As the 10th Circuit noted, the Oklahoma State Board of Embalmers and Funeral Directors "concedes that its licensure requirements do not perfectly match its asserted consumer-protection goal." Rather than accepting the idea that fewer choices and higher prices are good for consumers, the court ruled that even if the whole point of the regulations was to protect funeral homes from competition, that would be OK.
To survive a challenge under the 14th Amendment's Due Process and Equal Protection clauses, a regulation has to be "rationally related to a legitimate government purpose." But if, as the 10th Circuit ruled, "intrastate economic protectionism constitutes a legitimate state interest," there's little doubt that Oklahoma's restrictions on casket sales satisfy this test.
"While baseball may be the national pastime of the citizenry," the court wrote, "dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." Such protectionism may be unfair and inefficient, the court said, but that doesn't make it unconstitutional.
The upshot of this argument is that almost anything goes when it comes to rigging the game in favor of special interests. "The 10th Circuit gave a judicial green light to unlimited backroom deals and cronyism by legislators," says Chip Mellor, president of the Institute for Justice, which represents Powers and Bridges.
If it hears Powers and Bridges' appeal, the Supreme Court will have an opportunity to explicitly reject the idea that protecting certain businesses from competition represents a "legitimate state interest." More important, it will have an opportunity to revisit the part of the 14th Amendment that says "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Those "privileges or immunities" originally were understood to include the ability to make an honest living free of official harassment, which is all that Powers and Bridges want to do. But in an 1873 decision upholding a slaughterhouse monopoly granted by Louisiana, the Supreme Court essentially read the Privileges or Immunities Clause out of the Constitution. Now it has a chance to correct that error and restore to Americans some of their lost liberty.