It is often forgotten that the first religious liberty case at the Supreme Court challenged a ban on Catholic funerals. The case, Permoli v. Municipality No. 1 of New Orleans, reached the Court in 1845 when a priest violated a New Orleans ordinance limiting the Catholic practice of holding open-casket funerals to one church within the city. Invoking the Free Exercise Clause for the first time in the Court’s history, the priest argued that the ordinance unconstitutionally “legislate[d] for the priest as priest” by “punish[ing] the performance of a religious function by individuals acting in their religious capacity.” Ultimately, the Court dismissed the case without considering the priest’s arguments, holding that the First Amendment did not apply to the states.
Much has changed in the 179 years since Permoli. Today, occupational licensing in forty-eight states grants funeral directors the exclusive right to supervise funerals, sell caskets, and prepare the dead for burial. These statutes were passed at the turn of the nineteenth century when funeral directors lobbied states to eliminate competition from clergy and surgeon-embalmers in the market for funeral services. Since their passage, they have driven up funeral directors’ wages, induced families to spend more on funerals, and erected barriers to entry into the profession. Funerals, once the domain of religion and families, are now a $16 billion industry.
Scholars have explored the harmful effects of funeral director licensing on economic liberty and grieving families. But less attention has been paid to the unique way occupational licensing regulates religious worship. Unlike other forms of regulation, funeral director licensing specifies who can and who cannot perform funerals. This regulation of inherently religious activity raises questions about the boundaries between church and state. Can states force clergy to hire a third party to conduct funerals? Or, conversely, can the government force clergy to spend thousands of dollars and undergo years of training for the right to bury the dead, like their ancestors did, according to their religious tradition?
These questions are not merely theoretical. Throughout the twentieth century, funeral director licensing sparked conflict as it gradually stripped control of funerals away from clergy. For example, in 2009, Rabbi Daniel Wasserman performed a funeral for his deceased congregant. According to the tenets of the Orthodox Jewish faith, he ritually washed the body, wrapped it in a linen shroud, and buried it in a wooden coffin. For the offense of performing these activities “without a licensed funeral director present,” the State of Pennsylvania surveilled the rabbi’s synagogue, warned cemeteries not to allow him to conduct funerals on their grounds, and threatened criminal and civil prosecution. As a result, Rabbi Wasserman had to stop performing funerals while he waged a legal battle in the courts.
Recently, in Kennedy v. Bremerton School District, the Supreme Court ushered in a new era of religion clause jurisprudence. Overturning Lemon v. Kurtzman, a cornerstone of the Court’s approach to the Establishment Clause for the past half-century, Justice Gorsuch, writing for the majority, announced that the religion clauses should be interpreted with respect to “historical practices and understandings.” Applying this historical approach to the Establishment Clause, the Court ruled that a high school could not ban a football coach from praying publicly on the field after games. But the majority opinion went even further. The Court suggested that its current approach to the Free Exercise Clause, embodied in Employment Division v. Smith, may need to be revised. In light of Kennedy, the priest’s questions in Permoli may soon enjoy new relevance. This Comment aims to show that funeral director licensing creates problems for a historically grounded approach to free exercise doctrine. Furthermore, it argues that these constitutional problems can be avoided by extending exemptions to perform secular funerals that already exist in many states to religious organizations.
