A win for economic liberty in Pennsylvania

May 15, 2012 | By TIMOTHY SANDEFUR

A federal judge in Pennsylvania today issued a decision striking down several provisions of that state’s anti-competitive laws regarding funeral homes—specifically, ones that limit the ownership of funeral homes to licensed funeral directors, regardless of whether the owner ever actually directs funerals. Judge John Jones—who made headlines some years ago for striking down the Dover school board’s effort to teach creationism in classrooms—ruled that the law lacked any reasonable connection to protecting public health and safety, and that it instead only protected the interests of established funeral directors.

“The limitation of ownership to licensees appears particularly arbitrary given the exception allowing untrained and unlicensed widows, widowers, and heirs of licensed funeral directors to continue operating a funeral home for up to three years,” wrote Jones, “or in the case of widows and widowers, for an unlimited duration provided they remain unmarried, while at the same time otherwise limiting ownership to licensed funeral directors. The reality that the [law] permits such individuals to operate a funeral establishment by employing a full-time licensed funeral director to act as a supervisor, but prohibits other individuals or entities from doing the same, demonstrates that the restriction on ownership to licensees is not rationally related to the legitimate state interest of ensuring competency and accountability in the funeral industry.”

The court also found that the limitations on ownership violated the interstate commerce clause, infringed on freedom of speech, and violated the Constitution in other ways. The court even ruled that the state’s prohibition on serving food in funeral homes violated the Constitution—because even the state admitted that there was no reasonable justification for this restriction.

The decision is a powerful, well-thought out, long decision that shows Judge Jones thought very carefully about this law and the constitutional issues involved. Congratulations to attorneys Barbara Zemlock, James Kutz, and Gary James on an important victory for freedom of economic choice!