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Rabbi Prevails-Pennsyvlania Can’t Stop Private Religious Funerals

Josh Slocum, Executive Director 

What would you say if a state agency said you were required to hire a licensed supervisor for your son’s Bar Mitzvah? Or engage a “Certified Celebration Director”* to oversee the events at your daughter’s Quinceañera? You’re probably laughing, but that’s exactly what the state of Pennsylvania tried to do with funerals. But outspoken Pittsburgh Rabbi Daniel Wasserman put the kibosh on this unwarranted intrusion by settling a case against the Commonwealth on December 17, 2012. The State Board of Funeral Directors and the Department of State agreed in a memorandum that laws requiring funeral director licensure do not apply to individuals or religious communities that carry out funerals privately without profit or payment.

We’ve written about Pennsylvania’s officious and intimidating meddling in private funerals before. Unable to understand the limits of their statutory authority, the Board and lawyers from the Department of State threatened a woman with prosecution and a $10,000 fine for caring for her own mother’s body at home and arranging her burial without hiring a funeral director. Allowing themselves to be used by undertakers with base motives, these state entities launched investigations of this “unlicensed practice” after funeral directors complained. It would be a joke if the consequences weren’t so serious—one complaint stated Rabbi Wasserman served as the rabbi at a burial where “no licensed funeral director was present.” Pass the smelling salts.

Rabbi Wasserman’s case took aim at Pennsylvania for violating freedom of religious practice under the federal and state constitutions. Orthodox (and ancient) Jewish tradition calls for the congregation, not commercial undertakers, to care for the body and perform ritual observances. Embalming is considered a desecration. After receiving letters threatening prosecution, Wasserman’s Chevra Kadisha (Jewish burial society) ceased functioning for fear of jail and fines.

The settlement decrees that individuals, congregations, and committees of religious organizations who care for and bury the dead without profit are not subject to the state’s funeral director licensing laws. Carrying out burials does not constitute unlicensed practice of funeral service and cannot be prosecuted. The state is to inform all funeral directors and state staff of this fact within 90 days.

Rabbi Wasserman’s persistence makes him a hero for everyone in Pennsylvania. Quakers, the Amish, Islamic congregations, and many Christian denominations also care for their own dead and had much to fear from an overzealous regulatory apparatus.

But this is not just an issue of religious freedom. While the situation in Pennsylvania did indeed constitute a breach of those freedoms, non-religious people have the same rights.  In short: you do not have to profess a religious belief to have the right to perform private, family-directed funerals. Religious freedom, includes freedom from religion, not just the freedom to engage in it. Broadly speaking, the issue is about the rights and autonomy of citizens to pursue their interests according to their own wishes and beliefs—whether religious or not—without interference from the state.

FCA’s own David Morrison, a Quaker and an elder-law attorney in Lancaster who serves on the national board, threw his support behind the Wasserman case and helped bring it to a successful conclusion.

Maybe you’re surprised to know it’s legal to carry out a funeral for your own family member without hiring a funeral director. But why? I often say that even those of us who are educated, competent adults lose our rational faculties when the talk turns to death and dead bodies. So sheltered are we from the realities of death that we fear funerals and death and we succumb to myths and misinformation that we’d never believe if the subject were anything else. Surely you must hire a funeral director, we think, it’s dead bodies we’re talking about.

Well, no. It helps to think by analogy. If I open a restaurant I have to apply to the Board of Health for a permit. The Board has the power to inspect my facilities for sanitary conditions, it can require me to store raw meat away from fresh vegetables, and it can put me out of business if I make food that sickens my customers. But the Board of Health has no jurisdiction over my own kitchen. I can cook food for as many family members and guests as I like and my refrigerator can be in a state of disarray.

What’s the difference? Money. Restaurants sell food to the public and the state has a responsibility to ensure they do so safely. But the state has no interest in barring me from cooking a meal for my own family, and it cannot tell me I’m required to hire a licensed caterer to feed my family and dinner guests.

It’s just the same with funerals. Funeral homes are regulated to protect customers from unethical practices. But that does not mean that we are  required to be customers and hire a commercial firm if we choose to carry out funerals ourselves. Simply because we’re so used to doing so does not mean that we don’t have the right to bury our own dead. Requiring the use of a funeral home is on a par with requiring dads to hire licensed babysitters to watch little Johnny on weekends, or to require daughters to hire registered nurses to care for  her dying mom at home even if we prefer to wash and bathe her ourselves.

Most of you reading this will have changed a baby’s diaper, given a sponge bath to an invalid relative, and filled out an application for a motor vehicle registration. If so, you’ve done just about everything you can expect to have to do when a death occurs. In most cases the care of the body and the paperwork are no more complicated than anything you consider normal and routine.

Even if a home funeral is not your choice, it helps to know your rights. We should all support protecting those rights for other people who make choices that are right for them.

*There is no such thing. . . yet. Given the proliferation of trumped up titles and professional puffery readers should stay alert

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