SJC Upholds Church’s Right to Re-Locate Cremains

March 24, 2023

Rejecting the approach favored by the Appeals Court, the Massachusetts Supreme Judicial Court (SJC) ruled in favor of the Episcopal Diocese of Massachusetts in Church of the Holy Spirit of Wayland vs. Marilyn J. Heinrich. Hemenway & Barnes represented the Diocese.

Jennifer Grace Miller argued the case before the SJC on December 4, 2022.

The case involved an Episcopal parish church in Wayland, MA which closed due to dwindling membership. On the church property was a “churchyard’” where cremated remains of former parishioners could be interred. Because the parish church was being closed and the property sold, the Episcopal Diocese sought to re-locate the “cremains” to churchyards in neighboring Episcopal parishes, or a space reserved for Holy Spirit parishioners in the local cemetery, or a place of the surviving family’s choosing. Almost all the families gave permission to move their ancestors’ cremains, but a few families objected. Edward Notis-McConarty and Donna Mizrahi filed an action on behalf of the parish and the Episcopal Diocese, seeking a declaration that the church was authorized to re-locate the cremains left in the churchyard. The trial court confirmed the right to move the cremains, but the Appeals Court reversed. Hemenway & Barnes successfully sought further appellate review.

Hemenway & Barnes argued on behalf of the Episcopal Diocese that the Appeals Court erred by recognizing a new common law right of perpetual internment for cremains in a former churchyard, which compromised the Diocese’s ecclesiastical authority by requiring the Diocese to perpetually maintain a former churchyard. Compounding that error, the churchyard was purchased by a church of a different denomination, one that does not believe in cremation.

The SJC opinion released on March 14, 2023 stated, “The court is fully aware that a decent respect for the memory of those who have been buried requires that there be no disturbance of the remains of one deceased unless the law as applied to the particular circumstances compels such a conclusion. Here, with considerable reluctance, that conclusion seems necessary to the court."

Hemenway & Barnes team included: Jennifer Grace Miller, Dylan O’Sullivan, Edward Notis-McConarty and Donna Mizrahi. Notis-McConarty has served as the Chancellor to the Bishop of the Episcopal Diocese of Massachusetts for more than 30 years.

Read the SJC decision

Watch Jennifer Grace Miller’s December 5, 2022 argument at the SJC

In the Search Archive enter Docket Number: SJC-13326

About H&B’s Appellate Practice

Hemenway & Barnes attorneys are known and respected advocates in the Supreme Judicial Court of Massachusetts and the Massachusetts Appeals Court, and have prevailed in precedent-setting cases in state and federal appellate courts throughout the country. Our practice includes representation in a wide range of civil appellate issues – both on cases that we have handled since day one and on those referred to us after an earlier proceeding.

Over the years, Hemenway & Barnes has represented dioceses, churches, synagogues, religious universities and schools, and nonprofit institutions in a wide variety of matters, including: First Amendment issues, ballot question committees and ballot question challengers, the Dover Amendment, RLUIPA, education law, and tax law at both trial and appellate levels.