FINAL UPDATE: On October 15, 2013, the Benedictine monks of Saint Joseph Abbey won their final victory over the State of Louisiana and the Louisiana State Board of Embalmers and Funeral Directors. The U.S. Supreme Court rejected the morticians’ petition for certiorari and let stand the monks’ decisive win in the lower federal courts.
Occupational licensing—like all government meddling—continues to prevent more and more Americans from earning an honest living. In the 19th century, few barriers existed to prevent a person from pursuing an occupation. By the early 1950s, about 4.5 percent of occupations required a government-issued license. In 2000, the number of licensed occupations ran from a low of 47 in Kansas, all the way to 178 occupations in California. By 2009, the percentage of American jobs that required the government’s blessing was about 29 percent.
Licensing legislation is sought—not by the consumers it purports to protect—but by the doctors, lawyers and funeral directors that are regulated by it. It’s a racket designed to transfer money to those who gain the legislature’s ear.
So it’s good when—every once in a while—the river runs backward, as in Tuesday’s court decision in St. Joseph Abbey v. Louisiana State Board of Embalmers and Funeral Directors. The U.S. Fifth Circuit Court of Appeals opinion vividly sets up the story:
The thirty-eight monks of St. Joseph Abbey earn their way in a pastoral setting. In years past, the Abbey’s timberland provided a source of income. After Hurricane Katrina destroyed its timber, the Abbey began looking for other revenue sources. For generations the Abbey has made simple wooden caskets to bury its monks. Public interest in the Abbey’s caskets increased after two bishops were buried in Abbey caskets in the 1990s. Seeing potential in this demand, the Abbey invested $200,000 in “St. Joseph Woodworks,” managed by Mark Coudrain, a deacon of the Church and an employee of the Abbey. The business plan was simple. St. Joseph Woodworks offered one product – caskets in two models, “monastic” and “traditional,” priced at $1,500 and $2,000 respectively, significantly lower than those offered by funeral homes.
The reason the monks got into trouble was because they were not government-licensed funeral directors. It seems that casket sales are a profit center for which the directors had secured a monopoly for themselves from the state government. The monks had twice petitioned the legislature to reform the law, but each time the funeral-director lobby mobilized to protect its lucrative monopoly.
The monks finally sued in federal court to strike down the Louisiana law. After a trial in 2011, the district court ruled:
There is no rational basis for the State of Louisiana to require persons who seek to enter into the retailing of caskets to undergo the training and expense necessary to comply with these rules. Simply put there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets. The license has no bearing on the manufacturing and sale of coffins. It appears that the sole reason for these laws is the economic protection of the funeral industry.
On appeal, the Fifth Circuit appeals court covered much of the same ground as the trial court, all but promising to declare the state law unconstitutional. But then the court drew back—with all federal humility—allowing that perhaps the Louisiana law did not really say that the monks couldn’t sell caskets.
So the Fifth Circuit sent the case back to the Louisiana Supreme Court, inviting Louisiana to: 1) swallow its protectionist pride and pretend the law says something other than what it says; or 2) see the law struck down as an unconstitutional, nonsensical and naked transfer of wealth.
The bottom line is that the monks—one way of the other—will continue to support themselves as they turn out their beautiful cypress caskets. Three cheers for the monks of St Joseph Abbey and the Institute for Justice who carried the ball through their long court battle.