The Right Opinion

A Casket Cartel's Comeuppance?

By George Will · Nov. 15, 2012

WASHINGTON – Shortly before 123 million voters picked a president, 38 Louisiana monks moved the judiciary toward a decision that could change American governance more than most presidents do. The monks' cypress caskets could catalyze a rebirth of judicial respect for Americans' unenumerated rights, aka privileges or immunities.

In 2005, Hurricane Katrina damaged the trees that the monks of Saint Joseph Abbey near Covington, La., harvested to support their religious life. So they decided to market the sort of simple caskets in which the abbey has long buried its dead. Monasteries in other states sell caskets, but these Louisiana Benedictines were embarking on a career in crime.

In 1914, Louisiana created the State Board of Embalmers and Funeral Directors. Its supposed purpose is to combat “infectious or communicable diseases,” but it has become yet another example of “regulatory capture,” controlled by the funeral industry it ostensibly regulates. Nine of its 10 current members are funeral directors.

In the 1960s, Louisiana made it a crime to sell “funeral merchandise” without a funeral director's license. To get one, the monks would have to stop being monks: They would have to earn 30 hours of college credit and apprentice for a year at a licensed funeral home to acquire skills they have no intention of using. And their abbey would have to become a “funeral establishment” with a parlor accommodating 30 people, and an embalming facility even though they just want to make rectangular boxes, not handle cadavers.

This law is unadulterated rent-seeking by the funeral directors' casket-selling cartel. The law serves no sanitary purpose: Louisiana does not stipulate casket standards or even require burials to be in caskets. And Louisianans can buy caskets from out of state – from, for example, Amazon.com (it sells everything). A complaint filed against the monks by a funeral director said: “Illegal third-party casket sales place funeral homes in an unfavorable position with families.” That is, the bereaved become angry when forced to buy caskets from the funeral homes' cartel.

In a sense, the monks' troubles began 16 years before their monastery was founded in 1889, across Lake Pontchartrain in New Orleans. In the 1873 Slaughter-House Cases, the U.S. Supreme Court upheld, 5-4, New Orleans' government-created butchers cartel. This effectively expunged this clause from the 14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The court effectively expunged the phrase “privileges or immunities,” construing it so narrowly it disappeared from constitutional law.

Since then, courts have retreated from protection of economic rights – the right to earn a living without arbitrary and irrational government hindrances. Courts have complacently allowed any infringements of those rights for which governments offer any “rational basis” – such as, the supposed good done by conferring economic benefits on favored factions.

In 2002, the 6th U.S. Circuit Court of Appeals, overturning a Tennessee law requiring a license to sell caskets, said the law did not protect the public from harm but protected licensed funeral directors from competition. But in 2004, the 10th Circuit upheld an Oklahoma law forcing online casket retailers to have funeral director's licenses, which in Oklahoma, too, involve expensive and time-consuming requirements. The court acknowledged that the law is protection for funeral directors but said “dishing out special economic benefits” to favored interests is equivalent to “the national pastime” of – and a prerogative of – state and local governments. The 10th Circuit believes this should continue undisturbed by judicial supervision, although it injures the public and abridges individuals' rights.

When circuit courts disagree, the Supreme Court should referee. The monks' lawyers – libertarians from the Institute for Justice – want the court to confront the consequences of its 1873 mistake. So, the monks' problem is much more than just another example of dumb bullying by government in cahoots with powerful interests. Last month, the 5th Circuit rejected Louisiana's casket nonsense, saying “neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose.” And: “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.”

If courts once again become properly impatient with nonsensical explanations, much of what government does will become untenable. It is lovely that revitalized protection of the individual rights of property and striving may owe much to an abbey where all property is communal.

© 2012, Washington Post Writers Group

7 Comments

Tod the tool guy in brooklyn ny said:

Cypress is known for its heartiness and longevity. It can be a tree or a shrub. The Ancient Greeks made urns of it as a burial container for the ashes of war heroes. Plato had his code of laws etched in cypress. Seedlings can be planted directly into swamps or flooded coastal areas (Gerritsen Beach). Sidetrack here; "What do you call a bed for monks? Answer-Monks bunks.

Thursday, November 15, 2012 at 6:42 AM

George Rogers Clark in Ohio said:

This is one of those revelation-level articles. A clarity of one of the things wrong with government is delivered by the example case Mr. Will has presented to us here.

Thanks.

Thursday, November 15, 2012 at 9:17 AM

Gregory in Yakima said:

A regulatory board is necessary but in this case (Assuming Mr. Will has his facts straight), the industry to be regulated has seized regulatory power and is akin to the fox guarding the hen house.

We don't want the remains of those we care about handled irresponsibly, which would certainly be the case without an oversight board. We want/need government to be the honest over seer of the boards. The problem is business encroachment of those who would protect the public.

The corporate foxes are everywhere but where else does expertise and experience such as in the nuclear power industry come from if not from the industry? The problem is never solved once and for all...the solution is eternal vigilance by the public on government to assure honest dealing.

That's not just a Republican problem though they are more brazen in their mutual embrace of business interests above public interests. Mr. Will stops short of admitting political failure of the system, instead he wants to blame the need of regulations as a culprit. Not very honest of him, is it?

Thursday, November 15, 2012 at 11:45 AM

David Thompson in Bellville, TX replied:

"We don't want the remains of those we care about handled irresponsibly, which would certainly be the case without an oversight board."
Why, Mr.(?) Gregory? We deal daily with businesses that are not governed by "an oversight board." It's our responsibility to exercise due diligence to avoid being cheated. If we are anyway, we have the protection of tort law.
If in, of all things, finding an honest businessman to "handle the remains of those we care about," one is unable to exercise due diligence, it is HE, rather than "the remains" that needs an oversight board.
And the state (read: POLITICIANS) as an "over seer" [sic] of the oversight boards? That surely would solve all problems, as it did in the case of the Massachusetts pharmacological company whose products have killed 32 (and counting). That after innumerable failed inspections reported over the last ten years to state (Commonwealth, actually) and federal "over seers."
Don't you dare question Mr. Will's honesty, you little . . .

Thursday, November 15, 2012 at 4:01 PM

Alex in NJ replied:

Exactly.
Gregory's "thinking" is the problem. Only a brain dead socialist assumes people cant make an intelligent decision when spending their own money.
Gregory in his twisted self important thoughts, actually thinks making boxes and nuclear power plants are the same.
You're a idiot Gregory. You really are. The stupid stuff you constantly post is flabbergasting.

Friday, November 16, 2012 at 6:56 AM

Tod the tool guy in brooklyn ny said:

One should never use honesty and government, in the same sentence, unless you are discussing opposites. American empires were built with sweaty labor, God-given wisdom, and consumption of fossil fuel derivatives, like our beautiful gasoline!!!And Courts should be inetrpreting laws--ONLY!!

Friday, November 16, 2012 at 6:12 AM

Alex in NJ said:

PS
Institute for Justice is awesome. They litigate and put real teeth into defending against government abuse.
I actually attended one of their cases here in Trenton, which they won. (Eminent domain abuse at the Jersey shore.)
A donation to them is money well spent!

Friday, November 16, 2012 at 7:03 AM