Cemetery/photo by J. Albert Diaz Cemetery/photo by J. Albert Diaz

A challenge to the New Jersey statute restricting sales of headstones by operators of religious cemeteries has been dismissed.

U.S. District Judge Michael Shipp turned back the equal protection and due process challenges to the controversial law. The 2015 revision to the Religious Corporations Law bars operators of religious cemeteries from selling memorials, vaults or mausoleums or from running funeral homes or allowing others to run a funeral home on the cemetery grounds.

The Roman Catholic Archdiocese of Newark challenged the law, arguing that it struggles to care for old stones in its 11 cemeteries because it does not own them and cannot move or repair them. It began a program in which monuments are not individually owned, but are subject to contracts providing for their perpetual care.

The archdiocese program, which provided for replacement of a monument if necessary, in perpetuity, became popular, and was not offered by private headstone dealers, according to the Institute for Justice, a libertarian public interest law firm in Arlington, Virginia, that provided representation to the archdiocese. The New Jersey law was designed to protect private companies selling monuments, that group claims.

Shipp ruled Friday that the suit’s claims of violation of the archdiocese’s equal protection rights were undermined by the state’s assertion that its law protected consumers who are particularly vulnerable after the death of a loved one. Plaintiffs said the law is not a consumer protection measure but Shipp said it reasonably functions to minimize harm. Shipp also found it “at least debatable” that the law would serve the legitimate public purpose of regulating the manner in which the tax exemption it grants to the archdiocese is used.

IJ said it would seek to bring its case to the U.S. Court of Appeals for the Third Circuit.

“Economic protectionism is not just wrong, it is unconstitutional. We look forward to making this argument on appeal,” IJ senior attorney Justin Pearson said in a statement.  The archdiocese and two individual plaintiffs were represented by Jeff Rowes and Gregory Reed from IJ along with Shalom Stone of Brown, Moskowitz & Kallen in Summit.

Lee Moore, a spokesman for the Attorney General’s Office, said the state had no comment on the ruling.

The current suit follows another where private tombstone companies sued the archdiocese in state court, seeking to halt its sale of headstones.

In the earlier case, plaintiffs argued the archdiocese shouldn’t sell headstones because it is exempt from the regulations imposed by the state on secular companies. Middlesex County Superior Court Judge Frank Ciuffani dismissed the case in May 2014,  and the Appellate Division affirmed that ruling in June 2015.

IJ said in a statement Friday that the current law, which it deems “protectionist,” was drafted and passed by the Legislature based on pressure from lobbyists for the funeral industry.