By Steve Waring
A previously unenforced Wisconsin state law that makes no distinction between a mausoleum and a columbarium has halted columbaria projects in three communities.
The Rt. Rev. Steven A. Miller, Bishop of Milwaukee, and the Very Rev. Kevin Carroll, dean of the Cathedral Church of All Saints, have asked Episcopalians to help preserve churches’ burial rights.
The issue is becoming more urgent because the state legislature usually adjourns near the end of May. Most states distinguish between a columbarium, which contains only cinerary urns, and a mausoleum, which contains above-ground tombs and by state law can be constructed only at a cemetery.
The current Wisconsin law went into effect in 1933.
Churches continued to build columbaria until 2013, when the common council in Cedarburg, a small town about 25 miles northwest of Milwaukee, refused to renew a use permit for a $50,000 outdoor columbarium proposed by Advent Lutheran Church. In December 2014, after researching the law and consulting with a lawyer, the church authorized site preparation.
City officials promptly issued a stop-work order and threatened to prosecute if construction proceeded. The work stopped after just a few hours.
The Rev. Janis Kinens, pastor of Advent Lutheran Church, told the Milwaukee Journal Sentinel that her congregation was unlikely to participate in any legal action, and it hoped the legislature would clarify the issue.
Dean Carroll said he learned of the law in December when a reporter from the Journal Sentinel called him for comment on the situation in Cedarburg. The timing of the news was especially unfortunate.
All Saints’ installed a 104-niche wood and brass columbarium in its narthex about 10 years ago. Since then all the niches have either been filled or reserved, and the cathedral was in the early stages of planning to increase the number of niches to more than 300.
“This issue goes far beyond the scope of municipal ordinances or zoning,” Dean Carroll said in a letter [PDF] he issued with Bishop Miller. “State interference in the burial of our dead is a violation of the First Amendment and the Religious Land Use. It may also be a violation of the Institutionalized Persons Act, a federal law that bars state and local governments from using their zoning codes to discriminate against religious institutions.”
In response to questions by the Journal Sentinel, Michael Berndt, chief legal counsel for the Department of Safety and Professional Services, issued an opinion stating that columbaria are a type of mausoleum bound by the same state laws that regulate structures for storing human remains above ground.
Image of the columbarium at Trinity Church in Wauwatosa, Wisconsin, by Steve Waring