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Washington Report 102000

      
Date Published: 
102000
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

Federal Court Rules Tennessee Casket Law Unconstitutional 

 
by Robert M. Fells, Esq., general counsel 
 
In late August, the U.S. District Court for the Eastern District of Tennessee held that the state law restricting the retail sale of caskets exclusively to licensed funeral directors was unconstitutional. Specifically, the court ruled that the Tennessee law violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution by denying the plaintiffs, third-party retail casket sellers, the freedom to sell caskets to the public. This lawsuit marks the first time that a federal court has invalidated a state law regulating the sale of caskets and was the subject of a column by George Will, reprinted in the August-September issue of ICFM.
 
Plaintiffs filed the litigation as a civil rights case challenging a section of the state statute that permits only licensed funeral directors to engage in “funeral directing,” defined in part as the selling of funeral merchandise such as caskets. None of the plaintiffs held a funeral director's license and had been ordered by the state funeral board to stop selling caskets until they had obtained a license. According to the court, Tennessee provides two methods of becoming a licensed funeral director: 1) complete a course of study at an approved mortuary school and undergo a one-year apprenticeship, or 2) complete a two-year apprenticeship program and assist in at least 25 funerals. Only one mortuary school, which costs between $10,000 to $12,000 for its 16-month program, is approved within the state.
 
The court acknowledged that the state had a right to regulate casket sales provided such regulation is “rationally related to legitimate government interests.” The state claimed that it had two purposes in requiring that only licensed funeral directors may sell funeral merchandise. “The first purpose is 'protecting the vulnerable funeral consumer and insuring competency in the funeral services profession.' The second is to 'protect the public health, safety and welfare of the public.' These are clearly legitimate governmental interests. ... However, the mere assertion of a legitimate government interest has never been enough to validate a law.”
 
The court noted that “the key issue in this case is whether the funeral merchandise sales licensure requirement is a rational means of achieving these purposes. This court holds that it is not. The requirement has nothing to do with public health and safety. A casket is nothing more than a container for human remains. ... In those rare instances where human remains (before burial) might present a public health concern, funeral directors do not rely on caskets to negate the threat. Instead, they rely on embalming, adjustments to the funeral arrangements, and other arrangements such as the use of plastic encasements for the body.”
 
Health and Safety Not Involved
“The evidence also shows that Tennessee does not really believe that caskets play any role in the promotion of public health and safety. The State does not require the use of caskets in human burials. ... Moreover, the Federal Trade Commission ('FTC') requires funeral directors to accept caskets provided by third parties.
 
“Caskets, whether purchased from a funeral director or from an independent retailer, are not intended to prevent the spread of communicable diseases. ... Such being the case, the purpose of promoting public health and safety is not served by requiring two years of training to sell a box. Moreover, none of the training received by licensed funeral directors regarding caskets has anything to do with public health or safety.”
 
The state argued that the funeral law incorporates the FTC Funeral Rule written price disclosures into its requirements but that independent retailers were not covered by the Funeral Rule, thereby leaving the public unprotected. However, the court distinguished the need for the Funeral Rule to cover funeral directors while not obligating third-party sellers. “The FTC issued the Rule to prevent funeral directors from selling preselected packages of goods to consumers so that consumers were forced to purchase goods and services they did not want. Funeral providers were 'bundling' the cost of funerals; hence, the need to have these costs separated for consumers.”
 
The court went further in holding that “requiring the disclosure of casket costs by independent retailers is unnecessary. The plaintiffs, as independent casket retailers, do not provide funeral services; they only sell caskets, urns, and other funeral-related merchandise. Independent retailers do not need to be compelled to disclose prices. Like any other retailers, if they fail to disclose their prices, they will do no business.”
 
This decision, Craigmiles v. Giles, can be contrasted to a decision by an Oklahoma state court two years ago, State v. Stone Casket Co., that upheld a similar law restricting casket sales to licensed funeral directors. The Stone Casket opinion was relatively brief, offered little analysis of the issues, and merely concluded that “a casket is part of the funeral service business and cannot be separated as an independent item.” By comparison, the Craigmiles opinion is lengthy and seems written by the federal district court to withstand scrutiny on appeal. At this point, it is not known whether the decision will be appealed. ICFA members who would like copies of the Craigmiles decision should call ICFA headquarters at 1-800-645-7700. 
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