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June 8, 2012By Peter Finney Jr.
Catholic News Service
NEW ORLEANS (CNS) -- An attorney for the Benedictine monks of St. Joseph Abbey in Covington argued before a three-judge panel of the 5th U.S. Circuit Court of Appeals June 7 that a 1932 Louisiana law requiring anyone selling a casket to be a licensed funeral director is unconstitutional and has no rationale other than "pure economic protectionism."
The monks, who make about 30 cypress caskets a month at their St. Joseph Abbey Woodworks, received a favorable ruling last year from U.S. District Court Judge Stanwood Duval, who struck down the Louisiana law, saying it created an unfair industry monopoly.
But the Louisiana State Board of Embalmers and Funeral Directors, representing the state's licensed funeral homes, appealed the decision, saying the law protected consumers by ensuring that any caskets sold were the right size to fit into Louisiana's oddly shaped, above-ground crypts.
Scott Bullock, an attorney with the Virginia-based Institute for Justice, a nonprofit, public-interest law firm that is representing the monks, said the state law, which requires anyone selling a casket to have a funeral director's license, is "pure economic protectionism" that favors one private class and therefore is unconstitutional.
"It is irrational to require somebody to become a funeral director just to sell a box," Bullock said. "It is irrational to require somebody to give up two years of their life, install an embalming room and turn their abbey into a funeral establishment simply to sell a box. That's our fundamental point."
In one of his questions to David Gruning, attorney for the state funeral board, U.S. Circuit Judge Patrick Higginbotham suggested that the Louisiana law seemed to permit a "classic transfer of wealth ... with no rational basis for it. What's the rational basis that says a person has to open a funeral home in order to sell a casket?"
While the funeral board recognizes that "funeral homes get a benefit" from the state law, Gruning said "the fact that there is an economic benefit is not fatal" to the law's constitutionality.
He said the state has a "legitimate interest in regulating the process of death and burial" and should "protect against the trauma of a wrong-sized casket being delivered."
Benedictine Abbot Justin Brown, who was joined at the hearing by six other Benedictine monks and three religious sisters, said the monks' caskets have been universally praised for their understated beauty and quality.
"I know they have no question when they buy (a casket) from us," Abbot Justin said. "They're buying a quality product and one that we attend to with care and concern."
Abbot Justin said the monks never would consider going through licensing to become a funeral home because that is not the abbey's mission.
"Part of a monastery's mission is to construct and build goods that can be sold to the public to help support the monastery," Abbot Justin said. "That goes back to the time of St. Benedict. We already know of communities of monks who are doing this in other states without any state regulations. We just don't understand why we in Louisiana have to be subject to those kinds of regulations."
A decision from the 5th Circuit is expected in three to six months.
"We're hopeful and prayerful," Abbot Justin said. "The emphasis is on prayerful."
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Finney is executive editor and general manager of the Clarion Herald in New Orleans.
PHOTO: A casket is carried down the steps of the federal courthouse in New Orleans Aug. 12, 21011 after a press conference to announce a lawsuit filed by monks to challenge a Louisiana law that allows only funeral home operators to sell caskets to the public. (CNS photo/Frank J Methe, Clarion Herald)