Monks Prevail On Appeal Over Rent-Seekers And Bureaucrats

Law, Politics & Current Events

Back in 2010 I wrote about a lawsuit by the Institute for Justice on behalf of the monks of Saint Joseph Abbey of St. Benedict, Louisiana. The monks want to sell gorgeous hand-crafted wooden caskets; they are opposed in this effort by Louisiana legislators and bureaucrats, who are the corrupt lapdogs of the behemoth funeral industry. The obedient lapdogs told the monks that they would pay fines, or go to jail, unless they became fully licensed "funeral directors." As I said back then:

Louisiana law purports to require that anyone who is going to sell a casket has to jump through all same regulatory hoops as a full-fledged mortuary operation that embalms bodies. See, selling "funeral merchandise" (including caskets) means you are a "funeral director." And to be a "funeral director," you must be approved for "good moral character and temperate habits" by a funeral-related government entity [of course, that's in Louisiana, but still], complete 30 semester hours at college, apprentice with a funeral director for a year, pay an application fee, and pass an exam. But that's not all. If you want your facility to sell caskets, it's got to qualify as a facility for funeral directing, including a showroom and "embalming facilities for the sanitation, disinfection, and preparation of a human body."

Why does Louisiana officialdom require all that? They do so because they are the lapdogs of the funeral industry — and the funeral industry manipulates the mechanism of the state to create barriers to entry and impediments to competition, because they don't want monks offering lower-cost competition to their ruinously expensive and ugly coffins.

The monks, to my surprise, won in the district court. Yesterday, they won on appeal as well. The Fifth Circuit released a rip-roaring opinion largely in their favor, certifying a relatively narrow issue of state law to the Louisiana Supreme Court. The Court expressed disdain and skepticism at the protectionist arguments of the state and the rationality of the statutory scheme: "As we see it, neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose, but economic protection, that is favortism, may well be supported by a post hoc perceived rationale as in [some prior cases] – without which it is aptly described as a naked transfer of wealth." The court also exposes the state's clearly pretextual justifications for the rule to actual rigorous scrutiny, which it does not survive. What is alarming and contemptible is how the state here argued openly that it should be allowed to pass legislation preferring its cronies over their competitors, and how it was willing to assert that there is a rational basis for making monks handcrafting caskets learn to be embalmers.

Is this a victory? Yes. But it's a victory that is like being struck by lightning. You won't see it again soon. For the most part, the courts allow legislators and regulators to prefer their donors and cronies by erecting barriers to entry and irrational rules with only the thinnest and most preposterous veneers of public good. They and their industry cronies think they are entitled to do so. It is up to us to show them otherwise.

Via Walter Olson and Nola.com.

Last 5 posts by Ken White

26 Comments

26 Comments

  1. Paul Baxter  •  Oct 24, 2012 @9:52 am

    It does seem to be a rare day that a protectionist law gets overturned. Perhaps the citizens of Louisiana should declare it a state holiday. Parades might be in order.

  2. David Schwartz  •  Oct 24, 2012 @10:04 am

    You know what's really like being struck by lightening? Vitiligo.

  3. Ancel De Lambert  •  Oct 24, 2012 @10:50 am

    My man-brain failed at this: "but economic protection, that is favortism, may well be supported by a post hoc perceived rationale as in [some prior cases] – without which it is aptly described as a naked transfer of wealth."
    Is that them looking for.. you know what, I just have no idea what that means.

  4. Collin  •  Oct 24, 2012 @11:00 am

    *lightning

  5. Ken  •  Oct 24, 2012 @11:02 am

    If I had editors I would flog them.

  6. sorrykb  •  Oct 24, 2012 @11:08 am

    @Ancel De Lambert: My brain boggled a bit at that too, but I think it says, in essence: "Economic protectionism may be supported by a rationale, but absent a good rationale, it's just money-grubbing thievery." But I could be wrong.

  7. David Schwartz  •  Oct 24, 2012 @11:31 am

    I think it's just awkwardly trying to say that the purported rationale for protectionist regulation is often a rationalization. Rent seeking often poses as consumer protection, for example.

  8. Al  •  Oct 24, 2012 @11:35 am

    There was also the hair braider in Utah that won a similar lawsuit. Does two cases in one year make a trend?

  9. Joe Pullen  •  Oct 24, 2012 @11:47 am

    I don’t understand how simply making the “container” for a dead person’s remains would necessitate becoming a fully licensed "funeral director" any more than someone in consumer goods packaging needs to become FDA certified to create a container for some manufacturers food/beverage item.

    Besides, funerals are for the living. The dead do not concern themselves with what sort of “container” they are placed in. They’re dead. They don’t care. It’s not like they’re going to wake up and say oh shit I’ve got to redecorate the place.

