Louisiana Caskets

Introduction

For centuries, monks have supported themselves with common trades such as farming, brewing beer and harvesting timber. Today, the monks of Saint Joseph Abbey in Covington, La., hand-make plain wooden caskets. Selling caskets helps the monks pay for food and healthcare, and helps them share their belief in the noble simplicity of life and death.

But selling caskets has also turned the monks into criminals. The State Board of Embalmers and Funeral Directors is now going after Abbot Justin Brown and Deacon Mark Coudrain for the “sin” of selling caskets without a government-issued license.

Under Louisiana law, it is a crime for anyone but a licensed funeral director to sell “funeral merchandise,” which includes caskets. ¹ To sell caskets legally, the monks would have to apprentice at a licensed funeral home for one year, learn unnecessary skills, and pass a funeral industry test. ² They would also have to convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming human remains. ³

Keep in mind: There is no legitimate health or safety reason to license casket sellers. A casket is just a box and you do not even need one for burial.

The only reason the state of Louisiana is preventing the Abbey from selling its caskets is to protect the profits of the state’s funeral directors—an unconstitutional use of government power. The law is on the books, and the State Board is enforcing it, because licensed funeral directors want the funeral merchandise market to themselves. The only people who have complained about the monks are licensed funeral directors. This cartel—through its lobby group, the Louisiana Funeral Directors Association—has told the monks that they can enter the casket market only if funeral directors get a cut of every sale. ⁴

That is why on August 12, 2010, the monks of Saint Joseph Abbey and Deacon Mark joined the Institute for Justice, a national public interest law firm that protects the rights of entrepreneurs, in filing a federal constitutional lawsuit against the state to vindicate their right to earn an honest living. In a time of 10 percent unemployment and widespread economic pessimism, this case has national implications because it raises one of today’s most important constitutional questions: Can the government restrict economic liberty just to enrich a group of politically favored insiders such as licensed funeral directors? It’s a problem found in every city and every state in the nation.

Saint Joseph Abbey and Its Caskets

Benedictine monks established a new monastery near Covington, La., in 1889. Elevated to abbey status in 1903, Saint Joseph Abbey is a Catholic monastery that for generations has trained the majority of the priests in southern Louisiana. As a Benedictine monastery, the monks follow the teachings of Saint Benedict of Nursia, a sixth-century Christian monk who lived near Rome. This ancient tradition is encapsulated in the Benedictine motto “ora et labora” (prayer and work). The monastic life at Saint Joseph Abbey is one of liturgical prayer, the singing of psalms, simple labor, education, and hospitality toward those seeking a contemplative respite from the world.

Saint Benedict instructed monastic communities to support themselves financially through the practice of common occupations. For centuries, Benedictine monks and monks of other orders have engaged in trades such as farming, brewing beer and making wine. Over the years, the monks of Saint Joseph Abbey have farmed and harvested timber on their property.

Saint Joseph Abbey is not wealthy—just the opposite, in fact—and the monks were told by lay advisors in the late 1990s that they needed a new way to support themselves. But what could the monks do in the modern world while preserving their quiet life centered at the monastery?

The answer was casket-making. On November 28, 1992, Bishop Stanley Ott of Baton Rouge died and was buried in one of the simple wooden caskets that the monks had been making for themselves for decades. Bishop Warren Boudreaux of Houma-Thibodaux was also buried in an Abbey casket when he died on October 6, 1997. These funerals led many people to inquire about buying Abbey caskets for their loved ones, and these requests kept coming through the early 2000s.

This was the perfect opportunity for the monks: Casket-making was a simple occupation that could be performed at the monastery; hand-made monastic caskets are a unique product for which there is a large market; and selling caskets enables the monks to share their view of the simplicity and unity of life and death. Monasteries in Indiana, Illinois, Iowa and Minnesota are already in the casket business.

Like good entrepreneurs everywhere, the monks—who own everything communally—invested in themselves and converted an old cafeteria building on their property into a well-equipped woodshop.

