Mounting a Constitutional Challenge for Home Funerals

photo of judge gavel with official building in the backgroundThe NHFA, in conjunction with the FCA and the Institute for Justice in Washington, DC, has been exploring the possibility of challenging laws in restrictive states on the constitutional basis described below. Your help is needed to develop the test case necessary for this challenge. Here is a brief description of the issues and the actions needed to be able to proceed.

Laws requiring funeral directors to supervise home funerals are likely unconstitutional for two reasons:

  1. Given that all of the acts associated with home funerals—transporting the body, filling out forms, washing and caring for the body, etc.—are legal for families to do themselves, it is irrational to force a family to hire a funeral director to supervise them doing things that they are lawfully allowed to do. There is no other context in which people are forced to hire state-licensed professionals to watch them do things they are allowed to do themselves.
  2. The deceased and their families have a fundamental right—one that is deeply rooted not only in the history of this country, but in human culture in general—to care for their own dead without government interference. Just as the government lacks the power to force someone to undergo unwanted medical care in life, so too does the government lack the power to force someone to undergo unwanted care in death.

What we’re looking for:

  1. Any instances where laws requiring supervision of all funerals by a funeral director have actually been enforced against someone conducting a home funeral.
  2. Finding someone for whom the intrusion on their privacy is particularly egregious, perhaps because of their religious beliefs or a deeply held desire on the part of the deceased or the family not to have a stranger present.
  3. Find an instance where the law was enforced at a memorial service where there was no body present or where there were only cremated remains.

If you know of any instances where any of the above occurred, please contact Lee Webster nhfa.paper@gmail.com or 603-236-9495.

Map of the restrictive states