Board of Embalmers and Funeral Directors. On December 11, 2007—before the Abbey had sold even one casket—the state board sent the Abbey a letter stating that selling caskets violated the law and would subject the monks to crippling fines, jail time, and a possible lawsuit by the state. Unbeknownst to the monks, Louisiana law made it a crime to sell funeral merchandise, including caskets, without a funeral director’s license. To sell caskets legally, the monks would have to apprentice at a licensed funeral home for one year and take a funeral-industry test. They would also have to convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming human remains.
The monks were flummoxed: Why would a funeral director’s license be required to sell an empty wooden box? There were no health and safety concerns, and a casket is not even a requirement for burial in Louisiana. A human body is allowed be placed directly in the ground, buried in a shroud, or entombed in a cardboard casket.
In fact, from its origins, Louisiana’s casket law had nothing to do with protecting the public; it served only to protect the interests of the bottleneckers. The Louisiana Board of Embalmers and Funeral Directors was created in 1914, ostensibly to protect against infectious or communicable diseases. But, in yet another example of regulatory capture, the board quickly came under the control of the industry it was charged to oversee. Today, all but one of its ten members are funeral directors. One of the board’s most important achievements came in the 1960s, when Louisiana—like Tennessee would do the following decade—made it a crime to sell funeral merchandise without a funeral director’s license.86 With this law in place, the funeral-director bottleneckers possessed the necessary power to punish anyone who posed even the smallest competitive threat to their sheltered market, including a small band of modest monks producing simple wooden caskets.
In the face of the cease-and-desist order, the monks continued selling their caskets. Following the December 2007 letter, the funeral board swiftly launched an investigation—spurred on by an official complaint lodged by a funeral home director. The board obtained sworn statements from funeral homes that had received the Abbey’s caskets and from the board’s investigator, Jude Daigle, who spotted the Abbey’s truck at a funeral home and helped Deacon Coudrain unload a casket. On January 30, 2008, the board questioned Abbot Brown, concluded the Abbey was violating the law by selling its caskets, and once again threatened him with penalties of between $500 and $2,500 per violation—the monks had only sold sixty caskets at that point—and 180 days in jail.87
The Abbey disagreed with the board’s legal conclusions and stated that it intended to try to change the law. Nonconfrontational by nature, the monks assumed the board’s conclusion was essentially a misunderstanding that could be cleared up through negotiation or, if the board was simply enforcing a legal technicality, with a simple revision of the law. Made up of mostly licensed funeral directors, the board had no incentive to compromise and remained completely intractable. So, in what amounted to an act of civil disobedience, in the face of what they believed to be an injustice, the monks continued to sell their caskets—though without advertising and only to those who requested them—while pursuing change through the legislature.88 It was not an easy decision. As Abbot Brown, a soft-spoken man in his midfifties, explained,
I was concerned that it would disturb the peace of the monastery by getting involved in something somewhat controversial, adversarial, but it hasn’t. . . . If you study monastic history, there were often conflicts between monks and civil authorities.89
To seek justice, the monks first went to their local state representative Scott Simon, who agreed in May 2008 to introduce a bill amending the law through the Commerce Committee. Deacon Coudrain and Abbot Brown attended the committee hearing in favor of the bill, while the funeral-industry lobbyists opposed it, with eleven funeral directors there to speak against it. In rambling testimony, funeral directors asserted that their casket monopoly was necessitated by their supposedly unique and specialized knowledge about the complexities of preparing bodies for burial and burying them in Louisiana. But when a committee member asked a different question, about whether someone could buy a casket anywhere and have it shipped to a funeral home in Louisiana for use in a burial, a representative of the Louisiana Funeral Directors Association admitted that this was indeed the case, completely undermining the bottleneckers’ other arguments about burials. Nevertheless, the bill was killed in committee. “I learned that funeral directors have the last word in life, and in the legislature,” Representative Simon said.90
The Abbey pursued legislative reform again in spring 2010. This time, state senator Francis Thompson drafted a bill to exempt the Abbey and other nonprofit casket sellers from needing a funeral director’s license to sell caskets. But, once again, the funeral industry opposed the bill and it never emerged from committee. Along the way, the Louisiana Funeral Directors Association attempted to placate the monks by offering to house Abbey caskets in various funeral homes free of charge. But having their caskets displayed in funeral homes alongside other manufacturers’ products would not allow the monks to interact directly with their customers, so they declined the offer, citing their belief that contact with customers was an integral part of their service.91 Moreover, as Abbot Brown observed, “It became clear that we were fighting not only for ourselves but for other people like us who encounter these kinds of regulations and keep them from going into business or to make an honest living.”92
Unable to achieve a legislative remedy due to the power of the funeral bottleneckers, Saint Joseph Abbey filed a federal lawsuit against the funeral board on August 12, 2010. To protect its monopoly, the board increased its legal budget93 and hired an expensive private attorney to work with the board’s attorney to represent it in court.94 In the trial, the monks argued that they should not be punished for doing something that should not be considered a crime—thereby exercising their right to earn an honest living—particularly when they were being punished for no other purpose than to protect the private financial interests of the funeral-industry cartel. The board responded by asserting a need to maintain a standard of quality in the industry by protecting the public from aggressive sales tactics—by monks!—at a time when consumers were vulnerable. The board further claimed that in some parts of the state many burials are above ground, which it said requires “knowledgeable decisions” about casket sales given Louisiana’s unique situation.
In response, the Abbey’s attorneys from the Institute for Justice reminded the court that the state did not require anyone to be buried in a casket and that under the Funeral Rule funeral directors must accept a casket purchased elsewhere. They pointed out that Louisiana consumers were free to purchase a casket from online retailers or out-of-state casket sellers but not from in-state casket makers.95 In short, Louisiana’s ban on the activities of unlicensed, in-state casket sellers did nothing to protect consumers but did insulate the state’s funeral directors from competition.
In July 2011, the monks won a huge victory when US district judge Stanwood Duval ruled the state law unconstitutional, saying, “The sole reason for these laws is the economic protection of the funeral industry,” and adding “there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets.”96 The funeral board pressed its case with the federal appeals court in New Orleans the following year. The result, however, was the same: The Fifth US Circuit Court of Appeals rejected the state’s claims, concluding that “neither precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose” and that “the great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation.”97
Still, the funeral board bottleneckers battled on, requesting a review by the US Supreme Court. On October 15, 2013, the justices denied the board’s petition, thus leaving in place the lower court’s ruling and confirming what Abbot Brown had known all along: the monks of Saint Joseph Abbey had committed