The State Declares Saint Joseph Woodworks D.O.A. to Protect the Do-Re-Mi

The monks officially unveiled Saint Joseph Woodworks on November 1, 2007, which coincided with All Saints Day. The Clarion Herald, which is the official newspaper of the Archdiocese of New Orleans, ran an article about the new venture.

Unfortunately, this article caught the eye of the Louisiana State Board of Embalmers and Funeral Directors and the cartel of state-licensed funeral directors. Sensing a threat to their bottom line, the Louisiana funeral industry rapidly mobilized against the monastery. On December 11, 2007—before the Abbey had sold even one casket—the State Board informed the Abbey that selling caskets violated the law and would subject the monks to crippling fines, jail time and a possible injunctive lawsuit against them by the state. ⁵

Unbeknownst to the monks, Louisiana law makes it a crime to sell “funeral merchandise,” including caskets, without a funeral director license. To sell caskets legally, the monks would have to apprentice at a licensed funeral home for one year and take a funeral industry test. They would also have to convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming human remains.

Tellingly, the State Board’s December 11, 2007 letter did not explain why selling caskets was illegal or what harm to the public the State Board was trying to avoid by threatening the monastery. In fact, there is no public health or safety reason for requiring a funeral director’s license—or a license of any kind—to sell a casket. A casket is just a box. It does not serve any sanitary purpose. A casket is not even a requirement for burial in Louisiana. You can place a human body directly in the ground, wrap it only in a shroud, or use a cardboard casket. You can also use a casket you make yourself or use a casket someone else makes as long as he or she does not sell it to you.

There is only one plausible explanation for Louisiana’s restrictions on who can sell caskets: money. The cartel of licensed funeral directors has successfully lobbied the legislature to carve out a lucrative monopoly on funeral merchandise. By creating barriers to entry that wall out entrepreneurs like the monks of Saint Joseph Abbey, licensed funeral directors are able to charge higher prices than would be available in a more competitive market.

This is evident in the first formal complaint against the monastery, which was made to the State Board on January 8, 2008, by Boyd L. Mothe, Jr., the vice president of Mothe Funeral Homes. Mothe stated that: “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.” ⁶ In other words, the “problem” is that customers get mad when funeral homes refuse to let them use caskets that they bought from someone other than a funeral director.

The State Board swiftly launched an investigation into the monks, questioning Abbot Justin Brown on January 30, 2008. ⁷ The Abbey took the position that they were not necessarily in agreement with the Board’s legal conclusions and, in any case, the monks were going to try to change the law. In what amounts to civil disobedience in the face of injustice, the monks continued to sell their caskets discreetly because they were not harming anyone and they were working to change the law.

It is no surprise that the State Board of Embalmers and Funeral Directors clamped down on the monastery for the benefit of the funeral industry. Nine of the ten members of the State Board are licensed funeral directors. ⁸ The industry’s lobby group—the Louisiana Funeral Directors Association—continually pushes pro-industry legislation.

The power of the licensed funeral director cartel is evident in the monks’ inability to achieve a compromise. Being non-confrontational by nature, the monks assumed the State Board’s order was essentially a misunderstanding that could be cleared up through negotiation or, if the State Board was simply enforcing a legal technicality, with a simple revision of the law. The monks went to their local state representative, Scott Simon, who agreed in May 2008 to introduce a bill amending the law to the Commerce Committee. The funeral industry lobbyists opposed the bill and funeral directors showed up at the hearing en masse to register their disapproval. The bill was killed in committee.

The Abbey tried legislative reform again in the spring of 2010. This time State Senator Francis Thompson drafted a bill to exempt the Abbey and other nonprofit casket sellers. Once again, the funeral industry opposed the bill and it never emerged from committee.

