UPDATE 7/23/2011---Chalk up another loss for the bier barons. The US District Court for the Eastern District of Lousiana ruled the state's ban on retail casket sales is unconstitutional. Judge Stanward R. Duval, Jr.'s opinion is particularly damning to the state's claim that the law, which allows only licensed funeral directors with full-service funeral homes to sell caskets, was essential for "public health and safety."
Clearly, [Louisiana’s Embalming and Funeral Directors Act] does not protect consumers from higher prices. Moreover, the fact that any Louisianian can purchase a casket on line without the “aid” of a funeral director results in the only persons being protected are the funeral directors of Louisiana and their coffers. The Act only applies to in-state sales. Other forms of distribution (such as delivery in Louisiana of containers purchased out-of-state, gift and home manufacture for personal use) are not prohibited.
Likewise, it is uncontested that there is no requirement for a person to be buried in a casket, container, or other enclosure for the burial of human remains. There are no requirements in the Act concerning the construction or design of caskets. “Because nothing prevents licensed funeral directors from selling shoddy caskets at high prices, the licensing requirement bears no rational relationship to increasing the quality of burial containers.” Craigmiles, 312 F.3d at 226. Likewise, there is no requirement for caskets to be sealed. Individuals may construct and use their own handmade casket for a funeral in Louisiana. Thus, the Act’s prohibition of non-funeral
directors engaging in retail sales of caskets has no rational basis in the reality of the law.
The Court finds no rational relationship between the Act and “public health and safety.” No evidence was presented to demonstrate that requiring the purchase of caskets from licensed funeral directors aids the public welfare. As previously noted, there is no requirement for a casket to be used in the burial of any individual in Louisiana, so there is no rational relationship between the Act and “health concerns” arising from a decomposing or contagious corpse. Again, these issues are not addressed in the Act. There simply is no rational relationship between health and safety of the public and the construction of and sale of a casket. . .
Read the whole opinion here.
Astonishingly, the state is planning to appeal the decision. It's hard to imagine an appeals court ruling in favor of the funeral cartel after such a solid smacki-down from the District Court.
8.11.2010—A sense of shame or proportion didn't stop the Lousiana Board of Embalmers and Funeral Directors from targeting a monastery, but perhaps a lawsuit from the Institute for Justice will. After the state board tried to levy fines against the St. Joseph Abbey for building and selling coffins without having a funeral director's license, IJ has taken up the monks' cause.
The monks of St. Joseph Abbey in St. Tammany Parish sued Louisiana regulators Thursday, charging the Louisiana Board of Embalmers and Funeral Directors is attempting to maintain a casket cartel through regulation dominated by the funeral industry.
The regulators told the monks not to sell the caskets because
they are not licensed funeral directors.
The 36 monks of the 121-year-old abbey decided a few years ago
to sell caskets with simple white cloth interiors for $1,500 to
$2,000 to support the abbey, which does not receive funding from
the Roman Catholic Church.
About 50 to 60 of the caskets were sold, beginning in 2007,
before the funeral board, acting on a complaint filed by a funeral
home, subpoenaed the order in March and threatened fines, said
lawyer Jeff Rowes of the Arlington, Va.-based Institute for
Justice. The monks tried to get an exemption from the regulations
in 2008 and 2010, but legislators rejected the requests.
Rowes said there is no justification for a state "to regulate
the sale of wooden boxes."
Getting a funeral director's license is no small task. State law
requires at 30 semester hours of college and a one-year
apprenticeship during which the candidate must preside over at
least 25 funerals. A funeral home license requires embalming by a
licensed embalmer. The abbey does not intend to offer that service,
Abbot Justin Brown said making and selling caskets is in keeping
with a 1,500-year tradition of self-support. "For centuries,
Benedictine monks have been entrepreneurs," he said.
The monks of St. Joseph Abbey for years farmed and harvested
wood, a business that sustained heavy damage from Hurricane Katrina
in August 2005, Brown said. The caskets drew public attention at
funerals for monks and two Louisiana bishops, leading to requests
to purchase them. In 2007, the monks converted part of the abbey
into a woodworking shop. Three monks usually work on the caskets.
"All we want to do is sell these simple wood caskets to our
friends and the public," Brown said.
Lousiana—one of only three states that allow only licensed funeral directors to sell caskets—has a sordid history of protecting the entrenched funeral industry from competition at the expense of funeral consumers. See here for earlier posts on LA regulators working to protect the funeral industry from the public.