The sale of individual cemetery lots within a public cemetery will generally be subject to the same anti-discrimination provisions which are otherwise applicable to transactions in real estate – with exceptions for religious discrimination – sale of Minnesota Cemetery Lots, in certain cemeteries.

Religious Discrimination - Sale of Minnesota Cemetery Lots

Religious Discrimination – Sale of Minnesota Cemetery Lots

And the children of Heth answered Abraham, saying unto him,

Hear us, my lord: thou art a mighty prince among us:

in the choice of our sepulchres bury thy dead;

none of us shall withhold from thee his sepulchre,

but that thou mayest bury thy dead.

Genesis 23, Verse 5-6. KJV

Religious Discrimination – Sale of Minnesota Cemetery Lots

Both a Minnesota cemetery graveyard, and individual cemetery lots within the cemetery, constitute real property.

Anti-discrimination Provisions in the Sale of Minnesota Cemetery Lots

The sale of individual cemetery lots within a public cemetery will generally be subject to the same anti-discrimination provisions which are otherwise applicable to transactions in real estate – with exceptions for religious discrimination with respect to certain cemeteries.

The sale of individual cemetery lots within a private cemetery may be subject to the same anti-discrimination provisions which are otherwise applicable to transactions in real estate – with exceptions for religious discrimination.

M.S., Section 507.18 – Prohibited Restrictions

M.S., Section 507.18 – adopted in 1953 – identifies certain anti-discrimination restrictions which are generally applicable to Minnesota real property transactions, by providing in part as follows:

Subdivision 1.   Religious faith, creed, race, color.

No written instrument hereafter made, relating to or affecting real estate,

  • shall contain any provision against conveying, mortgaging, encumbering, or leasing any real estate to any person of a specified religious faith, creed, race or color, nor
  • shall any such written instrument contain any provision of any kind or character discriminating against any class of persons because of their religious faith, creed, race or color.

In every such provision any form of expression or description which is commonly understood as designating or describing a religious faith, creed, race or color shall have the same effect as if its ordinary name were used therein.

Subd. 2.   Restriction only is void.

Every provision referred to in subdivision 1 shall be void, but the instrument shall have full force in all other respects and shall be construed as if no such provision were contained therein.

Subd. 3.   Words constructively defined.

As used in this section the phrase “written instruments relating to or affecting real estate,”

  • embraces every writing relating to or affecting any right, title, or interest in real estate, and
  • includes, among other things, plats and wills;

and the word “provision” embraces all clauses, stipulations, restrictions, covenants, and conditions of the kind or character referred to in subdivision 1.

Erickson v. Sunset Memorial Park Association, Inc.

In 1961, the Minnesota Supreme Court addressed the issue of whether a public cemetery could discriminate on the basis of race with respect to the sale of cemetery lots.

In Erickson v. Sunset Memorial Park Association, Inc., the Minnesota Supreme Court determined:

  • that M.S., Section 507.18 was applicable to the sale of cemetery lots in a public cemetery, and
  • that any racial restrictions imposed by the cemetery association at issue were void, and of no effect.

Erickson v. Sunset Memorial Park Ass’n, 1961, 259 Minn. 532, 108 N.W.2d 434.

However, the Minnesota Supreme Court also identified that it would not strike down discrimination based on religious affiliation or creed by either:

Minnesota Cemetery Lots are Real Property

A deed conveying an interest in a cemetery lot is an instrument ‘relating to or affecting real estate’ within the purview of this particular statute.

Our statutes treat ownership of an interest in a cemetery lot as an interest in real estate.

Even though a purchaser of a cemetery lot may not acquire the fee simple title to the property, he has a right in the lot which the law recognizes and protects.

Private Cemeteries

The right of burial in a private religious or fraternal cemetery derives from membership.

While § 507.18 has application to deeds to cemetery lots executed by a cemetery operating a public burial ground, its provisions do not apply to private cemeteries operated by religious or fraternal corporations.

This court may assume

  • that in enacting § 507.18 the legislature acted with knowledge of the full scope of its constitutional powers and of prior legislation on the same subject and
  • that it did not intend to overthrow long-established civil rights by including within the provisions of the statute a purpose or object hostile to long-established religious practice.

Public policy of the State of Minnesota

Minn.St. § 507.18

. . .  the legislature has expressed the public policy of this state on the subject of discrimination against any of its citizens because of race, color, or creed.

By such act the legislature has declared that such discrimination

‘menaces and undermines the institutions and foundations of a democratic state’

and tends to condemn large groups to living conditions which are

‘inimical to the general welfare and contrary to our democratic way of life.’

The public nature and character of . . . [the] business and interests [of a public cemetery], as reflected by the provisions of c. 306, by virtue of which the state permits it to operate, should be distinguished from the private character of

  • cemeteries operated by religious and fraternal corporations under c. 307 and
  • cemeteries within the purview of the last sentence of § 306.02, which recognizes the right of a public cemetery association affiliated with a religious corporation to acquire properties to be used exclusively for burial of persons of that particular faith.

From time immemorial cemeteries and interment in them have had a close identification with religion.

This identification is natural to religion in civilized cultures.

An essential element of many religious beliefs, strongly held for centuries, has been that their communicants must be buried in consecrated ground in which only communicants of that particular faith may be buried.

The right of burial in a religious or fraternal cemetery derives from membership.

It is for that reason that church cemeteries are classified as private cemeteries in which the exclusive burial of communicants of a religious faith may be practiced in accordance with its beliefs.

We see no conflict between §§ 507.18 and 306.02, as the defendant suggests. . . .

The general terms of a statute are subject to implied exceptions founded on rules of public policy and the maxims of natural justice so as to avoid absurd and unjust consequences.

