Monks beat casket licensing by exposing its protectionism

The thirty-eight monks of Saint Joseph Abbey supported themselves from the abbey's timberland until Hurricane Katrina destroyed it. Looking for other income, they turned to something they had done for generations anyway: making simple wooden caskets to bury their own. Public interest had grown after two bishops were buried in abbey caskets in the 1990s, so in 2007 the monks began selling cypress caskets to the public.

In December 2007 the Louisiana State Board of Embalmers and Funeral Directors ordered them to stop. Under the state's licensing act, caskets could be retailed intrastate only by a licensed funeral director at a licensed funeral establishment. The Abbey was neither, and it does not conduct funerals — its monks take part only as pastors.

The Abbey sued for a declaratory judgment rather than seeking a licence, and the case turned on what the licensing rule was actually for. The State Board argued that confining casket sales to funeral homes was rationally related to regulating the funeral profession, and — citing the Tenth Circuit's decision in Powers v. Harris — argued in the alternative that protecting an established industry is itself a legitimate state interest. What sank the first argument was the surrounding law.

They sued for a declaratory judgment, using the state's own regulatory silence to show the rule served only protectionism, which rational-basis review cannot justify.

Rational-basis review is easy to satisfy, so attacking fairness fails.

The state regulated no aspect of caskets, so the rule had no public purpose.

The only remaining purpose was protecting licensed funeral homes, which is not legitimate.

The Fifth Circuit agreed, creating a circuit split and freeing the monks.

When a rule claims to protect the public, audit what the regulator leaves unregulated; if the hazard is untouched except where incumbents profit, that asymmetry is your argument.

The Fifth Circuit affirmed for the Abbey in 2013, holding that shielding an industry from competition is not a legitimate state interest. The ruling became the leading citation for the proposition that naked economic protectionism fails rational-basis review, is taught alongside the contrary Tenth Circuit rule as a live circuit split, and is a standard reference in the wider argument over occupational licensing — the Federal Trade Commission had filed an amicus brief noting that restraints on third-party casket sales do not serve the consumer interests its own Funeral Rule protects.