Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Resurrection Cemetery and Mount Olivet Cemetery Inc. v. DILHR, Case No. 149-083 (Wis. Cir. Ct. Dane County, June 9, 1976)

Digest Codes:  ET 483.10

The employers are nonprofit corporations engaged in operating cemeteries. Each corporation has a board of directors, officers and employees to conduct its business affairs which include the sale and maintenance of burial lots and opening and closing of grave sites. Office workers are employed as well as grave diggers who open and close graves, mow grass, and generally maintain the appearance of the cemeteries. Funds for operation of the cemeteries are provided from the sale of cemetery lots to families who wish to bury their dead and such sale price usually includes sufficient sums of money for investment for perpetual care and maintenance of grave sites. Wage payments to workers employed are paid by bank checks imprinted with the name of each corporation and deductions for social security and state and federal income taxes are made from each paycheck.

The issue is whether the employees of the two cemetery corporations perform services for a non-profit organization

Held:  The employers contend that their employees are exempt under the Unemployment Compensation Law because the employees were in the employ of a church or association of churches and an organization operated primarily for religious purposes.

The employer cemetery corporations do not and cannot transmit their income to the Roman Catholic Church. The court concludes that the department's determination that the employees of the employers are not “in the employ of a church or convention or association of churches” is a permissible interpretation of the statutory provision and is one to which the court accords due weight because the department is the agency charged by the legislature with administration of the statute. The everyday meaning of the term “operated primarily for religious purposes” and not the tenets of the Roman Catholic Church must be used to answer the question of whether or not cemetery workers are engaged in covered employment under the statute. The department made this distinction when it found as a fact that “although certain sectarian religious ceremonies are performed before, during and after interment of the dead, the employers are non-profit organizations operated primarily to bury the dead and are not operated primarily for religious purposes”.

Some courts have recognized this distinction while others have not.  Those courts which have made the distinction have held that the operation of a cemetery, even a cemetery affiliated with a particular religion, is not a religious activity. Other courts have not recognized this distinction and have allowed the tenets of a particular religion to determine the meaning of a statute. The courts which have carefully adhered to this principle have held that cemeteries are not operated primarily for religious purposes. Chesed Shel Emeth Society v. Unemployment Compensation Comm., (Mo. 1957), 203 S.W. 2d 454, the Supreme Court of Missouri, in a unanimous decision, held that a non-profit cemetery corporation which limited burial solely to those of the Jewish faith was required to pay unemployment taxes on the wages of its employees. After first noting that cemetery companies generally are not exempt from the payment of social security taxes, the court held:

“The appellant maintains it operates a synagogue for memorial services and worship. This synagogue is primarily used in connection with the operation of the cemetery. Appellant does not contend that it is exclusively a religious organization. It is not a religious organization, even though religious rites accompany the burial of the dead in the cemetery. Proprietors of Cemetery of Mount Au burn v. Fuchs, et al. We hold that appellant is not exclusively a religious organization under the above-quoted exemption clause.”

Many of the functions performed by the employers are secular rather than religious in character. The work of the six employees in the cemetery were all of a secular nature. A religious purpose is served by interring members of the Roman Catholic Church in the two cemeteries and in conducting religious rites in these cemeteries. However, most of the functions performed in these cemeteries are no different in character from those performed in secularly operated or nondenominational cemeteries. Applying an objective test, the department could rationally determine, as it did, that the employers “are not operated primarily for religious purposes” The department's interpretation is in accord with the underlying objective of the Wisconsin Unemployment Compensation Law, Section 108.01 (1) , Stats.

The employers alluded to the free exercise of religion clause of the First Amendment in connection with the consideration to be accorded to the canon law of the Roman Catholic Church. The court does not consider that the department's interpretation of the statutory provision in any way interferes with the free exercise of religion by the Roman Catholic Church or its members.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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