On March 30, 2010, the State Board subpoenaed Abbott Justin Brown and Deacon Mark Coudrain, commanding them to appear before the board, and answer allegations under oath about the Abbey’s casket sales. The subpoena states that if they are found guilty they will be subject to fines between $500 and $2,500 for each casket that was illegally sold and up to 180 days in jail. ⁹

The Legal Challenge: Defending Economic Liberty

But neither the monks nor Deacon Mark intend to show up at the August 12 hearing to be punished for doing something—exercising their right to earn an honest living—that should not be a crime. That is why Saint Joseph Abbey and Deacon Mark have teamed with the Institute for Justice to bring suit in federal court on August 12, 2010, to vindicate their economic liberty. The Institute for Justice is a Virginia-based public interest law firm that represents entrepreneurs whose rights are being violated by the government.

The Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment to the U.S. Constitution protect economic liberty—the right to earn an honest living free from arbitrary and irrational government interference. The Equal Protection Clause of the Fourteenth Amendment forbids the government from making arbitrary distinctions between citizens.

Louisiana is violating the monks’ economic liberty under the Due Process and Privileges or Immunities Clauses because keeping the monks from earning an honest living through casket sales simply to protect the private financial interests of the funeral industry cartel is not a legitimate exercise of government power. Louisiana is also violating the Equal Protection Clause because there is no legitimate reason to allow licensed funeral directors to sell caskets but prevent other individuals, such as the monks, from doing the very same thing.

Restoring Economic Liberty Through Judicial Engagement: An Issue for the Supreme Court

In a time of 10 percent unemployment and widespread economic pessimism, this case has national implications because it squarely addresses one of the country’s most important unresolved questions of constitutional law: Can the government suppress economic liberty just to protect the private financial interests of a politically favored group such as licensed funeral directors?

The monks’ effort to start a productive business is a story that countless American entrepreneurs face: (1) irrational laws enacted to protect industry insiders from competition; and (2) a well-organized industry lobby that makes even the most commonsense statutory reform all but impossible. Since 1950, the number of jobs that require a government license has increased by 600 percent, and the domination of government boards by members of a regulated industry is so common that economists have a name for it: regulatory capture. In the 1950s, only one in 20 jobs required a government license. Today 30 percent of all jobs require a government-issued license.
Although there is little doubt that the Constitution includes economic liberty, rights don’t mean anything unless courts are willing to enforce them. Unfortunately, for generations, the courts—and especially the U.S. Supreme Court—have refused to enforce the constitutional right to earn an honest living free from unreasonable government interference. The rise of government-enforced cartels in hundreds of industries across the country is a direct result of the widespread failure of judges to protect constitutional rights.

But that is beginning to change. There are encouraging signs that, at least in some courts, meaningful judicial engagement is making headway against reflexive judicial deference to legislatures. Cases by the Institute for Justice have shown that courts can apply the Constitution in a principled manner to strike down laws that infringe economic liberty without encroaching on the legitimate prerogatives of the legislature.

In fact, for the first time since the New Deal, economic liberty is a hot constitutional question. The Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) and Ninth Circuit (Alaska, Hawaii, Washington, Montana, Idaho, California, Nevada, Arizona and California) have held that the government cannot restrict the right to earn an honest living just to make private interests richer. ¹⁰ The Tenth Circuit disagrees, ruling that it is constitutional for legislatures to engage in their “national pastime” of handing our economic privileges to favored groups. ¹¹ Other circuits, including the Fifth Circuit (Texas, Louisiana and Mississippi) where this case has been brought, are thus far silent on the question.

The Supreme Court is eventually going to have to resolve this disagreement among the federal appellate courts and this case is an ideal vehicle for doing so. The facts here are simple: A casket is just a box and the monks are being prevented from selling their wares only because licensed funeral directors, who dominate the State Board and control funeral industry legislation, are not getting their cut. This case is about the use of public government power for private financial gain.

