In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in effect restrict sales of caskets to funeral home operators, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
This Note explores the constitutionality of state licensing schemes that limit casket sales to registered funeral directors. It begins by exploring the constitutional framework of economic substantive due process and equal protection jurisprudence. Next, this Note briefly addresses pluralist theory and interest group theory before turning to a brief overview of the FTC’s Funeral Rule. This Note then presents the current split between the Tenth and Sixth Circuits regarding whether economic protectionism of an in-state industry constitutes a legitimate state interest. Ultimately, this Note argues that while the U.S. Supreme Court has never explicitly articulated that intrastate economic protectionism is a legitimate state interest—instead requiring regulations to be tethered to a public purpose as constrained by the contours of the state’s traditional police powers—the Court has implicitly accepted such a goal as legitimate due to the deferential nature of the Court’s review of state economic regulations. This Note thus argues that the Supreme Court should make explicit its implicit endorsement that economic protectionism is a legitimate state interest precisely because economic protectionism may, in the state’s own legislative wisdom, plausibly serve the public interest.