The Maryland Supreme Court Confronts the Desecration of a Black Cemetery
The case of Moses African Cemetery is part of a larger pattern around the country.
JUST OFF RIVER ROAD IN BETHESDA, Maryland, a wealthy suburb of our nation’s capital, an asphalt parking lot covers the graves of two hundred African Americans. That parking lot is the subject of a lawsuit in which the pastor of the Macedonia Baptist Church, the Bethesda African Cemetery Coalition, and descendants of individuals buried in the Moses African Cemetery have asked a court to prevent a developer from buying the parking lot and the adjacent land and building for $51 from the Montgomery County Housing Opportunities Commission (HOC), the quasi-governmental agency that currently owns the property.
The sales agreement between HOC and the developer would have allowed for the parking lot to remain, or even to be built into a building or even a dog park. It’s hard enough to visit your ancestors’ graves when there are cars parked on top of them; it’s even harder when they’re under someone’s oven or shower—or mastiff.
On January 8, the Supreme Court of Maryland heard argument in this case. The courtroom was packed with religious leaders from around the state, civil rights advocates, the relatives of people buried in the Moses African Cemetery, and college and law school students.
This is the first time that a state supreme court has reviewed a challenge to the treatment of African-American burial grounds by private developers. Through this case, the Maryland Supreme Court has an opportunity to be a leader in protecting such burial grounds.
Before the Civil War, there were at least two plantations in the area near the cemetery-turned-parking lot. After emancipation, the people formerly enslaved on those plantations built a thriving African-American community.
Moses African Cemetery was formally established in 1911. Various historical documents, including death notices and obituaries, indicate that members of the River Road community were buried in the cemetery over the following decades.
But in the mid-1960s, a developer purchased more than twenty acres in the area—including the grounds of the cemetery—and constructed Westwood Towers, a large apartment complex. They then bulldozed the gravestones and paved over the cemetery to create a parking lot for the new residents. Some have reported that remains were discovered during the construction, but only some graves, if any, were moved. Cars have parked on top of those now-unmarked graves every day for half a century.
This is the context for Montgomery County’s HOC’s decision to sell the property to a developer, who would have been free to undertake new construction on the cemetery grounds. It was at that point that we brought a lawsuit to enjoin the sale.
Maryland law includes a statutory scheme that applies to the sites of current or former burial grounds. Under the law, such plots cannot be sold to anyone who would use them for non-burial purposes unless the current owner of the site obtains permission from a court to sell the property.
The court cannot give the owner that permission unless people who would have an interest in the outcome of the sale—including the descendants of those buried on that land—receive adequate notice of it and an opportunity for their opinions to be heard. And the court has the power to block the sale outright, or to impose restrictions or conditions that would be appropriate to the sale of land used as a burial site.
All of this makes sense. No one wants their parents’ or grandparents’ graves to be covered over by a parking lot, let alone a dog park. But the sad reality is that this has happened frequently throughout the United States, where untold numbers of housing developments and highways today sit over traditional African-American cemeteries, the presence of which often goes unmarked.
The oral arguments heard by the Supreme Court of Maryland in January are the latest link in a chain of legal developments related to the proposed redevelopment of the Moses Cemetery property. Back in October 2022, a circuit judge had granted an injunction against the sale of the property, finding that there are hundreds of bodies buried under the asphalt. The Appellate Court of Maryland reversed this decision, holding that the statute-at-issue in the case could not be used to block the sale of the cemetery because it was intended merely to provide an optional procedure that the owner of a burial ground could choose to employ if it wished to convey the property to a purchaser with “no strings attached”—that is, without any possibility of claims related to burial lots being made against the property.
The appeals court ruled that the property could be sold, therefore, but without the insulation from these sorts of claims they believe such a procedure would have conferred. The legal back-and-forth created enough of a delay that the developer that originally signed on to purchase the land in 2021 backed out, but the ruling would create an open season for developers interested in building on traditional African-American burial grounds.
The implications of the decision of the appeals court were clear, which is what then prompted my clients to ask the Supreme Court of Maryland to hear the case. In taking it, the justices had asked the parties to address not just the statute, but also the broader question of whether under equitable principles the owner of the burial ground who seeks to sell that burial ground for unrelated uses should be required to obtain court permission before doing so.
How could anyone disagree with the proposition that it is wrong to sell a burial ground to be used as something else—a dog park, a parking lot, a building—without restrictions, without conditions related to the treatment of those buried there, and without input from the community or from those related the individuals buried there? As critic and essayist Joseph Bottum once wrote,
How we live is important only if we see the consequential future flowing toward us—beginning, always, with the fact that we will die and must prepare our children to assume the burdens of culture. How we live is thick and meaningful only if we see the momentous past, the ancient ghosts, dwelling among us—beginning, always, with the fact that our parents have died and left their corpses’ care to us.
But, strangely enough, throughout this lawsuit, HOC has sought to get around exactly these realities and shrug off exactly these responsibilities. (Maryland Rep. and Democratic Senate primary candidate David Trone has apparently done the same, reportedly telling an activist who tried to provide him information about the burial site, “Who cares about that little cemetery?”) It’s now for the highest court in Maryland to face this issue directly and decide what protections our society will provide to the two hundred human bodies buried under that parking lot in Bethesda.
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