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.
Last 5 posts by Ken White
- Shock, Dismay In Academia At Scorpion Acting Like Scorpion - June 28th, 2017
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017