On Monday September 29, the U.S. Supreme Court returns from its
summer break to meet in private conference, where the justices will
consider dozens of new cases up for possible review in the October
2014 term. One case in particular stands out as eminently worthy of
the Supreme Court’s attention.
That case is
Heffner v. Murphy. At issue is a February 2014
ruling by the U.S. Court of Appeals for the 3rd Circuit which
upheld the constitutionality of Pennsylvania’s 1952 Funeral
Director Law. According to the 3rd Circuit, that state law must
remain on the books, even though several of its out-of-date
provisions no longer make any sense in light of modern technology
and various developments in the funeral industry. For example, the
law forbids funeral homes from offering food, though they are
allowed to offer beverages. What’s the difference? Nobody can say.
“From a public health perspective,” one medical expert testified
earlier in the case, “I find no medical or scientific merit in the
argument that serving food at a funeral home would constitute a
potential public health risk.” The state of Pennsylvania did not
rebut that testimony.
Yet according to the 3rd Circuit, such modern facts are
basically irrelevant to the issue at hand. What matters, the court
said, is that state lawmakers thought they had a rational reason
for enacting the legislation back in 1952. “It may well be that the
legislature’s concern had more force in an earlier time when
refrigeration and sanitation were not as developed as they are
today [and] outdoor temperatures could more readily affect
sanitation as well as food storage and preservation,” the court
observed. “However, there is a fundamental difference between
legislative enactments that may be archaic and those that are
irrational for purposes of our substantive due process
inquiry.”
Is there really such a difference? Not according to the Supreme
Court. In its landmark 1938 decision in
United States v. Carolene Products Co., the Court said:
“[T]he constitutionality of a statute predicated upon the existence
of a particular state of facts may be challenged by showing to the
court that those facts have ceased to exist.”
In other words, Heffner v. Murphy asks the Supreme
Court to clarify whether it meant what it said in Carolene
Products, or whether the 3rd Circuit was correct to say that
“archaic” government restrictions can survive judicial review even
when those restrictions are premised on “facts [that] have ceased
to exist.” Because Carolene Products is one of the most
frequently cited opinions in constitutional law, it’s essential for
the Supreme Court to take a firm stand on its meaning here.
Leading the charge against the irrational Pennsylvania
regulations is a licensed funeral director named Ernest Heffner,
represented by the lawyers at the Institute for Justice, a national
public interest law firm. “Judicial review requires judicial
engagement with the facts of every case,” Heffner told the Supreme
Court in his initial petition seeking review. “The courts cannot
serve as Madison’s ‘bulwark of liberty’ if they are instructed to
ignore the actual irrationality of enforcing a law today in
deference to facts that disappeared long ago.”
Will the Supreme Court agree with him?
It should—if it cares about jurisprudential consistency. For
instance, when the Court struck down laws in Michigan and New York
in 2005 that effectively prevented out-of-state wineries from
directly shipping to consumers (while allowing in-state wineries to
make such shipments), it invalidated the protectionist schemes in
part because of the states’ antiquated claim that “they cannot
police direct shipments by out-of-state wineries.” To the contrary,
the Court observed in
Granholm v. Heald, “improvements in technology have
eased the burden of monitoring out-of-state wineries. Background
checks can be done electronically. Financial records and sales data
can be mailed, faxed, or submitted via e-mail.” The states’ lame,
outmoded justification did not pass constitutional muster.
Similarly, when the Supreme Court invalidated a portion of the
1965 Voting Rights Act in 2013’s
Shelby County v. Holder, it did so because that law
was premised on the existence of what the majority termed
“decades-old data and eradicated practices.” “Voting discrimination
still exists; no one doubts that,” the Court observed. “The
question is whether the Act’s extraordinary measures, including its
disparate treatment of the States, continue to satisfy
constitutional requirements. As we put it a short time ago, ‘the
Act imposes current burdens and must be justified by current
needs.'”
Pennsylvania’s Funeral Director Law also imposes current
burdens. It must therefore also be justified by current needs.
While it’s conceivable that the law’s contested provisions might
have made a certain amount of sense back in 1952, there’s no reason
to think those same restrictions serve any sort of legitimate
public health or safety purpose today—a point that even the 3rd
Circuit reluctantly conceded in regards to the nonsensical ban on
serving food in funeral homes (“the Pennsylvania General Assembly
may want to revisit the need for some of these restrictions”).
“Restriction of liberty today must be justified by some
legitimate public purpose today,” Ernest Heffner told the
Court in his briefing.
He’s exactly right. The Supreme Court should take his case and
reverse the 3rd Circuit.
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