An excerpt from The Daily Signal (www.DailySignal.com)
Alabama residents looking to purchase environmentally friendly and cheaper caskets are now free to do so in the Yellowhammer State. Gov. Robert Bentley, a Republican, recently signed a bill lifting restrictions on who can sell funeral supplies and merchandise.
Under the new law, vendors can sell funeral items like caskets and shrouds without needing a funeral director’s license, and some say the action from both the state legislature and the governor pre-empted what would’ve been a victory challenging Alabama’s licensing laws in court.
“This is an example that if legislators don’t repeal laws like this, then they’re going to lose in court, and someone is going to bring it to everyone’s attention,” Renée Flaherty, a lawyer with the Institute for Justice, told The Daily Signal. “I think there aren’t many of these laws left, the casket restrictions. But the fact that they’ve been steadily falling is a wake-up call to the remaining casket sales restrictions and also to other occupational licensing restrictions schemes,” she continued.
Previously, only licensed funeral directors could sell funeral merchandise, which included items like urns, caskets, and burial shrouds. But last month, Shelia Champion, a cemetery owner, and the Institute for Justice, an Arlington, Va.,-based public interest law firm, filed a lawsuit against the state Board of Funeral Service arguing the laws placed unconstitutional restrictions on Champion’s economic liberty.
The Institute for Justice now plans to dismiss the lawsuit, Flaherty said. “The Constitution protects the right to earn an honest living, and the government can’t interfere with that right by creating cartels that benefit only industry insiders,” Flaherty said. “Now, if someone wants to open up a retail casket store, they can do that. If someone wants to make caskets or shrouds and give them away, they can do that. There are lots of possibilities for entrepreneurship and helping the community…”
Flaherty and the Institute for Justice were prepared to take Champion’s case to the Supreme Court, as there is currently a split among federal appeals courts over whether economic protectionism is a legitimate interest of the government. “This case would’ve brought the issue of economic protectionism to the Supreme Court, whether economic protectionism is a legitimate interest of government,” Flaherty said. “That was our hope to get this issue a little bit further, but this law is a complete victory for our client.”