Essay

United States Court of Appeals, Sixth Circuit.

Nathaniel CRAIGMILES v.

Arthur GILES

*222 OPINION BOGGS, Circuit Judge.

Nathaniel Craigmiles and several other plaintiffs challenge a provision of the Tennessee Fu- neral Directors and Embalmers Act (FDEA) that forbids anyone from selling caskets without being licensed by the state as a “funeral director.” Licensing requires an applicant to undergo two years of education and training . . . .

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I The FDEA requires all those engaged in “funeral directing” to be licensed by the Board of

Funeral Directors and Embalmers, established by the FDEA. See Tenn.Code Ann. § 62-5-201. When the licensing legislation was originally enacted in 1951, the definition of “funeral directing” did not include the sale of caskets and other funeral merchandise, but was limited to the arranging of funeral ceremonies, burial, cremation, and embalming. In 1972, the Tennessee General As- sembly amended the definition of “funeral directing” to include the “making of arrangements to provide for funeral services and/or the selling of funeral merchandise, and/or the making of fi- nancial arrangements for the rendering of the services, and/or the sale of such merchandise.” Tenn.Code Ann. § 62-5-101(a)(3)(A)(ii) (emphasis added).

The requirements for licensure as a funeral director are more than administrative. Applicants may choose one of two paths of study. They may complete either one year of course work at an accredited mortuary school and then a one-year apprenticeship with a licensed funeral director or a two-year apprenticeship. There is no specified curriculum for the apprenticeship, although the funeral director under whom the candidate is training must file a quarterly report with the Board regarding the apprentice's activity. After the completion of either of the two-year tracks, the can- didate must take and pass the Tennessee Funeral Arts Examination.

For the candidate on the mortuary school track, there is only one accredited school in Ten-

nessee, Gupton College. To complete the required year at Gupton, the candidate must take eight credit hours in embalming, three in “restorative art,” and twenty-one in “funeral service.” Alt- hough there was testimony at trial that portions of sixteen of the twenty-one hours in “funeral service” classes pertain to caskets and urns, students testified that casket and urn issues constituted no more than five percent of the Gupton curriculum. Only 37 of the 250 questions on the Ten- nessee Funeral Arts Exam concern funeral merchandising, including various casket options, FTC regulations regarding the sale of funeral merchandise, and merchandise display.

Craigmiles and his fellow plaintiffs operate two independent casket stores: “Wil- son-Craigmiles Casket Supply” in *223 Chattanooga and “The Casket Store” in Knoxville. The stores offer caskets, urns, gravemarkers, monuments, flower holders, and other merchandise items. The stores engage in no embalming or arranging of funeral services, cremations, or burials. Nei- ther of the stores has sought to sell caskets “pre-need,” and each, at least so far, sells caskets only after the death of the intended occupant.

The Board issued a cease and desist order to both businesses, which barred them from con- tinuing to sell caskets and other funeral merchandise. In the orders, the Board declared that the businesses were engaged in “funeral directing” and employed no licensed “funeral directors,” thus violating the FDEA. Both businesses ceased operations on issuance of the orders.

Craigmiles and the other proprietors affected by the cease and desist orders filed this action in the United States District Court for the Eastern District of Tennessee. Bringing the action under 42 U.S.C. § 1983, Craigmiles alleged that the FDEA, insofar as it restricted the sale of caskets, urns, and other funeral merchandise to licensed funeral directors, violates the Due Process, Equal Pro- tection, and Privileges and Immunities clauses of the Fourteenth Amendment. Craigmiles re- quested that the court enjoin the enforcement of the FDEA against businesses engaging only in the retailing of funeral merchandise.

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