Jacob Sullum

Memorial Concepts Online sells an oak coffin for about $2,000, compared to an average of around $4,000 at funeral homes in Oklahoma, where the company is based. By separating the purchase of caskets from the purchase of funeral services, Memorial Concepts can offer substantial savings, not to mention a shopping environment free of hovering morticians. But in Oklahoma, which allows caskets to be sold only by licensed funeral directors, such competition is illegal.

 Kim Powers and Dennis Bridges, the founders of Memorial Concepts, are fighting to overturn Oklahoma's casket cartel, arguing that it violates their rights to due process, equal protection and economic liberty under the 14th Amendment. Last August, the U.S. Court of Appeals for the 10th Circuit rejected their arguments in a decision Powers and Bridges have asked the Supreme Court to review.

 Since the 10th Circuit's ruling conflicts with a 2002 decision by the U.S. Court of Appeals for the 6th Circuit that overturned similar restrictions on casket sales in Tennessee, there's a good chance the Supreme Court will intervene. If it does, the case could help re-establish the principle that people have a right to pursue a livelihood without arbitrary interference by the government. 

 The 10th Circuit did not pretend Oklahoma's rules for selling caskets make sense. "As a result of the substantial mis-fit between the education and training required for licensure and the education and training required to sell caskets in Oklahoma," it noted, "people who only wish to sell caskets . . . are required to spend years of their lives equipping themselves with knowledge and training which is not directly relevant to selling caskets."

 Qualifying as a funeral director in Oklahoma requires two years of college courses, graduation from a mortuary science program, a one-year apprenticeship that includes the embalming of at least 25 bodies, and two exams. After all that, the applicant is deemed qualified to sell boxes.

 The state also mandates that caskets be sold from a "funeral establishment" that includes a "preparation room" for embalming, a "selection room" for displaying casket options, and "adequate areas for public viewing of dead human remains." These requirements leave no room for an online business such as Memorial Concepts that sells caskets directly to the public and never handles bodies.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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