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12 Chapter 1
apprenticeship of one year; the embalming of 25 bodies; passing both a subject
matter and an Oklahoma law exam; and having a fixed physical location where
bodies could be embalmed, ‘funeral service merchandise’ sold and bodies
viewed. 54 In short, it permitted only proper funeral homes run by trained
undertakers to sell caskets. Chief Circuit Judge Tacha declined to consider
whether these requirements were rationally related to the purpose advanced
by government in support of the regime, namely, to protect consumers
from unscrupulous casket sellers. 55 Instead, he found that the law really aimed
at the protection of Oklahoma’s established intrastate funeral home industry
from external competition and that, based on existing Supreme Court
precedent, 56 this was a legitimate government purpose. 57 Naturally, the law
achieved that purpose.
The problem here is that the Court required no additional public reason
for the exercise of the naked preference for the sale of caskets by funeral homes
over those who wish to sell caskets in ordinary shops, or on the web or from
their garage. It may be argued that the state has an interest in ensuring that
funeral homes are able to survive and that permitting unlimited competition in
an important part of their business might force them to close down. The trouble
with that argument is that reserving the casket business for funeral homes
necessarily disadvantages those who would compete. The very essence of the
rational basis test is that if the state wants to take sides in that competition it
must have some purpose other than its preference for one side over the other. 58
That is exactly what the Supreme Court did in Fitzgerald. 59 The challenge was
to a law that imposed a higher tax on slot machines at racetracks than it did on
the same machines on riverboats. Justice Breyer did not hold that the law was
driven by a mere desire to privilege riverboats over racetracks. He noted that the
riverboat industry was in financial trouble and needed support, and that ‘the
legislators may have wanted to encourage the economic development of river
communities or to promote riverboat history, say, by providing incentives for
54 Powers (n 53 above) 1212 - 1213.
55
Powers (n 53 above) 1218.
56 Powers (n 53 above) 1220 - 1221 citing Fitzgerald v Racing Association of Central Iowa 539 US
103 (2003); Dukes (n 16 above); Ferguson v Skrupa 372 US 726 (1963); and Williamson v Lee
Optical of Oklahoma 348 US 483 (1955).
57 Powers (n 53 above) 1218 - 1222.
58 There may well be reasons that justify the decision, of which the consumer protection
rationale avoided by the 10th Circuit is one. It may also be that undertakers would be
unable to survive without the revenue generated from casket sales and that because it is in
the public interest for undertakers to continue to operate they must keep a monopoly on
casket sales. It is important to note the distinction between this purpose and the simple
economic protectionism advanced by Judge Tacha. The purpose offered here rests on
the public benefit provided by undertakers; the Court’s rationale would hold even if
undertakers served no public purpose.
59 n 56 above.