Are we over-regulated in Louisiana? The case could certainly be made when monks face prosecution for engaging in the selling of caskets without a license. And that’s precisely the case the Institute for Justice is making in a federal lawsuit filed on Thursday at the Eastern District of Louisiana court in New Orleans.

The case involves the monks of St. Joseph’s Abbey in St. Benedict, just outside of Covington, who manufacture and sell plain wooden caskets in order to support their operations. Catholic monasteries usually engage in some form of agriculture or commerce – brewing, timber, farming and so on, so the casket-making operation at St. Joseph’s is anything but uncommon. And of course, there are no safety or public health concerns involved in St. Joseph’s caskets.

But Louisiana has a State Board of Embalmers and Funeral Directors, and they’re enforcing the law – which makes Abbot Justin Brown and Deacon Mark Coudrain into criminals for violating the prohibition against selling “funeral merchandise” without being licensed funeral directors.

Abbot Brown and his monks would have to apprentice at a licensed funeral home for a year, pass a test involving all kinds of skills and knowledge not germane to the basic carpentry required to make caskets and then convert the monastery to a “funeral establishment” by making all kinds of facility “upgrades” like installing embalming equipment. Otherwise, they can’t sell seven-foot long wooden boxes that might hold dead people in them.

It’s ludicrous. But if you’re a licensed funeral director, it works for you – a typical casket can sell for $3,000-$5,000, and even an unfinished wooden casket for over $1,000. A hand-crafted casket – even a plain one – such as the ones St. Joseph’s sells can fetch significantly more. In fact, St. Joseph’s Woodworks, the concern established to handle the sales of the caskets, was created in 2007 in response to demand from the public for caskets after Bishops Stanley Ott of Baton Rouge and Warren Boudreaux of Houma were buried in caskets made by the monks in the 1990’s.

The Clarion-Herald, the newspaper of the Diocese of New Orleans, ran a story about the venture, and while the woodworks’ phone began ringing with potential business, it also caused cranky funeral directors to complain about their new “wildcat” competition. Slightly more than a month from the Nov. 1, 2007 inception of the woodworks, on Dec. 11, 2007, the State Board sent a cease and desist letter to the abbey.

It’s illegal to sell a casket unless you’re a funeral director. What is legal, though, is to bury a body directly. Or to just wrap it in a shroud. Or in a cardboard box. Or in a casket you make yourself. But nobody can sell you one unless they’re part of the petty cartel of funeral directors who have locked out the competition through the legislature. And that cartel is insistent on preserving the status quo and their profit center. As IJ’s release on the lawsuit notes:

This is evident in the first formal complaint against the monastery, which was made to the State Board on January 8, 2008, by Boyd L. Mothe, Jr., the vice president of Mothe Funeral Homes. Mothe stated that: “Illegal third party casket sales place funeral homes in an unfavorable position with families. They are quick to become defensive and threatening when they cannot get what they want.” In other words, the “problem” is that customers get mad when funeral homes refuse to let them use caskets that they bought from someone other than a funeral director.

In the 2008 legislative session, the monks attempted to get relief. They prevailed upon state Rep. Scott Simon to author a change to the Louisiana law on funeral merchandise to resolve the issue – and a mass delegation of the state’s funeral directors showed up at the committee hearing to discuss the subject to lobby against the amendment. It died, not surprisingly, in the House Commerce Committee that year. The monks tried again this year, as state Sen. Francis Thompson authored a bill to exempt nonprofit casket sellers from the licensing requirement. And again the state’s funeral directors descended on the Capitol to lobby against the change. And again the bill died in committee.

In the meantime, Abbot Brown and Deacon Coudrain have been grappling with the state board, which subpoenaed both in March to appear at a hearing which was to take place on Thursday. The subpoena stated that should the Abbey be found guilty of selling funeral merchandise without a license the fines will be between $500 and $2,500 for each violation – with up to 180 days of jail time also possible.

Last week’s lawsuit was the result. The Institute for Justice, which earlier this year filed suit in Louisiana to challenge a similarly ridiculous licensing requirement for florists, has taken up the case and alleges that the requirement is a violation of economic liberty…

The Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment to the U.S. Constitution protect economic liberty—the right to earn an honest living free from arbitrary and irrational government interference.  The Equal Protection Clause of the Fourteenth Amendment forbids the government from making arbitrary distinctions between citizens.

Louisiana is violating the monks’ economic liberty under the Due Process and Privileges or Immunities Clauses because keeping the monks from earning an honest living through casket sales simply to protect the private financial interests of the funeral industry cartel is not a legitimate exercise of government power.  Louisiana is also violating the Equal Protection Clause because there is no legitimate reason to allow licensed funeral directors to sell caskets but prevent other individuals, such as the monks, from doing the very same thing.

In an economic environment which is disadvantageous and getting worse quickly in Louisiana thanks to another unconscionable barrier to honest economic activity, namely the Obama administration’s illegal and nonsensical moratorium on offshore drilling, the state has a responsibility to encourage as much honest commerce as possible. The licensing requirement for funeral merchandise which bars Catholic monks from selling handmade wooden boxes is an example of it doing the opposite. And the lawsuit filed by the monks and the Institute for Justice is an opportunity for the courts to do what the legislature has refused to do – promote economic competition and freedom at the expense of government-created monopolies.

UPDATE: For more on this, the Institute for Justice’s backgrounder can be found here. And CBS News has now gotten into the act on the story, with an article containing some additional facts:

• St. Joseph’s has sold 50-60 caskets so far.
• You can buy a do-it-yourself casketmaking kit on the internet, per IJ’s lawsuit.
• Wal-Mart sells caskets online.
• St. Joseph’s caskets go for $1,500-2,000, which undercuts the price at most funeral homes.