Opinion

Wesley Hottot: A victory for funeral freedom

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Opinion,Op-Eds

Anyone who has arranged a funeral for a loved one knows they aren't cheap. A landmark decision from the 5th U.S. Circuit Court of Appeals on March 20 helps explain why: Regulatory boards controlled by special interests intentionally drive up the price of caskets to help themselves and their friends in the funeral industry make more money.

Is this kind of anti-consumer regulation really constitutional? Surprisingly, it depends on where you live.

In 2002, the 6th U.S. Circuit Court of Appeals -- which covers Michigan, Ohio, Kentucky and Tennessee -- struck down a law requiring casket sellers to become licensed funeral directors because there was no reason for the law other than protecting funeral directors from price competition for caskets.

Two years later, the 10th Circuit -- which covers Wyoming, Utah, New Mexico, Colorado, Kansas and Oklahoma -- looked at an identical casket law and reached the opposite conclusion, holding that "[w]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments."

This constitutional conflict has festered for almost a decade, with consumers paying more for caskets than they should. Thankfully, a bit of divine intervention came recently in the form of the Benedictine monks of St. Joseph Abbey near Covington, La.

For more than a century, the monks have supported themselves through the labor of their own hands. After Hurricane Katrina destroyed much of their timber stock, the monks had an inspiration -- they would start making the caskets that they built for other monks available to the general public. Customers loved the idea because a simple monastic casket is a dignified and inexpensive alternative to the wildly expensive caskets sold by funeral homes.

But when Louisiana's funeral directors found out, they complained, and their friends in the state government sprang into action. The monks -- who are not funeral directors -- were threatened with jail time if they didn't stop selling caskets.

The monks sued with the help of the Institute for Justice, a nonprofit civil liberties law firm dedicated to economic liberty and other vital constitutional rights. On March 20, after more than two years of litigation, a three-judge panel of the 5th Circuit unanimously held that the monks have every right to sell their caskets to the public. The court sided with the 6th Circuit and held that unnecessary licensing is "protection of the rulemakers' pockets," hurts consumers and is unconstitutional.

Despite this victory, protectionist laws like Louisiana's ban on unlicensed casket sales remain a nationwide problem. Every day, new state and local regulations are making it harder for you to find a job, launch a business or start a career -- not because the government thinks your safety is threatened, but because someone else wants to keep you from competing with them fair and square.

In the 1950s, only one in 20 U.S. workers needed the government's permission to pursue their chosen occupation. Today, that figure is almost one in three. These regulations not only drive up prices for consumers, they disproportionately harm people in low- and middle-income occupations, such as locksmiths, cosmetologists and taxi drivers, as shown in the Institute for Justice's recent report "License to Work: A National Study of Burdens from Occupational Licensing."

The monks' victory means the important issue of whether this sort of economic protectionism is a legitimate use of government power could soon be headed to the Supreme Court. If the high court does take the case, it should take a firm position against anti-consumer laws designed to line the pockets of the politically powerful.

Until that day comes, the hard-working monks of St. Joseph Abbey remind us that economic liberty plays a crucial role in our lives and that this essential freedom is constantly under threat. The monks' victory reminds us, also, that the federal courts play an indispensable role in protecting the American Dream.

Wesley Hottot is an attorney with the Institute for Justice. The institute's License to Work report is available at ij.org/licensetowork.

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