Regulation

Coffin Break

Funeral home protection

|

Memorial Concepts Online sells an oak coffin for about $2,000, roughly half the average price at funeral homes in Oklahoma, where the company is based. But in Oklahoma, where only licensed funeral directors are allowed to sell caskets, such competition is illegal.

Memorial Concepts founders Kim Powers and Dennis Bridges, represented by the Institute for Justice, are fighting to break up the state's casket cartel, arguing that it violates their rights to due process, equal protection, and economic liberty under the 14th Amendment. Last August the U.S. Court of Appeals for the 10th Circuit rejected their arguments in a decision Powers and Bridges have asked the Supreme Court to review.

Other federal courts, including the U.S. Court of Appeals for the 6th Circuit, have overturned similar regulations in other states, concluding that the rules lacked a "rational basis." That's hard to deny. Would-be casket sellers in Oklahoma, for example, have to complete two years of college courses, graduate from a mortuary science program, do a one-year apprenticeship during which they embalm at least 25 bodies, and pass two exams. The state also mandates that caskets be sold from a "funeral establishment" that includes a "preparation room" for embalming, a "selection room" for displaying casket options, and "adequate areas for public viewing of dead human remains"–amenities not typically offered by online retailers.

The 10th Circuit did not pretend Oklahoma's rules for selling caskets make sense from the standpoint of consumer protection, the state's official goal. Instead it ruled that even if the whole point of the regulations was to protect funeral homes from competition, that would be OK, since "intrastate economic protectionism constitutes a legitimate state interest."