Yesterday's Birmingham News ran a story by Erin Stock about a most, most extraordinary case: that of Vietnam Veteran and hero Bill Terry. Mr. Terry died in 1969 in Vietnam, at age 20. His body returned home to Birmingham, but the Elmwood Cemetery, where he hoped to be buried, would not sell his family a plot--citing racially restrictive prohibitions in the cemetery's regulations. It will come as no surprise to any of us that this was a violation of the civil right act of 1866. Forty years ago the case of the Terry family was the talk of the nation. And again this weekend it's the talk of Birmingham, because there was a ceremony honoring him at the Alabama Veterans Memorial in Birmingham.
On July 3, 1969, an African-American soldier named Bill Terry, Jr., died in Vietnam. Like generations of African-American soldiers before him, stretching back to the American Revolution, Terry died fighting for his country. Because of his honorable Army record, Terry was given the traditional military escort back to his home in Birmingham, Alabama, where his body was taken to Elmwood Cemetery to begin the interment process.
When Terry’s widow and mother attempted to purchase a burial plot for Terry’s remains, they were refused by the cemetery manager. The reason: Terry was black. Since the other funeral arrangements were already in place, Terry’s widow and mother purchased a plot in Shadow Lawn Memorial Park, a traditionally African-American cemetery, and proceeded with the interment. During the same time period, another African-American was denied purchase of a burial plot at Elmwood,9 and joined with Terry’s widow and mother in filing suit in federal district court against the cemetery. The plaintiffs alleged “unlawful discrimination against Negroes as a class by Elmwood, which discrimination constitutes a badge or incident of slavery contrary to the thirteenth amendment of the Constitution of the United States and the 1866 Civil Rights Act.” In response, the cemetery pointed to the rules and regulations adopted by Elmwood in 1954, which provided in pertinent part:
Cemetery lots shall be owned only by human beings of the white and/or Caucasian race and the said lots shall be used only for burial of human bodies of the white and/or Caucasian race, and such ownership and use shall at all times be subject to the Rules and Regulations and By-Laws of Elmwood now or hereafter in force. Any attempted transfer of a lot or interest in a lot to one not authorized to own same shall be invalid and of no force and effect and the corporation shall not be obligated to honor such transfer.
Based on this section, the cemetery stated that they were justified in refusing sale to Terry’s wife and widow because Elmwood had “a policy of refusing burial in its cemetery to persons other than Caucasians which is based on the fact that all lot deeds for grave sites at the cemetery contain a provision limiting interment in Elmwood Cemetery to members of the Caucasian race . . . .” In arriving at their decision, the district court examined whether a burial plot constituted “property” under the 1866 Civil Rights Act. After the court defined a property right as “that type of relationship which is entitled to protection from a decision maker,” they determined that it may be “conclusively established that interests in cemetery lots are property rights.” Following a detailed analysis of property rights and a refutation of all of the defendant’s arguments, the court held that under the Act, Elmwood was “legally obligated to sell burial plots in its public cemetery to all United States citizens, on equal terms, without regard to race or color, and has unlawfully abridged plaintiffs’ rights under such statute by refusing to sell them cemetery lots solely because they are Negroes.” The court invalidated all of Elmwood’s rules and regulations that were contrary to this holding, thus legally declaring that such race-based and discriminatory burial policies were no longer acceptable.
Following an overwhelming outpouring of public support from both Birmingham and the rest of the country,21 Bill Terry’s body was subsequently exhumed and reburied in Elmwood Cemetery on January 3, 1970. Twelve hundred marchers followed Terry’s body from Our Lady of Fatima Church to Elmwood Cemetery, where Josephite Friar Eugene J. Farrell told the marchers: “We are rejoicing, not mourning. This is not really a funeral march. This is a victory march for Billy and for truth and right.” Terry’s body is now interred per his final wishes in Elmwood Cemetery, along with deceased Alabama governors, United States senators, one of the original members of the Motown Temptations, and legendary Alabama football coach Paul “Bear” Bryant.
Comments