    I’ve told my kin if they waste money on doing this to me I WILL come back and haunt them. Just stick me in a cardboard box and throw me in the oven. Shake and bake baby.

  10. Joe Pullen  •  Oct 24, 2012 @12:03 pm

    @Me – bad example – apparently food packaging DOES need to be FDA certified. So much for my point.

  11. Caleb  •  Oct 24, 2012 @12:12 pm

    It's a narrow victory, yes. And rare as well. But it's a victory, and for that I'm glad.

  12. Reed T  •  Oct 24, 2012 @12:15 pm

    @Joe – Perhaps a better variation on your example would be the food package producer being required to be a state board certified nutritionist?

  13. Joe Pullen  •  Oct 24, 2012 @12:17 pm

    @Reed T – yes – much better. Thanks

  14. Lex  •  Oct 24, 2012 @1:47 pm

    A rare but undeniable victory for the forces of good. In fact, Imma go out back and start making coffins tonight.

    No. Wait. Imma do homework tonight. But once my thesis is finished …

  15. JdL  •  Oct 24, 2012 @3:22 pm

    I've started giving a lot of my discretionary donation dollars to the Institute for Justice. They're on the right side (IMHO), they pick their battles carefully, and often win almost unprecedented victories.

  16. Gal  •  Oct 24, 2012 @4:04 pm

    Just because were bereaved doesn't make us saps!

    Sorry, had to get that off my chest.

  17. Josh C  •  Oct 24, 2012 @6:56 pm

    @ancel:
    Roughly, 'putting lipstick on a pig, doesn't make it not a pig.'
    Less roughly: "you may come up with a rationale for thievery after the fact, but anyone outside your little group sees it for what it is. "

  18. Josh C  •  Oct 24, 2012 @6:58 pm

    Though, I'm really not certain how it's a victory that the fifth circuit has decided to judge the "goodness" of state laws, as opposed to (say) constitutionality.

  19. SA  •  Oct 24, 2012 @9:40 pm

    I read the post from 2010 that Ken links to at the top of this post, and it looks as if constitutionality was the challenge. Here's the specific snippet from that post:

    "The Institute for Justice has sued in federal court on behalf of the monks, seeking an injunction against the relevant Louisiana codes. They assert that they violate the monks' due process, equal protection, and privileges and immunities rights."

  20. Adrian Ratnapala  •  Oct 25, 2012 @12:07 am

    …expressed disdain and skepticism at the protectionist arguments of the state and the rationality of the statutory scheme…

    Nice that the judges disdain the legislature, but what is the grounds for striking down the law. 14th Amendment? As much as it pains me, it is perfectly understandable that the judiciary wants to leave the fight between protectionism and the free market economics to the judgement of voters.

  21. Adrian Ratnapala  •  Oct 25, 2012 @12:12 am

    …you must be approved for "good moral character and temperate habits" by a funeral-related government entity

    Reading this, did anyone else have a mental image of the monks in their refectory quaffing down wine from jugs, lustily singing about their love of the Devil while a row of their brothers stand on the head table doing the Cancan?

    Not that there's anything wrong with that.

  22. SA  •  Oct 25, 2012 @6:24 am

    Some of the most *fun* music has been made about that …

    Ego sum abbas Cucaniensis
    et consilium meum est cum bibulis

    "good moral character and temperate habits" always made me want to go leaping to read the definitions portion of the bill.

    "Funeral-related government entity" is just scary.

  23. Josh C  •  Oct 25, 2012 @7:37 am

    @SA
    It seems extraordinarily unlikely that the court would have overturned a similar regulation on who can offer legal services, even though that is exactly the same situation. To me, that suggests that the court disagreed with the legislature on what protections the public needed, not that whether they are allowed to require guild membership generally. No matter how much I agree with their conclusion, it's hard for me to get real excited that the fifth circuit believes this ball was in the judiciary's court.

  24. Kelly  •  Oct 26, 2012 @6:49 am

    "good moral character and temperate habits" Shouldn't they have some sort of free pass on this alone? I mean they are *monks* and all?

  25. mojo  •  Oct 26, 2012 @7:56 am

    Because it's impossible to bury a stiff if you're not of "good moral character and temperate habits", obviously!

    Silly.

  26. andrews  •  Oct 28, 2012 @1:24 pm

    extraordinarily unlikely that the court would have overturned a similar regulation on who can offer legal services

    The difference is in what is being offered. If the [state] Bar said that only lawyers could sell these yellow tablets on which we write our notes, then you would have an analogous situation. People could no longer buy yellow memo pads but from lawyers or out-of-state vendors.

    There is no especial legal expertise requires to sell yellow memo pads, nor is there an especial embalming expertise required to sell wooden boxes.