PITTSBURGH (CN) – A rabbi sued Pennsylvania in Federal Court, claiming it threatened him with “fines and imprisonment for conducting religious funerals,” because he’s not a licensed funeral director.
Daniel E. Wasserman, an Orthodox rabbi, claims Pennsylvania enforces its unconstitutional Funeral Director Law “without cause or legal basis … to capture a lucrative revenue stream” for funeral director’s licenses.
Wasserman says the law threatens “his sincerely-held beliefs and … a religious obligation for burials dictated by ancient texts and teachings that Jews have considered holy for literally thousands of years.”
Defendants include the eight members of the State Board of Funeral Directors, the Chief Counsel of Pennsylvania’s Department of the State, and the director of its Bureau of Enforcement and Investigation.
Wasserman says he’s director of funerary practices of the VaadHarabonim of Pittsburgh and its ChevraKadisha, and lead rabbi for funerary practices of the supervising authority of Orthodox Jewish rabbis in Pittsburgh.
He says he and his fellow rabbis practice “centuries-old prayer, practices and custom of religious burials and funerary rites, without payment or profit, and without the use of preservatives or cosmetics for the deceased whatsoever.”
The rabbi adds: says “The language of FDL [Funeral Director Law] demonstrates that the Legislature intended only to regulate the for-profit, commercial business practices of undertakers, morticians and embalmers.”
According to the complaint, “The FDL, by its terms and its history, was rightly intended to police business practices of for-profit undertakers and morticians in order to protect grieving persons at their most vulnerable, and further, to regulate the practice and the methods of scientific preparation of embalming and cosmetizing bodies, for the health and safety of the public, both living and dead …. [and] may still serve as a legitimate exercise of the state’s ‘police power’ against abusive commercial practices (i.e. selling overpriced and unnecessary goods and services) and to ensure safe practices of embalming with potentially dangerous chemicals.” But Wasserman says the law was not “intended to apply or restrict religious clergy, the religious bodies they represent, nor the families and deceased persons they serve, from engaging in wholly-religious practices in the death, religious preparation, mourning, and physical burial of a deceased person, provided those practices were not for-profit, did not involve embalming or cosmetizing, and were done in full compliance with Department of Health regulations and permits.”
Wasserman says he received a warning letter from a licensed funeral director after he conducted a funeral ceremony in late December 2009. He says the funeral director accused him of breaking the law by not having a licensed funeral director present during the services.
The director also sent his letter of complaint to the Board of Funeral Directors and “a number of other prominent funeral homes in Pittsburgh, including ones that primarily serve the Jewish community,” according to the complaint.
Then an investigator from the state’s Bureau of Enforcement and Investigation contacted the rabbi. Wasserman says he voluntarily submitted to an interview and gave a tour of his synagogue to the investigator in May 2010.
In that interview, Wasserman says, the investigator represented that the Amish are permitted to conduct funerals without licensed directors, that Amish who hired directors to conduct embalming services were given bodies back for other unsupervised funeral rites, that other religious groups had conducted burials without embalming and without directors present, and that they suffered no enforcement action. And, the rabbi says in the complaint, “the Department of Health (without official protest by the State Board) had changed the language of Pennsylvania’s Certificate of Death and Disposition/Transit Permit to reflect this allowance for non-licensed persons.”
Wasserman claims the investigator refused to show him the original letter of complaint or disclose its source, citing “confidentiality provisions” of the Funeral Directors Law, and refused again when another complaint against him surfaced in January 2011 – five months after the “60-90 day turnaround” process promised to close the original complaint.
Wasserman says the second complaint referred to a service conducted the previous summer, which two funeral directors attended to gather information and “intimidated mourners through their actions.”
He claims the investigation and threat of prosecution and civil enforcement “caused some members of his congregation, the Shaare Torah synagogue board, and the religious community as a whole not to have him conduct funerals, or to do so in a way which burdened his, their, and deceased persons’ religious freedoms.”
He says the threat of prosecution also caused funeral directors to refuse him access for fear of having their licenses revoked, and caused local cemeteries to bar him from performing religious rites unless they are done with a funeral home.
“Families have also informed Rabbi Wasserman that they were told by funeral directors ‘to be careful’ about using the religious services offered by [him] because they would not be in accordance with state law,” according to the complaint.
Wasserman says the Board of Funeral Directors informed him in May this year that it was deferring formal prosecution, but reserved the right to “reopen” the matter “for any reason.”
Wasserman says the Funeral Directors Law is unconstitutional, that it violates equal protection and religious freedom rights of “some Pennsylvania clergy, their lay assistants, and all of the religious persons they serve, who collectively seek only to practice their faith free from state intervention – all while adhering to all applicable regulations of the Commonwealth’s Department of Health.”
His lead counsel is Jeremy Feinstein.