Is This the Supreme Court’s Next Big Economic Liberty Case?

In its decision last month in the case of St. Joseph Abbey v. Castille, the U.S. Court of Appeals for the 5th Circuit struck down Louisiana’s requirement that only licensed funeral directors be permitted to sell caskets, handing a victory to the monks of St. Joseph Abbey, who now enjoy the right to build and sell their traditionally-made wooden caskets without unnecessary government interference. “The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation,” the 5th Circuit declared. “The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

At the Appellate Daily blog, Michelle Olsen explains why this important case now has the potential to land before the U.S. Supreme Court:

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

As Olsen notes, the Supreme Court declined to take up the 10th Circuit case from Oklahoma in 2005 despite a clear split between it and a 2002 ruling by the 6th Circuit against a similar casket-sale regulation in Tennessee. Unlike the 10th Circuit, which upheld the licensing scheme as a matter of judicial deference to lawmakers, the 6th Circuit actually bothered to examine the arguments made by Tennessee officials in support of their regulation. Having thus performed the basics of judicial review, the 6th Circuit was left with little alternative but to voice open contempt for the state’s flimsy position. “Tennessee’s justifications,” the 6th Circuit held, “come close to striking us with the ‘force of a five-week-old, unrefrigerated dead fish.’”

Today’s "refreshed circuit split" is equally sharp, with the 10th Circuit’s judicial passivity standing in contrast to the 5th Circuit’s holding that Louisiana's casket-sale licensing requirement is “nonsensical” and possesses “no rational basis.” As Olsen notes, we may soon learn if the current Supreme Court has any interest in finally settling the matter.

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  • John||

    If Louisiana can't prohibit unlicensed people from selling caskets, then how could any state require cars be sold through an authorized dealer?

  • Fist of Etiquette||

    Legislators are the state, not the people. Stop erring on their side, you stupid judicial.

  • ||

    If this went to SCOTUS, and the ruling was anti-licensing, what form do y'all think the wailing and gnashing of teeth would take? I mean from general statists, not "professionals" seeking protection from competition. I don't see a lot of normals complaining that car dealers won't be regulated anymore...and yet who knows, they will probably go FULL RETARD and do just that, right?

  • Virginian||

    If this went to SCOTUS, and the ruling was anti-licensing, what form do y'all think the wailing and gnashing of teeth would take?
  • Virginian||

    Fucking squirrels.

    The tears would be as sweet and flavorful as the gun control tears were last week.

  • ||

    Their gas may be pumped by someone other than trained professionals!

  • Virginian||

    I've had New Jersey liberals tell me, dead serious, that people in other states must have gas station fires all the time due to untrained people pumping gas.

  • db||

    I taught an ex-GF from NJ how to pump gas. She was really nervous and surprised how easy it is. Those folks obviously have been brainwashed.

  • ||

    My college roommate moved back to Portland (after 4 years in CA where anytime he was in the car we'd make him pump our gas), and now regularly sends me funny pearl clutchery regarding gas station attendants. Apparently some woman called a radio show freaking out about the danger and the host deadpanned "Californians can do it, I'm sure we'll be fine"

    God damned Oregonians can be smug even when they can't legally pump their own gas.

  • prolefeed||

    I tried to pump gas in my car on a road trip to Oregon, and the attendent was like, "Sir, sir, you can't do that!"

    I was thinking about telling him to politely fuck off, and see if the police would actually show up and enforce this stupid law, but decided to let it go.

  • Andrew S.||

    Had that happen the first time I drove through New Jersey. Had no clue about the law. With the speed the attendant was running at me, he could have qualified for the Olympics.

  • KDN||

    Had that happen the first time I drove through New Jersey. Had no clue about the law. With the speed the attendant was running at me, he could have qualified for the Olympics.

    Provided you're not at a Hess station or in a rest area on one of the toll roads, nobody cares. I pump my own gas probably 75% of the time (I also leave my car running, mainly to piss off my wife).

  • Nazdrakke||

    I moved to Portland, OR about 6 months ago, and in some ways it's been more disorienting than moving to Europe was.

  • EternalOptimist||

    I was threatened with same, pumped my own gas anyway, and left. It's a meaningless law for simpletons!

  • Virginian||

    I've got quite a few funny stories of stupid Jersey things.

    My favorite is probably the time my friend's aunt asked me how big my farm was. I said "My farm?" thinking I had misheard her. She said "yeah the farm you live on." I told her I lived in a city. She said "Like a big city?" I said "Well, it's bigger then the one we're in right now."

    I guess her mental map is Philly, Ballmer, Washington, then its just wastelands until you get to Disneyworld.

  • Anonymous Coward||

    Let me just put it out there: If you are too stupid to pump gas, then you are too stupid to live.

  • BakedPenguin||

    Without regulation, dead people will be dumped in bogs and rivers! Sick people will be buried alive!

  • ||

    People will have their hair incorrectly braided!

  • Paul.||

    +1 Snoop Dogg.

  • ||

    He's probably not even licensed to ill, is he?

  • A Serious Man||

    That's Snoop Lion.

  • Paul.||

    To you. To me, still Snoop Dogg.

