A recent death in the family has gotten me thinking about, amongst other things, free enterprise and economic liberty. I know that that is a strange combination but it all stems from a fairly recent legal battle between an abbey of Benedictine monks and the Louisiana Board of Embalmers and Funeral Directors. At the center of the conflict was whether or not the monks had a constitutional right to sell hand-crafted coffins as a way to raise money for the abbey. As the dispute worked its way through the courts two things became clear. First, the monks had a clear, constitutional right to engage in free enterprise and, second, that the state laws put in place to protect the funeral industry were a textbook example of how licensing and regulation often shields businesses from competition under the guise of protecting the public from harm.
The genesis (if you can forgive the biblical pun) of the showdown started just after Hurricane Katrina had devastated much of the gulf coast portion of Louisiana. The Benedictine monks of St. Joseph Abbey near Covington had lost much of their timberland and looked for a new way to supplement their income. For years, like other monastic orders, they had fashioned coffins for the burial needs of their departed brothers. In 2007, the abbey established St Joseph’s Woodworks to sell their hand-made caskets to the public.
No sooner do they get started than the Funeral Directors slap a cease-and-desist letter in their direction citing a state law that only allows caskets to be sold to the public by a state-licensed funeral home. The letter threatened the monks with thousands of dollars in fines and prison sentences up to 180 days for noncompliance.
The monks didn’t take that lying down and, aided pro bono by the Institute for Justice, sued in Federal court to have the law overturned on the grounds that it was an unconstitutional statute designed to protect "cartel for the sale of caskets within Louisiana".
U.S. District Judge Stanwood Duval agreed with the monks and ruled the law unconstitutional. He noted in his ruling that the coffins sold by the monks were significantly less expensive than those sold at funeral homes and that
To be sure, Louisiana does not regulate the use of a casket, container, or other enclosure for the burial remains; has no requirements for the construction or design of caskets; and does not require that caskets be sealed. Individuals may construct their own caskets for funerals in Louisiana or purchase caskets from out-of-state suppliers via the internet. Indeed, no Louisiana law even requires a person to be buried in a casket.
The Louisiana Board of Embalmers and Funeral Directors took their case to the 5th Circuit Court of Appeals but to no avail. The appeals court upheld Duval’s ruling noting in addition that regulation is aimed at restricting intrastate competition and that
There are no other strictures over their quality or use. The district court found the state's scheme to be the last of its kind in the nation. The state board had never succeeded in any enforcement actions against a third party seller prior to its effort to halt the abbey's consumer sales.
The matter finally came to closure when the Supreme Court refused to hear the case, leaving the finding of the unconstitutional nature of the law in place.
For those unwilling to parse some of the legal wordsmithing in the previous two quotes a simple summary does just as well. The courts found that the state law was not concerned with protecting the public from shoddy coffins. Indeed, no coffin seems to be required in Louisiana – just dig a hole and plop the body in. But the law was concerned with protecting funeral homes from in-state competition from a bunch of monastic hooligans.
Apparently coffin business is quite a market – I suppose because no one is particularly inclined to haggle when dealing with the death of a loved one. I was curious how much caskets cost and one quick trip to internet brought me to Best Price Caskets. Several interesting admonitions sit top and center on their website including
Do Not Tell The Funeral Home About Purchasing Our Casket Before You Get Their Itemized Funeral Price List. Call Us Before Talking to ANY Funeral Home, Because Everything You Tell the Funeral Home Affects Your Funeral Pricing. We will tell you what to say.
and
It Is Federal Law: Funeral Homes MUST receive our caskets and NOT charge you any extra fees! This cuts your funeral cost by up to 80%. We supply funeral homes and we also sell directly to you! Same Price. Buy Direct.
and this curious image
All the monks were trying to do was to engage their economic freedom and supply a demanded good in return for monetary compensation. They were filling a need at a reasonable price and that competition was feared by the entrenched businesses that lobbied for the state law that protected them.
So the final question to ask ourselves is this: what other industries, through the mechanism and licensing and regulation, are pretending to protect us while really protecting themselves? Look around, I think you’ll find more than you might, at first, expect.