Wiley Rein LLP


Wiley Rein Helps Monks in Fight to Sell Handmade Caskets: Fifth Circuit Signals Rejection of Economic Protectionism as Legitimate Governmental Interest

November 8, 2012

The U.S. Court of Appeals for the Fifth Circuit has signaled that it would strike down the Louisiana State Board of Embalmers and Funeral Directors’ rules that grant funeral homes the exclusive right to sell caskets intrastate, stating that “[n]either precedent nor broad principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose.” How far the court ultimately goes will depend on the answer to a state-law question the court has certified to the Louisiana Supreme Court. The case is St. Joseph Abbey v. Castille, -- F.3d --, No. 11-30756 (5th Cir. Oct. 23, 2012), and the opinion may be found here.

In 2010, the Benedictine monks of St. Joseph Abbey challenged the State Board’s rules as an unconstitutional restriction on their ability to engage in economic activity. The monks, who sought to support their operations through the sale of handcrafted wooden caskets, had been ordered by the Board not to sell caskets to the public. After twice attempting to change the law through legislative process, the monks filed suit in federal district court challenging the constitutionality of the restrictions. Agreeing with the monks, the district court held the regulation unconstitutional both on its face and as applied to the monks.

On appeal, a panel of the Fifth Circuit unanimously concluded that there are substantial federal constitutional questions. A majority of the panel described at length their “doubts about the constitutionality of the State Board’s regulation of intrastate casket sales.” At the threshold, the majority rejected the Board’s argument that “pure economic protectionism of a discrete industry is an exercise of a valid state interest.” Disagreeing with a Tenth Circuit opinion that upheld a similar law, the panel majority noted that no Supreme Court cases stand for the proposition that favoring one particular industry is a legitimate state interest.

Turning to the Board’s other (post hoc) rationales, the majority expressed extreme skepticism. With respect to the Board’s asserted interest in consumer protection, the majority found that justification “betrayed by the undisputed facts as pretextual.” In their view, the “grant of an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitive practices.” With respect to the Board’s claimed interest in public health and safety, the majority found that this supposed rationale “elides the realities of Louisiana’s regulation of caskets and burials,” noting in particular that Louisiana does not even require that a casket be used for burial.

Wiley Rein Appellate Group partner Elbert Lin and associate Addison Draper filed a brief amici curiae on behalf of the International Cemetery, Cremation and Funeral Association, a voluntary trade association, and the Funeral Consumers Alliance, a nonprofit consumer advocacy group. In support of the Abbey, amici argued that the challenged rules are anti-competitive, anti-consumer, and unsupported by any consumer-protection justification. Among other things, the brief argued that Louisiana’s general consumer protection laws already provided protection from abuses and highlighted that the Federal Trade Commission expressly had decided not to extend its regulation of the funeral industry to cover third-party casket retailers, such as the monks. Both points were noted favorably in the Fifth Circuit opinion.

Ultimately, the full panel agreed that the challenged rules could possibly be construed not to apply to the monks, which would allow the Fifth Circuit to simply find that the Board had overstepped its authority and avoid striking down the rules as unconstitutional. The Court has certified this question regarding the possible reading of the rules to the Louisiana Supreme Court.

For more information, please contact M. Addison Dent Draper at 202.719.7574 or adraper@wileyrein.com.






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