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The Scary New American Cemetery: The Death of Individual Burial Choice and Custom

Professor Tanya Marsh

Tanya Marsh joined the Wake Forest faculty in 2010, following a ten-year career practicing real estate and corporate law in Indianapolis, Indiana, including nearly five years as the Vice President of Legal for Kite Realty Group Trust, a real estate investment trust traded on the NYSE. Tanya teaches real estate transactions and property.

Wake Forest Legal Scholar Examines 60 Years of Cemetery Law and Finds Commercialization Has Replaced Individual Choice, Family Custom and Religious Belief in Burial Decisions

Halloween, All Saints’ Day and Day of the Dead are celebrated with ancient rituals that help the living remember the dead – at least for a day.

For the rest of the year, we have cemeteries to memorialize lost ones. In these sacred spaces, the richest man in town rests beneath the tallest monument, the graves of little children are distinguished with nursery images and spouses remember their departed husband or wife with favorite Biblical passages or other expressions of love on their tombstones ¾ each of these gestures a legacy to their unique lives.

But according to Wake Forest University School of Law Associate Professor Tanya Marsh, these traditional and personal burial customs are increasingly being replaced with corporate-style conformity in modern cemeteries, where maximizing efficiency and profits is radically changing the look and feel of American cemeteries.

“The American cemetery is becoming a reflection of the desires of the funeral services industry rather than the wishes of the American public,” Marsh says. “The irony is that the laws that once gave great deference to families regarding burial practices, are now being used to institutionalize a commercial norm at the expense of individual choice, family custom and religious beliefs.”

For much of American history, Marsh says there were few laws governing cemeteries other than those for land use, health and safety. For example, cemeteries cannot be close to a city’s water supply. In the last 100 years, however, Marsh says the cemetery industry persuaded state legislatures to create laws regulating the creation of new cemeteries. Even for non-profit organizations, such as families and churches, the cost to build and maintain a cemetery, no matter the size, is for the most part prohibitively expensive.

“As a result, in urban areas especially, large for-profit cemeteries dominate the competition so that, for example, in Indianapolis, one company controls 56 percent of the burials,” Marsh says.

And because these cemeteries set the rules, families and individuals are given little choice. Rather than variety, the cemeteries control the size and materials used in monuments, even the wording on tombstones in some places, and many make no accommodation for environmentally friendly, or “green” burials.

Marsh says the changes in American cemeteries are starkly noticeable to anybody who has visited old cemeteries and then a new one. In new cemeteries, the deceased are buried below steel and concrete vaults and then the ground is compacted to make for a level, unbroken vista of grass. Marsh says that cuts down on lawn maintenance. The same is true for the size and variety of tombstones. Newer cemeteries require that tombstones be flush to the ground in order to make for easier mowing.

The limited choices and lack of variety in burial decisions is largely going unnoticed by the American public, Marsh says.

“Who goes and looks up the rules of a cemetery before they’re buried there?” Marsh says. “Very few people think about this ahead of time and when the time comes, they’re constrained because they’re having to make a decision on a short timeline.”