Burying Economic and Religious Liberty in Pennsylvania

August 7th, 2012

Yesterday, a new suit was filed against the PA State Board of Funeral Directors in the Middle District of Pennsylvania by Rabbi Wasserman (whom I know from my time in Western Pennsylvania). Wasserman alleges that the Board of Funeral Directors is “violating Jews’ religious freedom by insisting that licensed funeral directors oversee all burials.” Rabbis cannot become funeral directors because of religious objections to embalming–a requirement by the state board.

The suit from Rabbi Daniel Wasserman of Shaare Torah Synagogue in Squirrel Hill accuses the state Board of Funeral Directors of intimidating rabbis, synagogues, grieving Jewish families and funeral homes that cooperate with rabbis, in a quest for profit. It was filed in U.S. District Court for the Middle District of Pennsylvania, based in Scranton.

Beyond what he does for his own synagogue, Rabbi Wasserman leads the group that organizes ritual mourning and burial for the wider Orthodox Jewish community in Pittsburgh.

The lawsuit is “to preserve and restore the historical right of clergy to conduct religious burial and funeral rites free from interference and harassment by the Commonwealth of Pennsylvania and professional, secular funeral directors who serve no health or safety interest,” according to the lawsuit, which cites state and federal constitutional guarantees of freedom of religion.

“Plaintiff — unlike some clergy from other religions — is now being threatened with civil action and criminal prosecution, including stiff fines and even imprisonment, for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit,” according to the lawsuit.

The rabbis comply with all state health rules for treatment of dead bodies, and the State Department of Health, not the State Board of Funeral Directors, is responsible for seeing that those rules are followed, according to the lawsuit.

This suit presents an interesting intersection between economic and religious liberty. On the one hand, this suit stands to vindicate the Rabbis closely-held beliefs of handling funerals in a way consistent with their beliefs–namely without embalming bodies. On the other hand, this suit represents the right of rabbis to pursue an honest vocation–and in many cases, provide a service to their parishioners that cannot be had otherwise.

A few months ago, a district judge in the Middle District of Pennsylvania found several regulations promulgated by the Pennsylvania State Board of Funeral Directors were unconstitutional, largely on economic liberty grounds.

A federal district judge sitting in Harrisburg has thrown out decades-old state regulations governing Pennsylvania funeral homes, saying they held down competition while substantially boosting costs.

Judge John E. Jones III, ruling in a four-year-old lawsuit that a York-area funeral director and others brought against individual members of the Pennsylvania State Board of Funeral Directors, essentially endorsed the plaintiffs’ allegations that regulators walled the funeral business off from competition by restricting the entry of out-of-state operators, imposed rules that made it difficult for funeral homes to operate efficiently, and even went so far as to improperly impose restrictions on funeral home names.

“The time for relying on antiquated and ever changing interpretations of [the law], which constitute nothing more than thinly veiled attempts to maintain the status quo for established funeral directors and their families, or to confuse those honestly seeking to comply with the law, has passed,” Jones said in his opinion.

The court found that a several regulations do not meet the rational basis test!

The legitimate state interests highlighted by Defendants are not rationally related to the FDL’s restriction on ownership for funeral directors to one-and-a branch. Similarly, Plaintiffs contend that Defendants’ alleged rational basis for restricting ownership of funeral homes to licensed funeral directors is not related to a legitimate state interest  (pp. 62-63)

The reasoning is interesting:

As in Count II, we find that the subject statute is not rationally related to the asserted state interest identified by Defendants. 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, 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 FDL 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 (pp. 67-68)

Funeral directors, historically, have represented a very closed industry that is very susceptible to rent-seeking, and anti-consumer treatment.

I will keep an eye on this suit.
Update: Some more details here:


U.S. District Judge John Jones III will hear the Wasserman case. In May, Jones called the state funeral directors law antiquated and struck down several regulations contained in the legislation, adopted in 1895 and last updated in 1951.

Harry Neel, CEO of Jefferson Memorial Funeral Home in Pleasant Hills, is part of the lawsuit that led to Jones’ May ruling and said his group spent $1.4 million in legal fees. He thinks Wasserman’s lawsuit, which is being handled pro bono by the Reed Smith law firm, could further expose the state board’s practices.

“The things they’ve done to the rabbi are against the Constitution of the United States,” Neel said. “Nothing he is doing endangers the people of Pennsylvania.”

Jewish law forbids embalming and cosmetology on bodies. The faith requires that burial happen as soon as possible, preferably within 24 hours.

Wasserman urges Jews to return to traditional burial practices as outlined by scripture, which involves bathing the body, wrapping it in a shroud and burying it in a modest coffin in a natural grave.

Jesus Christ was buried in accordance with Jewish customs, said Todd Van Beck, a funeral director and industry expert in Decatur, Ga.

“There’s nothing in the Jewish ritual that can be seen as working against the public welfare. They are beautiful rituals,” Van Beck said. “I admire the guts of the rabbi.”

The Rev. Lynn Acquafondata in 2010 founded Final Journey Home, a Western Pennsylvania home funeral service, but closed it after her first funeral when targeted by the same state officials as Wasserman.

“I decided I didn’t want to take on the funeral industry. It’s too expensive,” said Acquafondata, 47, a Unitarian Universalist minister from O’Hara who works as a hospice chaplain. “I really hope Rabbi Wasserman and others can make a dent in this and change the system.”

Imam AbduSemih Tadese of the Islamic Center of Pittsburgh also is on Wasserman’s side, as traditional Muslim funerals are similar to those of the Jewish faith.

Local Muslims use funeral homes “sometimes at unbearable costs,” the imam said.

A Muslim family two weeks ago paid $6,672 for funeral services, he said, adding that typical costs range from $4,500 to $5,500.

“We are not trying to stand in the way of funeral directors,” Tadese said. “They have their obligations. But we have our religious obligations.”

John Eirksen, executive director of the Pennsylvania Funeral Directors Association, said Wasserman has the right to perform religious services.

“It’s highly unusual, the tension between the rabbi and the funeral directors in that area of the state,” Eirksen said. “I think this extends to, for no better term, turf issues. It goes to this feeling of someone overstepping the bounds.”

Morrison, who manages two cemeteries, said the state board should extend Wasserman the same deference it has Quakers since Pennsylvania’s founding in 1682.