Bottleneckers. William Mellor
course of his life changed again when it came time to help his wife bury her mother. Outraged by what he learned from this experience, he invested his life savings, took out a loan, and opened a business in May 1999 to help the people of his church by providing caskets at a much-less-expensive price than was offered at Chattanooga’s funeral homes.49 “I couldn’t stand any longer to see people having to mortgage their homes to pay for a decent burial,” he said.50 The caskets he sold in his store were priced anywhere from half to a quarter of what local funeral homes were charging.51 His caskets typically sold for $800. The exact-same caskets—bought from the exact-same manufacturers—sold for $2,000 in local funeral homes.
Although Pastor Craigmiles had secured city and county business licenses, no one had told him casket sellers required a funeral director’s license.52 For the pastor, getting one was simply not an option. Securing such a license would have required him to either enroll in a school approved by the state funeral board and participate in a one-year apprenticeship or to complete a two-year apprenticeship and assist with twenty-five funerals. At the time, the only Tennessee school approved by the funeral board was Gupton College, more than 130 miles away from his home, in Nashville. The most popular program took sixteen months to complete and cost between $10,000 and $12,000 in tuition and other expenses. Applicants also had to pass a funeral board exam.53
Even if he had had the time and resources to complete all those requirements, Pastor Craigmiles saw no point in doing it. Nothing about the selling of a casket—essentially an empty box—necessitated such requirements from his perspective. “You don’t have to buy a car from a mechanic,” he protested. “Why should you have to buy a casket from a funeral home?”54 Moreover, he rationalized that he would never be handling any human remains; he merely sought to sell a casket at a discount and then deliver it to a funeral home for the customer’s use.
On July 7, 1999, just months after Pastor Craigmiles opened for business, the state funeral board forced him to close.55 A cease-and-desist order was, in fact, delivered to him personally by the funeral board’s president. The pastor told the president to take his order back to where it came from and vowed to continue operating, but the next morning he found the store sealed by the sheriff “with the biggest padlock I’d ever seen.”56 Had he cut off the lock and opened the store, he would have been arrested.
His outrage over artificially inflated casket prices intensified following the funeral board’s actions, and on September 16, 1999, he and three other plaintiffs sued the board and the attorney general’s office, calling the licensing law an unconstitutional deprivation of their right to earn an honest living.57
Publicly, the funeral board—made up of six funeral directors and an attorney58—defended its actions by pointing to the law’s bureaucratic function: “Our responsibility is to enforce the law as passed by the legislature. We’re doing what we’re supposed to do,” said Arthur Giles, the board’s executive director.59 Reasons given by other funeral-industry representatives in support of the law ranged from the routine to the ridiculous. Citations of concern for public health and safety, such as safe disposal of bodies and consumer protection, were the most common,60 and the potential for the inaccuracy of death statistics unless only licensed funeral directors sold caskets was asserted by other industry insiders.61 Funeral-industry leaders stuck to such claims, even though residents could buy discount caskets over the Internet without the help of a representative or from other out-of-state third-party sellers, and funeral homes were required by law to accept them. Moreover, residents of Tennessee were legally permitted to use homemade caskets, and families or church groups could dispose of bodies without an undertaker or a funeral director.62
Months after filing the lawsuit, as the case was underway, the judge lifted the cease-and-desist order, and Pastor Craigmiles reopened his business. As attention to his case increased, he began receiving threatening calls and notes. Although he did not know their precise source, he suspected they were from funeral home competitors: “They said unless we shut down something was going to happen. This is big money, and we are just little people. I consider it a threat, and we’re taking this seriously and are thinking about repercussions.”63
As the legal proceedings wore on, the hooliganism continued. Caskets Pastor Craigmiles delivered to funeral homes in mint condition were intentionally scratched and damaged by funeral personnel to sully his reputation. His store windows were regularly smashed, and funeral-industry thugs threatened him with bodily harm.64 Unbowed, he continued to sell caskets to his clientele, who had grown to include not only poor members of the community in need of moderately priced caskets but also middle- and upper-income buyers who were becoming increasingly aware of the rapaciousness of the funeral-home bottleneckers. Even after getting his store burned to the ground—the perpetrators never identified—Pastor Craigmiles persevered, replacing his lost store with two others in strip malls in different parts of the city.
The funeral bottleneckers were not content, however, with merely defending their license. In 1999, two state legislators associated with the funeral industry sponsored a successful bill to give funeral directors even-greater advantages in selling funeral merchandise. With the support of the Tennessee Funeral Directors Association, Representative Tim Garrett and Senator John Ford, the latter eventually caught in and convicted as a result of an FBI bribery sting,65 pushed through a bill to require a twenty-four-hour waiting period before cremation.66 The law was criticized for the burdens imposed on the bereaved, forcing them to pay for embalming in places where refrigeration for the interim period was not an option and giving funeral directors time to convince families to select more expensive funeral options.67 It was also suggested that the law was put on the legislature’s consent calendar, where bills that are not expected to cause controversy are placed, without discussion.68 It turns out the law was controversial; it provoked a “public outcry,” according to legislators, when people realized what it said.69 The Knoxville News Sentinel called the law “an insult to consumers and a clear favor to special interests.”70 The following year, the law was repealed,71 but an even-bigger blow to the bottleneckers was still to come.
In August 2000, the US District Court for the Eastern District of Tennessee ruled in favor of Pastor Craigmiles. In his decision, Judge R. Allan Edgar held that
there is no reason to require someone who sells what is essentially a box (a casket) to undergo the time and expense of training and testing that has nothing to do with the State’s asserted goals of consumer protection and health and safety.72
On August 29, the board convened a special meeting via teleconference to discuss whether to appeal its district court loss, but it was not just members of the state board who attended. Also on the call and participating in the deliberation were the executive director of the Tennessee Funeral Directors Association and three funeral directors. Upon their urging, the board voted unanimously to appeal.73
The following month, the state officially appealed the decision, clinging to its assertion that there were threats to public health and safety posed by unlicensed casket sellers. The Sixth US Circuit Court of Appeals would have none of it, however.74 On December 6, 2002, the court produced the following ruling:
Dedicating two years and thousands of dollars to the education and training required for licensure is undoubtedly a significant barrier to entering the Tennessee casket market. The question before the court is whether requiring those who sell funeral merchandise to be licensed funeral directors bears a rational relationship to any legitimate purpose other than protecting the economic interests of licensed funeral home directors. The weakness of Tennessee’s proffered explanation indicates that the 1972 amendment adding retail sales of funeral merchandise to the definition of funeral direction was nothing more than an attempt to prevent economic competition. Indeed, Tennessee’s justifications for the 1972 amendment come close to striking us with “the force of a five-week old, unrefrigerated dead fish,” a level of pungence almost required to invalidate a statute under rational basis review.75
The court further noted that “even if casket selection has an effect on public health and safety,