Federal Court Tears Apart Louisiana's "Nonsensical" Case for Licensing Intrastate Casket Sales


For the past five years, the monks of Saint Joseph Abbey have been battling the Louisiana State Board of Embalmers and Funeral Directors over their right to make and sell handmade caskets within the state. Although Louisiana does not otherwise regulate caskets—indeed, it's perfectly legal to build your own casket—the state board nonetheless declares that only licensed funeral directors may engage in the intrastate sale of caskets, and they may only sell those caskets to the public at licensed funeral homes. The nine member board, it's worth noting, is made up by law of four licensed funeral directors, four licensed embalmers, and one additional member not affiliated with the funeral industry.

Charging that the state board violated their rights, the monks brought suit in federal court, represented by the Institute for Justice, a public interest law firm. In a strongly-worded decision issued yesterday, the United States Court of Appeals for the 5th Circuit awarded the monks a major victory.

"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 naked transfers of wealth," the 5th Circuit declared. "That Louisiana does not even require a casket for burial, does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral directors to have any special expertise in caskets," the court continued, "makes us doubt that a relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments."

Moreover, the 5th Circuit took the more unorthodox step of asking the Louisiana Supreme Court to offer its own opinion on whether the board's actions were legal under state law. "Specifically, to our eyes it is unclear whether, under Louisiana law, the State Board has authority to regulate casket sales in and of themselves when such sales are not incidental to the seller's provision of any other funeral services," the 5th Circuit wrote. In other words, if the state board has been acting illegally all along, there's no need for the 5th Circuit to rule on the issue of constitutionality. But if the Louisiana Supreme Court finds that the board did act within its authority under state law, then the 5th Circuit will strike down the licensing requirement for violating the Constitution.

Either way, this is a humiliating loss for the Louisiana State Board of Embalmers and Funeral Directors and its arbitrary licensing scheme.