Traditional Zoroastrian funerals require stone structures called Dakhmas — “Towers of Silence” — on which corpses are eaten by buzzards, because the Zoroastrian holy text bans other funeral methods.
Excarnatory funeral practices are classified as criminal “Abuse of Corpse” by many state statutes and constitute a misdemeanor to felony offense, thus making traditional Zoroastrian funerals illegal for the 11,000 Zoroastrians in the U.S.
The illegality forces Zoroastrian-Americans to transport their dead overseas which can be prohibitively expensive or to have funerals against their religious mandate.
In a recent scholarly legal article published in the Rutgers Journal of Law and Religion — titled: “Buried, Cremated, Defleshed by Buzzards?” — I analogized the Supreme Court case Church of Lukumi Babalu Aye v. City of Hialeah, noting that Zoroastrianism and the Santeria religion both mandate practices involving dead bodies of people and animals. Employing the decision in that case, I argued that traditional Zoroastrian funerals should be legal through a 1st Amendment Freedom of Religion Free Exercise Clause exemption.
Of the three tests courts could apply to a Zoroastrian funeral case, I advocated that courts use the test where an exemption would be granted unless the government could demonstrate a compelling reason not to.
Based on the government’s arguments in Hialeah, I predicted that the government in a Zoroastrian funeral case would argue that it has a compelling interest 1) in protecting public health, safety, and welfare; 2) in preventing the emotional injury that is likely to result from witnessing a religiously motivated excarnatory funeral; 3) in protecting the dead from desecration; and 4) in restrictive zoning.
The government’s interest in public health, safety, and welfare is not compelling because the government’s interest is limited to the degree of risk human corpses pose which is negligible according to the World Health Organization and the American Journal of Disaster Medicine. Further, Zoroastrian custom requires tying corpses down thus mitigating concerns about buzzards carrying off corpses. Moreover, several states have ‘body farm’ facilities which involve exposure of corpses to the elements and scavenging of corpses by animals, so differential treatment of ‘body farms’ and religiously-motivated excarnatory funerals would weaken the government’s argument.
The government’s interest in preventing the emotional injury that is likely to result from witnessing a religiously motivated excarnatory funeral is not compelling because the mourners of deceased Zoroastrians will not suffer emotional injury because they do not enter the Dakhma. Moreover, the excarnation does not occur within view of anyone, and it is a culturally accepted practice in the community.
Similarly, the government’s interest in protecting the dead from desecration is not compelling because whoever desires a traditional Zoroastrian funeral can say so in their Last Will and Testament.
However, the government’s interest in restrictive zoning is compelling, but only to the point of on par regulation with similarly situated enterprises such as body farms.
Given the need for buzzards to consume the corpse, the need to sun-bleach the bones after excarnation has occurred, and the state’s likely desire to zone Dahkmas far away from residential and commercial areas, a promising state to build a Dakhma in is Texas.
This is because the Forensic Anthropology Center or the body farm at Texas State University is well-established. Moreover, the local vulture population has already been used to study the effects of vulture scavenging on human decomposition as would occur in a Zoroastrian funeral.
Rutgers Law School graduate