Law professor, morticians weighing in on Wasserman lawsuit
The success or failure of Rabbi Daniel Wasserman’s lawsuit against the state to freely perform religious funerals without a funeral director present could hinge on a rarely invoked state law, a Duquesne University law professor says.
But in this case, Wasserman’s lawyers do invoke it.
Pennsylvania’s Religious Freedom Protection Act states that an agency “shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability.”
According to Wasserman’s civil complaint, the state’s enforcement of the Funeral Director Law poses just such a burden.
“It’s rarely used, and its new,” Duquesne law professor Bruce Ledewitz said of the law which was enacted in 2002. Doing a cursory search, Ledewitz could only find six cases going back to 2005 that have invoked the act.
Ledewitz also said the state can enact laws requiring funeral directors to be involved in burials, so long as the law is applied consistently. In this case, though, Wasserman is claiming the law is applied selectively with some religious groups such as Amish and Quakers, not being held to the same standards.
Ledewitz added, however, that the First Amendment does allow rules of general applicability even if they burden religion, which permits the state to have a rule always requiring funeral directors. Such rules are not always unconstitutional.
That is where the PRFPA comes in.
Ledewitz said he expects the state to deny that it applies its rule in a discriminatory way, but even if that is so, if the rule burdens religion, the rule might be illegal under PRFPA.
Wasserman filed suit in U.S. District Court for the Middle District of Pennsylvania. The complaint claims the state is infringing on his constitutional rights to freely practice his religion by investigating his activities and threatening him with stiff penalties for performing Jewish funeral and burial rituals required of Orthodox rabbis.
He also claims the state’s probes have had a chilling effect on his work as a rabbi.
According to his complaint, Wasserman’s work does not a pose a health and safety risk to the public because he is not embalming the bodies or performing any other cosmetic or restorative work done by trained funeral directors.
But fewer funeral directors who have spoken to the Chronicle, mostly on condition that their names not be used, disagree. They say a health and safety risk is present anytime one handles a dead body, which is why only licensed and trained directors should do it.
They also say rabbis may be present at all steps of the funeral and burial processes, and while most Orthodox burials occur 24 hours after death, the directors said, sometimes that’s not possible because the body or the family is out of town or someone dies on a religious holiday.
“In this day and age, we have so many horrible diseases that we didn’t recognize in the past or didn’t exist,” said Daniel T. D’Alessandro, a Pittsburgh funeral director who did speak for the record. “A lot of these remains need special treatment, even if they’re not embalmed.”
D’Alessandro was the funeral director who first reported Wasserman to the state.
“Funeral directors are licensed; we’re held to a certain standard — all of us,” D’Alessandro said. “If we don’t hold to that standard, we get whacked hard.”
(Lee Chottiner can be reached at email@example.com.)