday, justices wondered whether the plaintiffs were saying that no limits could be established as to what would or would not be considered an appropriate memorial in a cemetery, particularly one owned by a government. “I can’t get by the fact that it’s government land and they are allowing, under conditions, individuals to use that land. If we were to say that the Religious Freedom Restoration Act does not allow the government to use its land the way it sees fit, doesn’t that establish a preference?” asked Justice Barbara Pariente. Douglas Laycock, a Texas lawyer who represents the plaintiffs, replied: “Free exercise of religion had always, from the founding [of this country] had special constitutional protection,” he said. “The question is whether the ordinance substantially burdens a person’s exercise of religion.” Fort Lauderdale, Fla., attorney Bruce Rogow, a law professor at Nova Southeastern University and a veteran civil liberties advocate, argued for the city that if the plaintiffs’ interpretation of the law was upheld, it would lead to “absurd and anarchic results.” “There is absolutely no religious significance to most of the vertical decorations, even though the appellants have attempted to clothe their decorations with personal religious significance,” Rogow said. As an expert witness for the city of Boca Raton, University of Miami religious studies professor Daniel L. Pals came up with a four-prong test, which Ryskamp used in making his ruling. He said courts should consider whether a religious practice can be found in sacred texts, whether it has been in consistent practice or doctrine, whether it is present throughout the history of the religious tradition or whether it has been observed consistently in recent times. If the practice meets none of the criteria, Pal said, it should be considered a matter of practical preference. Pariente worried that the test might be “too narrow” in terms of what the Legislature intended to protect. Rogow disagreed, saying the rule creates a framework within which the Florida RFRA can be applied. “There is nothing wrong with creating a framework for the application of the statute. If there is no framework, then it creates a more chaotic situation,” Rogow said. “These people come and they build their own personal shrines.”

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