We are not to assume that the legislature, by enacting § 507.18, which confirms the civil right of equal protection under the law, intended to infringe upon civil rights relating to freedom of religion as provided by U.S.Const. Amend. I and Minn.Const. art. 1, § 16.

It seems to us that § 507.18 by necessary implication excepts private religious and fraternal cemeteries from its application.

This implication is so strong in its probability that the contrary thereof cannot be reasonably supposed.

Moreover, the legislature acted with full knowledge of the scope of its constitutional powers and of prior legislation on the same subject.

We are not to assume that the legislature intended to overthrow long-established civil rights by including within the provisions of § 507.18 a purpose or object hostile to religious practice.

Religious Discrimination – Sale of Minnesota Cemetery Lots; Private Cemeteries

Minnesota private cemeteries are those established by individuals, or by religious corporations – which may be formed pursuant to either M.S. Chapter 315, or M.S. Chapter 317A.

Under the U.S. and Minnesota Constitutions, the burial of persons in Minnesota private cemeteries may be restricted to persons of a certain religious affiliation.

However, the Erickson v. Sunset Memorial Park Association, Inc. decision did not indicate that the prohibition on racial discrimination identified in M.S., Section 507.18 would not be applicable to Minnesota private cemeteries.

Religious Discrimination – Sale of Minnesota Cemetery Lots; Public Cemeteries

The statutory definition of Minnesota public cemeteries is found in M.S. Section 306.87, Subd. 3, which provides in part as follows:

All cemeteries started or established as public cemeteries and

all cemeteries hereafter started or established,

 except cemeteries established by religious corporations,

are public cemeteries within the provisions of . . . chapter [306].

According to the above – somewhat circular – definition, public cemeteries are those cemeteries which:

  1. Were started or established as public cemeteries prior to the adoption of the original version of the statute in 1911; or
  1. Were started or established after 1911 – other than those cemeteries established by religious corporations – which may be formed pursuant to M.S. Chapter 315, or perhaps M.S. Chapter 317A.

The Burial of Persons May be Limited to a Certain Religious Faith

M.S., Section 306.02, Subd. 3 identifies that certain public cemetery corporations or associations may limit the burial of persons to a certain religious faith – at least in parts of its cemetery, by providing in part as follows:

A cemetery association affiliated with a religious corporation by such a provision in its articles

may provide for the acquisition of other cemetery properties within the state for the burial of persons of the same religious faith, exclusively.

However, any such religious affiliation must be identified in the articles of incorporation of the public cemetery corporation or association.

For a discussion of Minnesota religious corporations, see http://dahlelawchurches.com/

Religious Discrimination – Sale of Minnesota Cemetery Lots

Under Minnesota law, Minnesota private cemeteries may discriminate on the basis of religion with respect to the sale of cemetery lots, and the internment of persons therein.

Under Minnesota law, Minnesota public cemetery associations may discriminate on the basis of religion with respect to the sale of cemetery lots, and the internment of persons therein, if the association is affiliated with a religious corporation – as identified in its articles of incorporation.

Minnesota public cemetery associations may not discriminate on the basis of race with respect to the sale of cemetery lots, and the internment of persons therein.

While no Minnesota reported court decision has ever determined whether a Minnesota private cemetery may discriminate on the basis of race with respect to the sale of cemetery lots, and the internment of persons therein, absent a compelling religious purpose for doing so, a Minnesota private cemetery may be prohibited from discriminating on the basis of race with respect to the sale of cemetery lots, and the internment of persons therein.

Lindstrom, MN – 2017

In March of 2017, the U.S. Department of Justice opened an investigation with respect to the denial of an application made to the Chisago County Board of Commissioners by a group of Muslims from the European country of Bosnia to build a Muslim cemetery south of Lindstrom, Minnesota.

The board initially denied the Muslim group’s permit in December, 2016, even though the county’s planning commission had recommended its approval.

However, the board subsequently voted unanimously to approve the cemetery permit, after being warned that the county would face religious discrimination claims under RLUIPA.

See https://dahlelawchurches.com/religious-land-use-act-rluipa/

Copyright 2018 – All Rights Reserved

No claim to the text of statutory provisions, administrative documents, or judicial decisions.

Gary C. Dahle – Attorney at Law

Minnesota Probate and Cemetery Law Attorney

Religious Discrimination – Sale of Minnesota Cemetery Lots

2704 County Road 10, Mounds View, MN 55112

Phone:  763-780-8390  Fax:     763-780-1735

gary@dahlelaw.com

For a discussion of Minnesota probate law, see https://dahlelawprobate.com/ and http://www.dahlelawminnesota.com/ and https://dahlelaw.com/minnesota-probate/

For information on Minnesota Church Corporation law, see Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see http://dahlelawguardianships.com/

Topics of Interest:

 

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota cemeteries involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counsel.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota, or North Dakota, should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web site of Gary C. Dahle, Attorney at Law – https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com – may be held to be a request for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com does not constitute legal advice, or the establishment of an attorney/client relationship.

Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege.

Please use caution in communicating over the Internet. The Internet is not a secure environment and confidential information sent by e-mail may be at risk.

Gary C. Dahle, Attorney at Law, provides the https://dahlelawcemeteries.com – or www.dahlelawcemeteries.com web sites and their content on an “as is” basis, and makes no representations or warranties concerning site content or function, including but not limited to any warranty of accuracy, completeness, or the current nature of the information.

Minnesota Cemetery Links

Minnesota Association of Cemeteries: https://www.mncemeteries.org/

Find a Minnesota Cemetery: https://www.mncemeteries.org/find-a-cemetery

Minnesota Private Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=307

Minnesota Public Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=306

Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present:  http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificateshttp://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Recordshttps://moms.mn.gov/