It’s Time to Lay This Case to Rest
Louisiana embalmers and funeral directors among those seeking to bury consumers under a mountain of bad laws
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”― Adam Smith, from An Inquiry into the Nature & Causes of the Wealth of Nations
In Louisiana, it is illegal to sell a casket unless you are a licensed funeral director. Though making it illegal to sell what is essentially a fancy box strains credulity, no one had challenged the law prior to 2007 when, in a move intended to allow themselves to support their monastery and contemplative life, the monks of St Joseph’s Abbey began marketing to the public the coffins which they themselves had used for decades.
So what’s the problem with this? In the United States, the average metal casket costs nearly $2,300. On the other hand, the monks of St. Joseph’s Abbey sell two models of caskets – one costs $1,500 and the other costs $2,000. To put it simply, offering families a less inexpensive burial option allowed grieving families to make an economical and dignified choice in a time of need and great stress.
When they first announced their intention to sell caskets on All Saints Day of 2007, the monks did not mean to incur the wrath of the Louisiana State Board of Embalmers and Funeral Directors (LSBEFD), but that is precisely what happened. Slightly more than a month later, they received a cease-and-desist letter promising a number of dire penalties including fines and prison time.
This was followed by a formal complaint filed by Boyd L. Mothe, Jr., the owner of several funeral homes in the West Bank area of New Orleans, that stated in part, “Illegal third party casket sales place funeral homes in an unfavorable position with families. They are quick to become defensive and threatening when they cannot get what they want.” In other words, families become upset when they are forced to purchase a product they don’t want at a price they often can’t afford.
Over the next several years, the monks tried to change the laws. After funeral directors showed up en masse, none of their proposed reforms even made it out legislative committee. In 2010, the Institute for Justice came to the aid of the monks and helped them to begin fighting back against those who would destroy their business in order to protect their own bottom lines.
In 2011, the United States District Court of the Eastern District of Louisiana ruled in favor of the monks in a decision which noted the onerous and absurd requirements imposed upon them in order to sell a wooden box (which included employing a licensed funeral director, setting up a viewing space which could hold thirty people, and maintaining embalming equipment on their monastery premises) and also the fact that, even though people had bought and used caskets from out of state suppliers for more than ten years, the LSBEFD had only once filed an injunction against any of those suppliers. The decision also noted that a casket is not required for burial, that those who purchased them would almost certainly hire a funeral director, and that Louisiana is the only state in the entire country with such onerous and restrictive laws.
The Board promptly appealed, and in 2012, the Fifth Circuit Court also found for the monks in a decision which states,
“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 … 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, makes us doubt that a relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments.”
The LSBEFB has appealed to the Supreme Court
As Frederic Bastiat stated many years ago:
“They will come to learn in the end, at their own expense, that it is better to endure competition for rich customers than to be invested with a monopoly over impoverished customers…That is why I say: Not only is protection communism, but it is communism of the worst kind. It begins by putting the skills and the labor of the poor, their sole property, at the disposition of the rich; it involves a clear net loss for the entire population and ends by involving the rich themselves in the common ruin. It invests the state with the peculiar right to take from those who have little in order to give to those who have much.”
Is there any better summation of what the LSBEFD is trying to do? Can anyone seriously claim that they are trying to do anything other than use the power of the law to take advantage of families in their hour of greatest need? It’s time to bury this bad law, once and for all, and bury Louisiana’s unfortunate history of economic protectionism and heavy-handed regulation.