It would be especially appropriate for the Supreme Court to use a New Orleans-area case to begin the long-overdue work of restoring economic liberty through judicial engagement. The demise of economic liberty began almost as soon as it achieved its greatest reach. After the Civil War, emancipated slaves counted economic liberty as among the most crucial of their new civil rights. To protect entrenched white businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens by heavily regulating entry into trades and business. The national government tried to curtail these abuses by enacting the Civil Rights Act of 1866 and the Fourteenth Amendment to the U.S. Constitution, both of which sought to protect the economic liberty of all Americans by forbidding states from abridging the “privileges or immunities” of American citizenship.

But in the 1873 Slaughter-House Cases, which concerned a government-created butchers’ cartel in New Orleans, a sharply divided U.S. Supreme Court read the Privileges or Immunities Clause out of the U.S. Constitution by a mere 5-4 vote. That decision gave states carte blanche to enact shameful Jim Crow-era laws that restricted economic opportunities for black Americans. In addition to oppressing their black citizens, the states also used their now-unchecked regulatory power to protect all sorts of entrenched interests. Relying on the line of cases going back through the New Deal to the Slaughter-House Cases, states continue to erect arbitrary barriers to entry into many trades and professions. As is the case with Louisiana’s restrictions on who can sell funeral merchandise, these onerous laws often far exceed those necessary to protect public health and safety, thus revealing their real purpose: the protection of cartels.

The Plaintiffs

The Plaintiffs are Saint Joseph Abbey and Deacon Mark Coudrain. Deacon Mark was ordained as a deacon for the Archdiocese of New Orleans in 2006, following in the footsteps of his father. In 2007, he left his job as CEO of WLAE-TV, the New Orleans public television station, to work full time for the Abbey as the director of their Christian Life Center. He also returned to his lifelong love of woodworking and began to build caskets in the monastery woodshop.

The Defendants

The Defendants are the members of the Louisiana State Board of Embalmers and Funeral Directors. They are sued in their official capacities.

The Litigation Team

The litigation team consists of Institute senior attorneys Scott Bullock and Jeff Rowes. They will be assisted by local counsel Evans Schmidt of Koch & Schmidt in New Orleans.

Founded in 1991, the Institute for Justice has vindicated the rights of entrepreneurs nationwide in their fights against arbitrary government regulation. Among IJ’s economic liberty victories are:

Chauvin v. Strain: In 2010, as a result of IJ’s civil rights lawsuit, the Louisiana Legislature abolished the demonstration portion of the florist licensing exam, while leaving in place (for now) a short written exam that presents no serious obstacle to would-be florists. The bill passed both houses of the Louisiana legislature by wide margins.

Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an irrational ordinance that prohibited booksellers in New Orleans from selling books on city sidewalks without a government-issued permit.

Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers. Vintner entrepreneurs Juanita Swedenburg and David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York. The case raised issues of Internet commerce, free trade among the states and regulations that hamper small businesses and the consumers they seek to serve.

Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—In March 2005, after being sued by the Institute for Justice Washington Chapter just seven months earlier, state bureaucrats exempted hairbraiders from discriminatory cosmetology licensing requirements.

Armstrong v. Lunsford—The Institute for Justice opened the hairbraiding profession in Mississippi in 2005 when the state Legislature responded to this lawsuit, filed in federal court in 2004, by allowing IJ’s clients to continue their entrepreneurship without obtaining a needless government license.

Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.

Clutter v. Transportation Services Authority—In 2001, the Institute for Justice defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.

Cornwell v. California Board of Barbering and Cosmetology—In 1999, the Institute for Justice defeated California’s arbitrary cosmetology licensing requirement for African hairbraiders.

Ricketts v. City of New York—The Institute for Justice successfully defended commuter van entrepreneurs in 1999 in a fight against the government bus monopoly that would not allow any commuter van entrepreneurs to provide service to consumers in underserved metropolitan neighborhoods in New York City.

Jones v. Temmer—In 1995, the Institute for Justice helped three entrepreneurs overcome Colorado’s anti-competitive taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ used this victory to help break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

Uqdah v. D.C. Board of Cosmetology—In 1993, the work of the Institute for Justice in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders. This case demonstrated that there is no one who is so removed from the need to earn money that economic liberty doesn’t matter to them.