IJ Victory Puts A Nail In State-Imposed Casket Monopoly

September 2000

IJ Victory Puts A Nail In State-Imposed Casket Monopoly

By Chip Mellor

In a resounding victory for economic liberty that will bolster entrepreneurs nationwide, a federal court ruled that four IJ clients may once again sell discounted caskets to Tennessee consumers without having to secure a state-issued funeral director’s license. Until the Institute for Justice’s legal victory on August 22, such sales were criminal in Tennessee and are still outlawed in at least eleven other states.

Following a two-day trial, Chief Judge R. Allan Edgar of the U.S. District Court for the Eastern District of Tennessee recognized in Craigmiles v. Giles that the “plaintiffs indisputably have a liberty interest in the right to pursue their chosen occupation.”

Entrepreneurs everywhere can breathe more freely thanks to this decision, which establishes unequivocally that the state cannot arbitrarily stifle honest enterprise. The victory is exactly the kind of precedent we created the Institute for Justice to set. We will now use it in all succeeding economic liberty cases to establish a presumption in favor of liberty when government seeks to stifle the right to earn an honest living.

In potentially historic terms, the judge recognized that it may be time to reinvigorate the Privileges or Immunities Clause of the Fourteenth Amendment, the constitutional provision most directly intended to protect economic liberty. As Judge Edgar noted, the Privileges or Immunities Clause was reduced to a “practical nullity” by a sharply-divided U.S. Supreme Court in the 1873 Slaughter-House Cases. In ringing language, Judge Edgar spelled out why our case could well be the vehicle to restore this vital provision to its originally intended status. Exploring the history surrounding the Clause and Slaughter-House, Judge Edgar concluded that “it may be time, as Justice Thomas suggests . . . to take another look at the Privileges and [sic] Immunities Clause and its place within the Fourteenth Amendment.” This was the first time that a trial court had truly engaged the Privileges or Immunities Clause in an IJ case or any other case for that matter. As readers of this newsletter know, restoring the Privileges or Immunities Clause to its rightful place in constitutional jurisprudence is central to IJ’s mission, so this part of the opinion is especially exciting for us.

Last year, Tennessee’s Board of Funeral Directors and Embalmers (which consists of seven members, six of whom are licensed funeral directors) forced IJ clients Reverend Nathaniel Craigmiles and Tommy Wilson of Craigmiles Wilson Casket Supply in Chattanooga and Angela Brent and Jerry Harwood of The Casket Store in Knoxville to close their businesses and threatened them with fines and jail time for selling caskets without a funeral director’s license. But Reverend Craigmiles and the others teamed up with IJ to file a federal lawsuit challenging this requirement.

In his 16-page ruling, which came after taking expert testimony and evidence, Judge Edgar held that forcing individuals who sell caskets from retail locations to obtain a funeral director’s license—which requires two years of training and the passage of a licensing exam—violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (For a full copy of the judge’s decision, visit our website at www.ij.org.) Judge Edgar explained that any regulation of the right to pursue a chosen occupation not only must have a legitimate government purpose, but also that “there must be a rational relationship between that purpose and the means chosen by the State to achieve it.” He concluded that while Tennessee may protect public health and consumers, “the means chosen in this instance to accomplish these purposes have no rational basis.”

“Requiring us to go through this training when we don’t handle the deceased or perform burials makes as much sense as requiring the person who sells the tombstone to go through this training,” explained Tommy Wilson.

We now await the State’s decision on whether to appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

Similar arbitrary licensing laws still affect hundreds of other occupations across the country, which is why the Institute for Justice’s fight for economic liberty must continue. But with the support of our donors, the hard work of our legal team, including IJ Staff Attorney Miranda Perry, Paralegal Gretchen Embrey, experts Charles Crawford of Mortuary Associates, Inc. in Nashville and Lisa Carlson of the Funeral Consumers Alliance in Burlington, Vermont, and the heroic stand of our clients, we have now established a foundation for even greater success in rolling back the size and scope of government. For those of us who love freedom and fight for it every day, this is time to celebrate a victory.

Chip Mellor is the Institute’s president and general counsel and served as lead attorney in this case.