IJ Win Puts Two More Nails in the Coffin of California’s Funeral Monopoly
IJ just put up two big wins for free speech and economic liberty—victories for both our clients and the U.S. Constitution. The case involves a group of kindly ladies from Northern California and their nonprofit, Full Circle of Living and Dying. Full Circle helps the dying and their loved ones through their final days. It also helps families plan home funerals without a licensed funeral director, just as people the world over have traditionally done for centuries.
That, as you’ve likely already guessed, was a major no-no according to the state funeral board. Even though home funerals are legal in all 50 states and Full Circle’s services were limited to providing moral support, advice, and occasional assistance in conducting home funerals, the board argued Full Circle was an unlicensed “funeral establishment” and in late 2019 ordered the women who operate Full Circle to shut down.
IJ filed suit to challenge that order, and earlier this year we scored two major first-round victories. The court ruled both that the First Amendment forbids California from silencing Full Circle’s guides and that California could not require Full Circle, a nonprofit with an annual budget of $20,000, to build a traditional full-service funeral home to help people who have no interest in traditional funerals. And though Full Circle’s case isn’t over yet—the court will hold a trial later this year on whether California can require Full Circle’s guides to obtain funeral director licenses—the importance of these rulings cannot be overstated.
First, by affirming Full Circle’s right to provide advice to grieving families, the court further vindicated IJ’s work defending “occupational speech” from government licensure. Though many courts have treated speech subject to occupational licensing as unprotected “professional conduct” rather than as protected speech, the court’s opinion—adopting arguments IJ pioneered—correctly broke with this censorious approach. That ruling sets up a potential showdown at the 9th U.S. Circuit Court of Appeals, which sets constitutional precedent for fully 20 percent of Americans.
Second, by striking down the requirement that Full Circle build a funeral home, the court also recognized that the Constitution provides meaningful protection for economic liberty. That is a rare thing because the U.S. Supreme Court has told judges to uphold economic regulations, no matter how onerous, if there is any conceivable “rational” justification for them. Proving a law is so completely irrational as to be unconstitutional can be very difficult, yet IJ has done it repeatedly—with every one of those victories providing future courts with additional proof and precedent that plaintiffs can and do win economic liberty cases.
The mountain climber in me likens winning cases such as Full Circle’s to a winter ascent of Mount Everest. You go into it knowing that it will be grueling and that the odds are stacked heavily against you. But when victory comes, the view is spectacular and leaves an indelible impression on the IJ team, our clients, and the law.
Jeff Rowes is an IJ senior attorney.
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