-Josh Slocum, Executive Director
Pennsylvania’s state funeral regulatory board is out of control and needs to be reined in. Fresh from a defeat in federal court in which a judge tossed out 11 provisions of law for being anti-competitive, the board now faces a suit from a rabbi it has been harassing with threats of legal prosecution for performing traditional, undertaker-free Jewish funerals. Daniel E. Wasserman is suing the board on constitutional grounds; the regulatory board thinks it has the authority to bar Wasserman and his congregation from performing traditional Jewish funerals themselves. No, says the state—that would be practicing funeral service without a license. Never mind that Wasserman’s chevra kadisha (Jewish burial society) charges no fees to grieving families for this traditional religious service.
This use of the Commonwealth’s police powers under the pretext of “protecting health and safety” to restrain organized clergy for the benefit of professional funeral director licensees who seek only to profit is as shocking as it is unconstitutional. Even more shocking is the selective enforcement of [Pennsylvania commercial funeral law] against an Orthododox Jewish clergyman while the State Board knowingly allows the same or similar practices by persons of other faiths in instances where no profit can be expected by its licensees.—Wasserman v Commonwealth of Pennsylvania in the US District Court, Middle District, Pennsylvania.
Let’s be clear about several things:
- The state funeral board has no legal authority over anyone but those who sell funeral services. Their threats against Rabbi Wasserman (prosecution for unlicensed practice including a potential $10,000 fine) are without legal merit and beyond the scope of their authority.
- While Rabbi Wasserman’s constitutional claim that the state is interfering with religious practices is sound and warranted, Pennsylvanians do not even have to claim religious motivations if they choose to conduct their own funerals privately without hiring an undertaker. This is a right that all citizens enjoy.
- Pennsylvania’s state funeral board is notoriously corrupt and should be disbanded and re-formed. As in most states the industry itself has a majority of seats (PA has five funeral directors, two “consumer” members, one state commissioner and one designee from the Attorney General). And as in most states, the industry has co-opted the regulatory apparatus to shut out competition and protect the industry from consumers.
The Board’s Authority
Like most regulatory boards, the Pennsylvania State Board of Funeral Directors is empowered by law to regulate the commercial sale of funeral services. Contrary to the board’s belief its authority does not extend to the private, non-commercial performance of funerals. The statute creating the board reads:
It shall be empowered to formulate necessary rules and regulations not inconsistent with this act for the proper conduct of the business or profession of funeral directing and as may be deemed necessary or proper to safeguard the interests of the public and the standards of the profession.—Section 16 of the Pennsylvania Funeral Director Law (FDL)
Reading the entire FDL makes it quite clear that the state’s intent is to regulate the commercial business of funeral directing to protect the public from consumer abuse. No reasonable person could interpret the FDL to give the board authority to compel private families and religious congregations to turn over their dead to a business and pay for the privilege.
Because so many of us have forgotten that family-led funerals were the norm until the 20th century we often believe, erroneously, that they are illegal. Not so. It helps to consider some analogies. If you want to open a restaurant and sell burgers to the public the state health department has the legal right to inspect your premises and hold you to standards of sanitation and preparation. The goal is to protect diners from contaminated food. But the health department does not have the legal right to inspect your kitchen at home, to tell you how to cook, or to bar you from making your family supper. The health department cannot compel you to hire a caterer if you’d prefer to cook your own food.
Similarly the state may set standards for commercial day-care centers and require you to get a license before taking in children. But the state cannot force you to send your children to daycare if you would prefer to wash, feed, and dress them at home.
These examples are absurd, of course, but no more absurd than Pennsylvania’s claim that citizens must relinquish their dead to a for-profit mortuary. We care for our family members in life and in sickness, and if we choose to continue that care after death the state has no legal authority to prevent that. Note that the minimal administrative requirements at death—the completion of a death certificate with a doctor’s signature, filing it with the health department and securing a permit before burial or cremation—are within the ability of any competent adult. If you can figure out how to renew your driver’s license at the DMV you can do this same paperwork in a few hours.
Religious Freedom and Funerals
Religious congregations have traditionally seen the care of the dead as a moral responsibility of the congregation. Unlike today’s hands-off approach taken by most churches, congregations and clergy used to be very much involved in the care and handling of the body and its burial.
Orthodox Jews continue this tradition through the chevra kadisha. They perform the ritual washing and wrapping of the body, the associated ceremonies, and the eventual burial. Muslim funeral practices are quite similar. Quakers and Amish people in many states (notably in Pennsylvania) continue to bury their own dead
But home funerals are a right enjoyed by all. While some states have thoughtful provisions that explicitly exempt religious groups from funeral licensing laws, it is important to remember that you do not have to assert a religious claim to have the right to conduct a family funeral.
The Corrupt State Board
The first chapter of my book Final Rights: Reclaiming the American Way of Death (co-written with Lisa Carlson) deals with the nationwide problem of a broken regulatory system. Circling the Hearses points out that with a handful of exceptions state regulatory boards are stacked with funeral directors. As with any industry that regulates itself consumer abuses are routinely ignored and the board is used by industry insiders as a weapon against competitors.
Pennsylvania’s board is among the most egregious. It’s no surprise Rabbi Wasserman has filed suit considering the state’s ongoing harassment of private citizens who choose to keep the funeral a family affair. In 2011 the board sent a letter to Phyllis Ingold implicitly threatening her with prosecution for unlicensed practice of funeral service. Why? Because she and her family privately buried their mother after a home funeral. Ingold followed all the laws and filed all the paperwork. The state’s letter included a laundry list of absurd “charges” against Ingold, including that she had “organized a public viewing” and had “authorized the grave opening.”
It is because of this kind of abuse that the National Home Funeral Alliance and Funeral Consumers Alliance has published Restoring Families’ Right to Choose. This position paper lays out the need to protect the rights of families to perform funerals privately if they choose and it notes the legal impediments they face. In advocating for legal reform the paper demolishes the flimsy justifications the funeral industry uses when it tries to create a de facto legal right to the bodies and wallets of every citizen. Lawmakers and policy experts will find useful citations when considering regulatory reform.
And to members of the Pennsylvania State Funeral Board and the attorneys working for them: Your overreaching grasp for control of all things funereal is not only outside your legal remit it is beyond the bounds of decency. Your actions are an embarrassment to the Commonwealth and an abdication of your duty to protect the public. By using the full weight of the state apparatus to intimidate citizens while depriving them of their constitutional rights you bring shame and dishonor to your office. It is Funeral Consumers Alliance’s fervent hope that Pennsylvania lawmakers will gut the FDL, dismantle your board, and remake it into a proper consumer protection agency.