A Supreme Chance to Bury Crony Capitalism

Published August 13, 2013

In addition to being on the side of the angels, Benedictine monks at St.  Joseph Abbey in Covington, La., appear to be on the side of entrepreneurship and  freedom. People around the country could end up benefiting.

The monks are locked in a legal struggle with the Louisiana State Board of  Embalmers and Funeral Directors, which objects to them selling handmade caskets,  something the monks began doing several years ago. It’s a crime in Louisiana for  anyone but a state-licensed funeral director to sell caskets. The state  threatened the monks with criminal charges, fines and jail time unless they  stopped selling their wooden caskets.

In 2010, the monks sued in federal court, arguing the law is arbitrary,  serves no public purpose and protects a funeral director cartel. In 2011, U.S.  District Court Judge Stanwood Duval of the Eastern District of Louisiana sided  with the monks and struck down the law.

“There is no rational basis for the state of Louisiana to require persons who  seek to enter into the retailing of caskets to undergo the training and expense  necessary to comply with” rules required of funeral directors, Judge Duval  wrote. The law amounts to unconstitutional “naked transfers of wealth” to people  with political pull, he added.

In March, the 5th U.S. Circuit Court of Appeals upheld Judge Duval’s ruling,  and in July, the Louisiana State Board of Embalmers and Funeral Directors asked  the U.S. Supreme Court to overturn the ruling.

Mark Coudrain, a deacon at the monastery and director of its St. Joseph  Woodworks, has pointed out the monks have long made wooden caskets for their  brethren and engage in businesses including farming and logging. These  businesses sustain the monastery, as it receives no financial support from the  Catholic Church.

Hurricane Katrina in 2005 damaged the timber the monks at St. Joseph had been harvesting, prompting them to begin selling their handmade caskets to make up  the loss.

Federal courts are split on the issue. The 10th U.S.  Circuit Court of Appeals in 2004 upheld an Oklahoma law similar to the one the  5th Circuit struck down in Louisiana. The 10th Circuit concluded that “dishing  out special economic benefits” to politically favored industries was the  “national pastime” of state and local governments.

All across the country, we see this “dishing out” pastime at play — as when  billionaires receive taxpayer dollars to build sports stadiums or when big-box  retailers receive taxpayer “incentives” to locate in towns in direct competition  with smaller stores.

Regulations also enable the dishing out of benefits. Licensing laws force  people to spend great amounts of time and money to obtain licenses to engage in  certain occupations. Arguments that we need such licensing to protect the public  ring hollow when we see the list of occupations that must be licensed in some  states: pet sitters, flower arrangers, interior decorators, librarians and  sellers of wooden caskets among them.

The monastery does not arrange funerals or handle human remains, so there is  no safety or public health issue at stake. In the appeals court ruling, the  three-judge panel noted that licensed funeral directors in Louisiana receive no  special training in casket-making. Louisiana law allows the purchase of caskets  from third parties, including online, and the state does not require that a  deceased person be buried in a casket.

The Louisiana law protects funeral directors from competition. This may be  good for them, but it’s bad for the monks and families who may want more choice  in the caskets that are available for their dearly departed.

Let’s hope and pray the Supreme Court takes up the case, sides with the monks  and strikes a blow against the crony capitalism that has indeed become a  national pastime of states and local governments.