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Pennsylvania funeral directors appeal to US Supreme Court

A press release from the Institute for Justice. The case is brought by funeral directors in Pennsylvania who challenged the state’s outdated laws restricting funeral home ownership, barring the serving of food in funeral homes, and other rules that have kept out competition while protecting “legacy” funeral homes. 

CONTACT: Shira Rawlinson, (703) 682-9320 ext. 229
Does the U.S. Constitution Require Courts to Enforce Obsolete Laws that Lack Any Justification Today?
Institute for Justice asks U.S. Supreme Court to hear ‘changed circumstances’ case
Arlington, Va.—Today, the Institute for Justice and a group of Pennsylvania funeral directors asked the U.S. Supreme Court to hear Heffner v. Murphy, a case with implications for every American. The question presented to the High Court is simple: When the government takes away your liberty today, does it need reasons that are valid today or is it enough that the law was valid when passed long ago, no matter how much the facts of the world may have changed?
In Heffner, a fed-up coalition of Pennsylvania funeral entrepreneurs sued the state to overturn obsolete laws dating to the early 1950s that prevent them from providing the best service and lowest prices to their customers. The federal trial court ruled that it was no longer constitutional for Pennsylvania to enforce these archaic laws due to indisputable advances in how the funeral industry now works. The 3rd U.S. Circuit Court of Appeals reversed, holding that the absence of a contemporary justification for a law was not “a constitutional flaw.” Instead, the appellate court ruled that all that matters is whether the law was “rational” when passed in 1952.
Heffner v. Murphy is important to every American because the constitutional rule at issue—called “rational-basis review”—determines the constitutionality of the overwhelming majority of laws, from occupational licensing to criminal statutes to environmental law to zoning and just about everything in between. Rational-basis review requires the government to have, at minimum, a rational reason for depriving someone of liberty.

The petition to the Supreme Court concerns whether the government must have a reason that is rational today or whether it is enough that the law may have been rational in theory when passed long ago in a world that was a much different place. For example, in 1952, Pennsylvania prohibited funeral homes from serving food to funeral attendees, and the state enforces that prohibition today even though advances in refrigeration and cleanliness over the last 60-plus years have made it undeniably true that this restriction no longer serves any purpose (even assuming it ever did).
“This case is important to every American because the Constitution requires the government to be rational when it takes away liberty, and that rationality should be judged under the facts of the world as they are today, not based on the facts of a world that has long since disappeared,” said Institute for Justice Senior Attorney Jeff Rowes, who is lead counsel. “This is not an argument that the Constitution itself changes, just an argument that laws can become so obsolete as to be irrational under the Constitution.”
Lead plaintiff Ernest Heffner of York, Pa., said: “We challenged these laws because the government should not be able to make it a crime for funeral directors to serve their clients with value, relevance and accommodations requested by contemporary consumers.” He added: “These old laws don’t protect the public, who come to us on the worst day of their lives. They protect an outdated, inflexible funeral-business model that has earned a reputation for irrelevance and inflexibility. These laws stay on the books year after year enabling the old guard to foist their outdated business model on consumers.”
Heffner v. Murphy is perfect for Supreme Court review because decisions of the High Court and the lower courts of appeals are in conflict over whether the rationality of a law should be decided under the facts of the world now or under the facts of the world when the legislature passed the law. Notably, this conflict exists only in the context of rational-basis review. In other contexts, such as free speech or voting rights, the Supreme Court requires the government to justify its actions based on the facts of the world as it is today.
The primary purpose of Supreme Court review is to resolve these conflicts in the law. Renée Flaherty, an attorney with the Institute for Justice and co-author of the petition, said: “The Supreme Court needs to step in because confusion in the law about a basic constitutional principle is a threat to liberty across the country.”
William Mellor, IJ President and General Counsel, stated: “This case is fundamentally about judicial engagement versus judicial abdication. If courts declare that the government can restrict our rights today based on an obsolete justification from decades ago, then basic constitutional protections in areas such as economic liberty will be meaningless. That is why the Supreme Court must take this case to make clear that what matters in the sphere of economic liberty, just like what matters in other areas of the Constitution, is the legitimacy of what the government is doing to you now.”
Also on the brief were James Kutz and Jason Benion of Post & Schell in Harrisburg, Pa., which represented the Petitioners in the courts below.
Founded in 1991, the Institute for Justice is the nation’s law firm for liberty. IJ focuses on economic liberty, property rights, free speech, and educational choice. As part of its economic-liberty practice, the Institute has represented funeral entrepreneurs in various cases across the country in federal and state courts. Most recently, IJ vindicated the constitutional right of the Benedictine monks of Saint Joseph Abbey in Covington, La., to sell their handmade caskets to the public without becoming state-licensed funeral directors.


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