APPEALS FROM THE GRAVE

Do not worry, this post is not as ghoulish as its title might imply.  But it does involve caskets.  To be precise, it involves a group of monks that the state of Louisiana wanted to prevent from selling caskets.  Judge Higginbotham, speaking for the federal Fifth Circuit Court of Appeals (whose area of responsibility includes Louisiana) explains how the case came before the court:

“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.”

The Abbey thus started selling caskets and did so at prices significantly lower than funeral homes.   But there came the problem.  The state of Louisiana has a law that forbids anyone other than a funeral home from selling caskets.

The state has a fairly low hurdle to clear to make its law stick. It only needs a rational basis for its policy.  But it did not try very hard.  It contented itself with asserting that economic protectionism of a discrete industry was a sufficient state interest.  In other words, if the state’s elected officials thought it was in the state’s interest to protect one industry – is this case, funeral homes, that was good enough.  When the court disagreed, rejecting that kind of favoritism as hurtful to consumers and not a legitimate state interest, the state invented other rationales that the court rejected as pure fantasy.  Why do we care?

Because a different Circuit ruled that a similar regulation in Oklahoma was valid, buying the argument that protecting a specific industry could constitute a rational protection of some state interests.  This might then end up in the Supreme Court. [UPDATE: it did.]

Why do we care if it does? Because we live in an increasingly regulated environment and  economy.  How far those regulations may go, how completely a state may regulate economic life within the state consistent with the Constitution, are becoming ever more pressing questions.  Louisiana monks may spur the High Court to take the first stab at that question in a long time.