If a racial justice challenge is made against a Lost Cause monument, the cemetery’s regulations typically vest authority in the cemetery to remove monuments deemed offensive.   Through their rules and regulations, cemeteries reserve the authority to deem what is, or is not, offensive.  The following were taken from cemetery websites found through a Google search (cemetery regulations monument offensive):

  •  Removal of offensive structures, etc.  If any monument, effigy, or other structure placed upon any burial unit shall be determined to be improper or offensive by the cemetery, it shall be the right and duty of the cemetery to remove such structures in accord with the terms of notice given by the cemetery.
  • If any Memorial, structure, or any inscription to be placed on same, or any embellishment whatsoever, shall be determined by the Cemetery, upon inspection, to be offensive or improper, the Cemetery reserves and shall have the right to (a) refuse to authorize the placement of such Memorial or object; or (b) if already in place, the Cemetery shall have the right, at the Owner’s expense, to remove, change or correct any such offensive or improper Memorial, object or inscription.
  • Items judged by management to be unsightly, offensive, weathered, out of compliance with regulations, hazardous, a hindrance to maintenance or inappropriate for a sacred place.
  • Section 8.05  Offensive Objects   If any marker, effigy, structure, improvement of the object whatsoever, or any inscription be placed in or upon any lot which may be determined by the Director of Cemeteries to be offensive or injurious to the appearance of the surrounding lots or grounds, the Director or his authorized representatives shall have the right to enter upon such lot and to conceal such offensive object. The Department of Cemeteries will attempt to notify lot owners when an offensive object has been placed on their lot with or without their knowledge to provide them with the opportunity to correct the offensive condition. If lot owners have been notified of offensive conditions but fail to correct those conditions in the time specified by the notification, any charges for removal of offensive objects will be billed against the lot.

Recall from our first post (The Confederate Dilemma) that the Forest Hill spokesman state their Lost Cause monument was protected as “an expression of free speech of a private party”.  Cemetery regulations such as the above preclude the argument that the burial lot owner has freedom of speech to erect any form of monument or memorial on his/her burial lot.  Regardless of whether the monument is meant to memorialize an individual or a cause, the cemetery may remove the monument if it deems the monument offensive to the families of other lot owners or inappropriate for the decorum sought by the cemetery.

A cemetery’s governing documents generally reserve the right to amend the rules and regulations and bind existing lot owners to those changes.  The following is an excerpt from The Cemetery Lot: Rights and Restrictions:

If a cemetery is to be a place of tranquility suitable for relatives of the deceased to visit in their desire to ease the emotional shock of death and to show respect for the dead, it seems necessary that the governing body of the cemetery have the power to promulgate and enforce rules regulating monuments, decoration of graves, and other aspects of the cemetery’s operations.  … In other areas of the law, courts have generally refused to permit one party to make changes in a contract or to reserve the right to do so.  But in recognition of the unique character of a cemetery lot, courts have modified the usual law of contracts and permitted the governing body to promulgate and enforce reasonable new or changed rules against prior purchasers.  (See pages 383 and 384 for omitted citation)

If necessary, cemeteries should update their rules and regulations to clarify their authority to address offensive monuments.

In our next post about the Lost Cause monument, we’ll look at the possibility of a counter-challenge.