Abstract

Excerpted From: Taylor Phillips, Even in Death, Divided by Law: the Permanent Injustice of Cemetery Segregation in Southern Illinois and the Legacy of Isaac Burns, Local Civil War Veteran, 49 Southern Illinois University Law Journal 757 (135 Footnotes) (Full Document) (Summer, 2025)

Is death truly the great equalizer? This Article explores the history of cemetery segregation and the permanent injustice that results when the laws are ambiguous and the public is unaware. Starting with an overview of the history of cemetery segregation, this Article centers on the story of Isaac Burns, a local Civil War veteran. His journey from enslavement to service in the Union Navy, along with his personal life until his passing, humanizes this issue. It also highlights our collective failure as citizens to promptly recognize and address this concern. Burns's burial place is far less than ideal, sitting in what used to be the segregated section of the International Order of Odd Fellows Cemetery in Pinckneyville, Illinois. His grave is a site of neglect and experiences flooding, unlike the graves outside of the segregated section. However, Burns's grave is not an isolated incident. His final resting place represents a broader pattern of segregation. This pattern is even present in a well-known cemetery in Gettysburg, Pennsylvania, the Lincoln Cemetery, which was created to keep black veterans out of Arlington Cemetery.

Cemetery segregation was allowed through the 1950s until courts considered cemeteries to be “public accommodations” following the Supreme Court ruling in Shelley v. Kraemer. However, this ruling did not completely eradicate the issue. There are modern examples of cemetery segregation, specifically in the case of Pedro Barrera, a Mexican American man who was denied burial in San Domingo Cemetery in 2016. His case is documented, but there are likely many other cases like his that are unknown because of how laws are written and the lack of public knowledge on this issue, which this Article will address.

Another pressing issue addressed in this Article is the disappearance and destruction of African American Cemeteries. Several of these historic cemeteries risk being erased if they continue to be ignored, neglected, and mistreated. Several modern advocates are fighting to restore dignity to these forgotten cemeteries. The efforts of Rose Sturdivant Young, Sandra Arnold, and Lisa Fager show the importance of preserving African American burial grounds. These modern advocates are providing critical restoration to African American burial grounds, ensuring that the stories of those who were marginalized in life are not forgotten in death. Their work offers a valuable blueprint for future preservation efforts across the United States.

Although Illinois law prohibits cemetery segregation via a combination of the Illinois Human Rights Act, the Illinois Civil Rights Act of 2003, and the Cemetery Protection Act, these regulations remain insufficient in explicitly addressing the issue or providing effective means of enforcement. The laws concerning cemetery segregation in California, Texas, and Florida reflect a broader trend across the United States. While these laws may adhere to federal standards, their limited language reduces the likelihood of legal challenges arising in the first place.

This Article presents a foundational draft that aims to prohibit cemetery segregation explicitly. It utilizes key terms such as “cemetery” and ““segregation,” while also providing a clear definition of “cemetery segregation.” The intent is to establish a definitive and enforceable standard that ensures equitable treatment in burial spaces, making it easier for the public to understand and access this information.

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All things come to an end, just like this Article. However, unlike this Article, the end of a human life carries far greater weight. All humans live in the shoes of those who came before us. We remember the good and bad of our history to make the world a better place. But some events from history fall through the cracks, unbeknownst to a significant portion of people. When this happens, the effects can be dangerous.

We spend so much time in school learning about slavery and segregation. We learned of Rosa Parks' heroism in her refusal to give up her seat. We learned of the Montgomery Bus Boycott, which resulted in the Supreme Court's decision to declare segregation on public buses unconstitutional. We also learned about President Lyndon B. Johnson's signing of the Civil Rights Act of 1964 into law. However, I must admit that I reached my third year of law school before discovering that many cemeteries are segregated. Why does this feel different than buses or restaurants? Of course, all segregation is wrong. Yet, something about the dignity and permanence of a final resting place makes this hard to accept.

I invite you, as the reader, to envision Burns. Beyond his origins as a slave and his fight for freedom in the Union Navy, he was also someone's child, someone's husband, and someone's father. He had experiences similar to yours and mine. He laughed, cried, learned, failed, and succeeded in his life. He had good and bad days. He felt the wind on his face and the grass under his feet. He understood the profound joy of bringing new life into the world and the undeniable challenges that life brings us all. And ultimately, he died, just as we all will. He was mourned by those who loved him most and laid to rest. However, the difference between him and others lies in the permanence of human hatred at his final resting place. Despite this, the legacy of Burns and those like him will never end.

Though the shadow of human hate has obscured it, Burns's story is one of heroism that is invaluable to the research and advocacy in fighting against cemetery segregation. Burns was treated as if he were not equal, even in his death. And then, exactly 100 years after Burns's burial, Pedro Barrera faced the same treatment. If we do not explicitly address cemetery segregation in the legal language, the public will continue to face its consequences, often without realizing that an issue exists. Until Illinois and the rest of the states explicitly prohibit cemetery segregation, death is not truly the great equalizer; many more people like Burns will be buried beneath the shame of our nation's ignorance regarding the dark history of cemetery segregation.

Taylor. A. Sterling Phillips is a third-year law student at Southern Illinois Simmons Law School.