Death and grief are woven into the fabric of the human experience and are a favorite subject of artistic expression.
Consider two interrelated examples. In the painting The Funeral of Shelley (1889), Louis Édouard Fournier depicts the beachside cremation of British Romantic poet Percy Bysshe Shelley, who died in 1822 when his yacht capsized in a storm off the coast of Spezia, Italy. The poet lies on top of a funeral pyre that seems to be made of driftwood, his body unshrouded and unhooded to clearly depict his peaceful, could-be-sleeping face, even as the flames threaten to reach his corpse. Standing close at hand are three of the poet’s friends, novelist Edward John Trelawney, essayist Leigh Hunt, and fellow Romantic poet Lord Byron. Lingering in the background is Percy Shelley’s wife and fellow writer, Mary Wollstonecraft Shelley, who would go on to promote her husband’s poetry for the rest of her life. The events are framed by a stormy, sepia-tinted sky and a placid ocean that is just a few shades darker than the ground, which looks more like a fine powder of snow than sand.
Mary Shelley is the source of the second example. She wrote Frankenstein and the lesser-known dystopian novel The Last Man, published just a few years after Percy Shelley’s death. In The Last Man, Mary Shelley turns her deep understanding of grief to the page, imagining the downfall of human civilization after a long fight against an incurable pandemic. When the narrator survives a tempest that capsized his boat, he wakes on the shore to find his family gone, presumably drowned. Mary Shelley writes:
I ran to the water’s edge, calling on the beloved names. Ocean drank in, and absorbed my feeble voice, replying with pitiless roar. I climbed a near tree: the level sands bounded by a pine forest, and the sea clipped round by the horizon, was all that I could discern. In vain I extended my researches along the beach; the mast we had thrown overboard, with tangled cordage, and remnants of a sail, was the sole relic recovered of our wreck. Sometimes I stood still, and wrung my hands. I accused earth and sky — the universal machine and the Almighty power that misdirected it. Again, I threw myself on the sands, and then the sighing wind, mimicking a human cry, roused me to bitter, fallacious hope. Assuredly if any little bark or the smallest canoe had been near, I should have sought the savage plains of ocean, found the dear remains of my loved ones, and clinging round them, shared their grave.
Both Fournier’s painting and this heart-wrenching scene in The Last Man are preceded by death caused by a ship capsizing in a storm. Both depict subsequent mourning on a cloudy beach. But where Mary Shelley’s words convey the panic and desperation of losing a loved one with no body to bury, Fournier’s painting portrays a somber, morose scene of friends quietly observing the final disposition of someone who died tragically and unexpectedly. This difference suggests that while death can drive a man to madness, funerals provide an opportunity for reflection and acceptance.
Funerals are an essential step in the human experience of grief—hence the phrase, “funerals are for the living.” Science reflects this artistic truth to some degree. Sociological and psychological studies differ on whether participation in a funeral provides benefits for mental health or the process of grieving. Some clinicians believe that funerals help the bereaved process “the finality of loss” through “viewing the body of the deceased . . . [and realizing the deceased is] someone who is no longer alive and will only exist in memory.”
Whatever the empirical benefit to funerals may be, both federal and state policymakers have identified funerals as a key area for regulation. Every state other than Colorado licenses funeral directors, and the Federal Trade Commission regulates death care costs through the Funeral Rule. The practical result of many state statutes is that it is unlawful to have any involvement in death care without a state-issued license. As will be explored in this Comment, many states’ funeral director licensing statutes require that anyone who disposes of bodies, arranges funeral services, or sells funeral supplies must be licensed by the state to avoid liability for the unauthorized practice of funeral service. Therefore, in most states a person must receive a license from the state in order to lawfully provide most death care services. It is thus vitally important to examine funeral director licensure requirements and determine whether those requirements are constitutional and protect the public interest. Flawed funeral service licensure schemes affect all Americans as we will all experience both funerals of loved ones and—eventually—our own deaths. Death will have his day.
This Comment will provide an overview of two different approaches to funeral director licensing: one that requires all funeral directors to be licensed embalmers (“Single-Track Licensure”) and one that offers a license that does not require embalming education (“Dual-Track Licensure”); a timeline of federal appellate courts’ handling of funeral director licensing schemes through an examination of the “Casket Cartel” cases; and an argument for legislative reform to eliminate Single-Track Licensure based on such statutes’ failure to provide a rational basis for their limitations and failure to protect the public interest. Ultimately, this Comment presents a proposal for a better alternative—one which would both survive constitutional scrutiny and more effectively protect the public interest.
