Should Obsolete Justifications for a 1952 Law Still Hold Legal Force Today? SCOTUS May Decide

On Monday September 29, the U.S. Supreme Court returns from its summer break to meet in private conference, where the justices will consider dozens of new cases up for possible review in the October 2014 term. One case in particular stands out as eminently worthy of the Supreme Court's attention.

That case is Heffner v. Murphy. At issue is a February 2014 ruling by the U.S. Court of Appeals for the 3rd Circuit which upheld the constitutionality of Pennsylvania's 1952 Funeral Director Law. According to the 3rd Circuit, that state law must remain on the books, even though several of its out-of-date provisions no longer make any sense in light of modern technology and various developments in the funeral industry. For example, the law forbids funeral homes from offering food, though they are allowed to offer beverages. What's the difference? Nobody can say. "From a public health perspective," one medical expert testified earlier in the case, "I find no medical or scientific merit in the argument that serving food at a funeral home would constitute a potential public health risk." The state of Pennsylvania did not rebut that testimony.

Yet according to the 3rd Circuit, such modern facts are basically irrelevant to the issue at hand. What matters, the court said, is that state lawmakers thought they had a rational reason for enacting the legislation back in 1952. "It may well be that the legislature's concern had more force in an earlier time when refrigeration and sanitation were not as developed as they are today [and] outdoor temperatures could more readily affect sanitation as well as food storage and preservation," the court observed. "However, there is a fundamental difference between legislative enactments that may be archaic and those that are irrational for purposes of our substantive due process inquiry."

Is there really such a difference? Not according to the Supreme Court. In its landmark 1938 decision in United States v. Carolene Products Co., the Court said: "[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist."

In other words, Heffner v. Murphy asks the Supreme Court to clarify whether it meant what it said in Carolene Products, or whether the 3rd Circuit was correct to say that "archaic" government restrictions can survive judicial review even when those restrictions are premised on "facts [that] have ceased to exist." Because Carolene Products is one of the most frequently cited opinions in constitutional law, it's essential for the Supreme Court to take a firm stand on its meaning here.

Leading the charge against the irrational Pennsylvania regulations is a licensed funeral director named Ernest Heffner, represented by the lawyers at the Institute for Justice, a national public interest law firm. "Judicial review requires judicial engagement with the facts of every case," Heffner told the Supreme Court in his initial petition seeking review. "The courts cannot serve as Madison's 'bulwark of liberty' if they are instructed to ignore the actual irrationality of enforcing a law today in deference to facts that disappeared long ago."

Will the Supreme Court agree with him?

It should—if it cares about jurisprudential consistency. For instance, when the Court struck down laws in Michigan and New York in 2005 that effectively prevented out-of-state wineries from directly shipping to consumers (while allowing in-state wineries to make such shipments), it invalidated the protectionist schemes in part because of the states' antiquated claim that "they cannot police direct shipments by out-of-state wineries." To the contrary, the Court observed in Granholm v. Heald, "improvements in technology have eased the burden of monitoring out-of-state wineries. Background checks can be done electronically. Financial records and sales data can be mailed, faxed, or submitted via e-mail." The states' lame, outmoded justification did not pass constitutional muster.

Similarly, when the Supreme Court invalidated a portion of the 1965 Voting Rights Act in 2013's Shelby County v. Holder, it did so because that law was premised on the existence of what the majority termed "decades-old data and eradicated practices." "Voting discrimination still exists; no one doubts that," the Court observed. "The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, 'the Act imposes current burdens and must be justified by current needs.'"

Pennsylvania's Funeral Director Law also imposes current burdens. It must therefore also be justified by current needs. While it's conceivable that the law's contested provisions might have made a certain amount of sense back in 1952, there's no reason to think those same restrictions serve any sort of legitimate public health or safety purpose today—a point that even the 3rd Circuit reluctantly conceded in regards to the nonsensical ban on serving food in funeral homes ("the Pennsylvania General Assembly may want to revisit the need for some of these restrictions").

"Restriction of liberty today must be justified by some legitimate public purpose today," Ernest Heffner told the Court in his briefing.

He's exactly right. The Supreme Court should take his case and reverse the 3rd Circuit.