Federal Court Strikes Down Louisiana's "Nonsensical…Economic Protectionism"


In October 2012 the U.S. Court of Appeals for the 5th Circuit issued a humiliating rebuke to the Louisiana State Board of Embalmers and Funeral Directors. At issue was the board's requirement that only licensed funeral directors be permitted to sell caskets within the state, a rule that applied even to those individuals who only made and sold caskets and never once came in contact with a dead body as part of their work, such as the monks of St. Joseph Abbey, who brought suit with the help of the Institute for Justice. "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. Furthermore, because "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 asked the Louisiana Supreme Court to determine if the state had been acting illegally under state law all along. If that turned out to be the case, then the 5th Circuit would let the law die in state court. But if it was not, then the 5th Circuit would rule against the board under the U.S. Constitution. Either way, the licensing law would be finished.

This saga finally came to a conclusion yesterday. Because the Louisiana Supreme Court "has declined our request to clarify this statute's meaning," the 5th Circuit was left with no choice but to strike down the "nonsensical" regulation. "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 5th Circuit declared, "leads us to conclude that no rational relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments."