WHEN COURTS IGNORE THE BOTTLENECKING REALITY
At the most obvious level, the courts’ decisions meant that Pastor Craigmiles, the monks, and anyone else in their states were finally free to enter the casket market. But the fact that the courts gave the arguments of Pastor Craigmiles and the monks any consideration at all was itself virtually unprecedented in the legal arena.
Since the late nineteenth century, courts have paid scant attention to the economic rights of petitioners, instead deferring to the supposed will of the people in the form of legislatures. But what really occurs in state capitols across the country is not lawmakers proactively seeking ways to protect citizens from dangerous occupational practitioners or responding to harmed consumers demanding increased regulation of an industry. It is trade associations wielding influence over legislators who are all too willing to comply with their demands in order to secure votes and favors from an identifiable, energized voting bloc.99
What the courts have essentially done for many decades is to allow the co-option of government power by small interest groups for their own benefit to go unchecked. These groups deny the right of others to practice their occupation free from onerous and unnecessary government intrusion100—the type of intrusion that requires someone who merely wants to sell a wooden box to be required to apprentice at a licensed funeral home for one year, take a funeral industry test, and maintain a funeral establishment complete with embalming equipment. More often than not over the last hundred-some-odd years, the result has been stories like that of Kim Powers Bridges.
In the early 1980s, Kim was on the executive fast track. Raised in a family of hardworking Oklahoma entrepreneurs, she began work after college in the Texas office of a real estate management firm, where she quickly became the youngest regional manager in the company. In 1991, she returned to her hometown of Ponca City, Oklahoma, joined a financial services company, and grew to become one of the top producers in the state.101
Despite her success, Kim was restless. The economic rewards of her accomplishments failed to satisfy a long-simmering desire to combine her sense of determination with a call to serve others, but she could find no clear direction on where or how to do so. The answer came from her children’s babysitter,102 whose husband was a funeral home director looking for someone to run his business’s “preneed” services—for those who choose to make funeral arrangements before their deaths.
At the babysitter’s urging, Kim reluctantly agreed to meet her babysitter’s husband and discuss the position, but she harbored deep skepticism about such a move. She had established herself successfully in the financial services field in Ponca City and doubted that this industry about which she knew essentially nothing could hold any promise for her. Her attitude, indeed her whole life, changed when she learned more about the work.103 “I realized this job would put me in a position to help someone on the worst day of his or her life, or to prepare a person for that day,” Kim explained. “I knew this was something I would do for the rest of my life.”104
In 1993, Kim joined one of the largest funeral home operators in North America, and, as before, her hard work resulted in numerous promotions—area sales manager, regional sales manager, and beyond. But the promotions came at a price. Each move took her further away from serving clients and deeper into the morass of corporate bureaucracy and office politics. After five years, she sensed it was time to take what she had learned and return to her entrepreneurial roots.
Kim was a third-generation female entrepreneur. Her mother and grandmother had both been entrepreneurs, running a series of successful businesses by discerning a need in the market, shaping the business to meet demand, and growing it to sustainability and profitability. Growing up and working in such an environment conditioned her well. During her time in the funeral business, Kim came to recognize an area of significant consumer need—reasonably priced funeral merchandise.105 She formed a partnership with Dennis Bridges, who had recently left the same funeral corporation as she had with the goal of opening a business. Together they spent a year developing an online store that would operate in Oklahoma. “It’s not been something that we just dreamed up [one] morning and then said, ‘Hey, let’s go sell a casket,’” she said.106 Although an online store could operate from any location, Kim elected to remain in her native state to maintain relationships with family and friends and raise her children in her hometown.
The store, Memorial Concepts Online, would offer caskets, among other things, at deeply discounted prices to better serve customers who had few options beyond funeral homes that charged markups of as much as 600 percent.107 As other online funeral merchandise retailers had already demonstrated, even with such discounts the business stood a good chance of turning a profit.108 At the time, critics of online casket sales, like the NFDA, advised against the practice, asserting that visits to funeral homes by the bereaved were therapeutic. But as the popularity of online retailers grew, even the NFDA recognized the change in consumer practices: “More and more, instead of going to the funeral home, people are saying, ‘I don’t need that—I’ll e-mail you,’” admitted Robert M. Fells, general counsel for the NFDA.109 According to Jay Kravetz, the editor of a funeral trade publication, the reason for the shift was simple: “When you visit casket dealers online, you can look at something over and over again. . . . You’re not pressured—you have time to look with relatives and friends. It’s really easier online.”110
Although Kim and Dennis believed they had a winning business plan, they faced a significant problem. Like Louisiana and eight other states at the time,111 Oklahoma required casket sellers to be licensed funeral directors. And similar to other states’ licensing schemes, Oklahoma’s licensing required two years of full-time college coursework, involving a one-year apprenticeship during which the student would have to embalm at least twenty-five human bodies and maintenance of a funeral establishment that included a “preparation room,” a “selection room” with inventory on hand, and “adequate areas for the viewing of human remains.”112
As if it were not irrational enough to require all of that simply to sell an empty box, the law also applied only to Oklahoma companies selling caskets to consumers within the state. Any casket seller located anywhere other than Oklahoma could sell to the state’s citizens without having to be an Oklahoma-licensed funeral director. And Oklahoma-based casket retailers without a funeral director’s license could sell to anyone in any other state.113 Simply put, Memorial Concepts Online, planning to operate as an Oklahoma-based company, would be able to sell to anyone except people in Oklahoma. As Kim noted, “We could just have moved the [Internet] servers 40 miles north” into Kansas and been allowed to sell caskets to fellow Sooners.114
Instead, Kim elected to keep the business in her home state and fight a law she believed to be not only wrong but injurious. As she put it, “The restriction was unfair, and ultimately, harmful to the families our industry serves.”115 Because of the inflated prices it created, the law imposed an unnecessary hardship on grieving families, something that offended Kim in her belief that it is the industry’s obligation to serve these families in their hour of need.116
Kim was not alone in viewing the law as harmful. Beginning in 1999, state legislators repeatedly attempted to eliminate the restriction on casket sales. The first attempt came in a House of Representatives bill introduced by Carolyn Coleman, but the bill never received a committee hearing.117 So, Representative Coleman tried again to pass the measure by appending it to another House bill focused on licensing counselors and therapists.118
During the debate on the amendment, Coleman supported her position with facts about severe casket markups, citing research indicating that a casket that sold for $5,000 could be found at a price as little as $2,000 if purchased directly from a manufacturer. The bill, if adopted, was estimated to save the state’s consumers up to $20 million per year.119 Opponents
