The Undertaker's Cut: Challenging the Rational Basis for Casket Licensing

Abstract

Occupational licensing laws, once only applied to a narrow range of professional occupations, were extended to the funeral industry in the U.S. in the 19th and 20th centuries under the justification that they create professional standards that protect the deceased, their loved ones, and the general public. Funeral licensing now covers embalmers, funeral directors, and even casket sellers. Rather than protecting the public, licensing in the funeral industry in practice has often codified and protected the very abuses it was alleged to protect against by erecting barriers to entry and reducing competition. Casket licensure has been upheld in some U.S. courts under the rational basis test on the grounds that it promotes public health, protects consumers from fraud, and even that protectionism of an industry is a legitimate function of government. We challenge the rational basis for casket licensure by examining the Oklahoma’s 10th Circuit Court’s Powers v. Harris case, which used the rational basis test to uphold casket licensure restrictions on the online sale of caskets.