While the greater public sentiment has turned against statues honoring the Confederacy, cemetery operators should anticipate a counter-challenge to the removal of a Lost Cause monument. Support for the Lost Cause monument can be just as fervent as the calls for its removal. With emotions running high in both directions, the removal of the Lost Cause monument should be anchored firmly to cemetery governing documents. If those documents are ambiguous, the cemetery should first address those weaknesses.
As noted in our prior post, it is universally accepted that a cemetery may amend its rules and regulations to apply retrospectively to existing burial lot owners. If the rules and regulations do not include an offensive monument provision, one should be added. The offensive monument provision should include notice procedures where the burial lot owner is not known or uncertain. Please recall that Lost Cause monuments were often erected on lots purchased by, or gifted to, Confederate memorial societies that no longer exist. When the lot owner is known, he/she should be given the opportunity to remove the monument. The rules should authorize the cemetery to proceed with removal when the lot owner does not comply. When the lot owner is not known or is uncertain, the removal provisions could call for publication notice that allows for interested third parties to accept removal of the Lost Cause monument. Under those circumstances, the cemetery may want to consider an indemnity provision from any party seeking to assume possession of the monument. If there are no takers for the Lost Cause monument, the rules should authorize the destruction of the monument without liability to the burial lot owner or anyone claiming an interest in either the lot or the monument.
When rules and regulations need to be amended to include an offensive monument provision, the cemetery should also address ambiguities concerning the limited rights acquired with the purchase of a burial lot. The rules and regulations (and burial contract and IR assignment form if necessary) should clearly state that ownership of a burial lot conveys only the right to inter human remains and to memorialize that individual. The rules should also set out the procedures and requirements for transfers of burial lots.
Lost Cause monument supporters will likely argue that the statue’s removal amounts to a violation of private property rights and free speech. That is an argument erroneously based on fee simple property rights. Cemetery governing documents should clearly refute that misconception. Burial lot owners have limited rights.
Lost Cause supporters may also assert that a Confederate monument should be retained to honor history and valiant soldiers. That ignores that the Lost Cause is a false narrative and Lost Cause monuments were typically erected without specific reference to a fallen soldier. The reality is that such monuments are a violation of a cemetery’s purpose, and it was a mistake to allow them in the first place. It is time to correct that mistake.