Buried Online: State Laws That Limit E-Commerce in Caskets


Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and states must present real evidence that the discrimination is necessary to accomplish their policy objectives. The Court conducted a fact-intensive analysis which concluded the states had failed to make a persuasive case in favor of discrimination against out-of-state wine sellers. Examining the economic evidence, we find that state laws which impede electronic commerce in caskets would almost certainly fail a Granholm-style factual analysis. This implies that such laws could be held unconstitutional under the Commerce Clause, if a plaintiff brought a challenge similar to the one in Granholm. Our analysis also suggests that the laws are vulnerable to an Equal Protection or Due Process challenge if courts consider whether evidence actually supports the state’s defense.


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Date of this Version

March 2006