  • Anonymous Coward||

    To me, he will always be Snoop Doggy Dogg.

    Except when he's Snoop D-O-Double-Gizzle.

    Or when he's The Doggfather.

  • Paul.||

    My nizzle.

  • RightofCenter||

    From another thread:

    You gots to tow the Lion.

  • John||

    It would all be about how the evil Supreme Court has left Americans to be prayed on by unscrupulous businesses. After such a decision, we would live in a world where buildings were no longer safe to live and work in, where our children no longer had access to safe food, and Americans were left alone to the mercies of the the nihilistic, selfish evil world.

    That about cover it?

  • ||

    Your children will be exposed the the dangers of an unprofessionally decorated home!

  • John||

    Unlicensed daycare, improperly labeled organic ginger snaps.

  • Paul.||

    left Americans to be prayed on by unscrupulous businesses.

    Now they're being prayed upon by unscrupulous monks!

  • Nazdrakke||

    I see what you did there..

  • Paul.||

    It's nice to be appreciated.

  • Cliché Bandit||

    They're Nihilists Donny!

  • ||

    Unlicensed randoms may start pointing out places of historical interest to tourists! For money!

  • John||

    True story about that. I took a tour of old Savannah once put on by a friend of a friend who lives there and is a fanatic about such things. She was an "unlicensed" tour guide and thus did everything underground. She could not get a license because there was a limited number of them and you basically had to be in with the city hall to get one. But to get a license required no test or any showing of expertise about the city. Thus, most of the information given in the sanctioned tours was wrong or only a half truth.

  • Paul.||

    It's called Municipal Musical Chairs.

    If you don't have a chair when the music stops, you're out. It has nothing to do with merit.

  • John||

    Sorry, it was old Charleston not Savannah.

  • Libertymike||

    Trouble with both geography and history?

  • John||

    No. I just link those two cities in my mind since I visited both for the first time on the same trip.

  • A Serious Man||

    I'm sure the demonizing of Sherman was the same.

  • Virginian||

    Yeah you burn down people's cities, they have a negative opinion of you.

  • Anonymous Coward||

    Tyrion Lannister: I believe they call that "war."

  • Mickey Rat||

    Tywin distrusts you because you are not as smart as you think you are.

  • ||

    I'll never feel safe enough to get a mani-pedi again!

  • John||

    And don't even get started on the human trafficking that goes on with Chinese mani-pedi givers.

  • ||

    Unlicensed taxi drivers will take people the long way to their destinations!

  • A Serious Man||

    Talk about taking someone for a ride!

  • Paul.||

    “Tennessee’s justifications,” the 6th Circuit held, “come close to striking us with the ‘force of a five-week-old, unrefrigerated dead fish.’”

    And when did Dianne Feinstein start testifying for the Tennessee state legislature?

  • prolefeed||

    Every now and then someone who works for the government nonetheless says something awesome instead of obnoxious. This was one of those moments.

  • Eduard van Haalen||

    Those monks will be the last people to let you down.
    Denying them the right to make coffins would be a grave mistake.
    I wouldn't be caught dead in anyone else's coffins.

  • Eduard van Haalen||

    Don't try to bury this story!
    Can you dig it?
    The media won't be able to put a lid on this!

  • Libertymike||

    Gotta love those who undertake the task of making puns.

  • A Serious Man||

    If this case is overturned we'll all be six feet under and the statists dancing on our graves before this issue is resurrected again.

  • db||

    I'm hopeful that this case could be the last nail to occupational licensing.

  • ||

  • ||

    oops, should have put [WARTY] in there

  • ||

    "Bullets" are represented by black, square blocks

    If you've got a penis with a gun shooting at vaginas and the bullets aren't white and squiggly you're the worst game developer ever. FULL STOP.

  • ||

    Plus it is a cisheteronormative, othering monstrosity.

  • ||

    Naw, misogyny is an expression of cismale privelege and cuts across all sexual orientations. Also women can be into it because of false consciousness.

  • ||

    +10 social justice points
    -11 for ciswhite privilege

  • db||

    Evidently not available for Android.

  • ||

    It was pulled from the Play Store.

  • ||

    It got yanked? Before I got to play with it? Man, what a stroke of bad luck I've had.

    Heh.

  • Cliché Bandit||

    keep pulling, it will all come out in the end.

  • Libertymike||

    Long live Lochner!

  • Anonymous Coward||

    Unlike the 10th Circuit, which upheld the licensing scheme as a matter of judicial deference to lawmakers,

    I don't savvy the deference to the legislature. The judiciary is in no way subordinate to the legislature or the executive. When the lawmakers fuck up and the matter appears before the court, then the court has an obligation to put the brakes on it.

    the 6th Circuit was left with little alternative but to voice open contempt for the state’s flimsy position. “Tennessee’s justifications,” the 6th Circuit held, “come close to striking us with the ‘force of a five-week-old, unrefrigerated dead fish.’”

    I so enjoy when the court openly mocks the state's rationale. "We're not even going to pretend you make sense. Just go the fuck away."

  • WomSom||

    Wow that makes a lot of sense dude.

    www.GotzPrivacy.tk

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