A 5-2 Supreme Court held in Porter v. Wisconsin Funeral Directors Examining Board that the anti-combination laws prohibiting ownership of both a cemetery and funeral home are constitutional. In another interesting split decision for this term, liberal Justice Shirley Abrahamson wrote the opinion, and only two out of five conservative justices dissented.

The plaintiff in this case is E. Glen Porter, who owns Highland Memorial Park cemetery in New Berlin and wished to expand his business by opening a funeral home. Because owning both is illegal under the anti-combination laws (Wis. Stat. § § 157.067(2) and 445.12(6)), Porter sued the state, arguing a violation of the constitutional rights to due process and equal protection.

The court used the same rational basis test as in Mayo to determine that the anti-combination laws are rationally related to legitimate government interests in protecting consumers. Therefore, the anti-combination statutes survive the rational basis test and survive Porter’s constitutional challenge.

The dissent from Justices R. Bradley and Kelly disagrees with the state’s assessment that joint ownership of cemeteries and funeral homes would create an unfair market and harm consumers. Thus, the dissent argues the anti-combination laws lack rational relation to the legitimate government purpose of protecting consumers. The dissent also suggests that a potential violation of the fundamental right to economic liberty deserves strict scrutiny, rather than the broader rational basis test.