October 25, 2012 10:38AM

A Nail in the Coffin of Louisiana’s Casket‐​Sales Cartel

It’s always nice to hear about victories for liberty out of my old stomping grounds, the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi).

Yesterday, that court helped the monks of Saint Joseph Abbey put a nail in the coffin of Louisiana’s restrictive casket‐​sales law in a blistering opinion stating that the five‐​year campaign of the Louisiana State Board of Embalmers and Funeral Directors to prevent the monks from selling their handmade caskets was either — get this — unconstitutional or unauthorized by Louisiana law.

The Fifth Circuit rejected the state board’s main constitutional argument that industry insiders and government may team up to pass laws that suppress competition and clobber consumers: “Neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose.”

The court appeared equally engaged — rather than activist, restrained, or anything else that’s not applying law to facts — when it refused to accept the board’s argument that judges in economic liberty cases are supposed to rubber stamp whatever the government does: “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 naked transfers of wealth.”

While the decision was a big win for the monks and economic freedom, the federal appellate court took the unusual step of asking the Louisiana Supreme Court to weigh in on whether the state funeral law actually grants the state board the power to stop casket retailing. If the answer is yes, then the law is unconstitutional. If the answer is no, then the state board has been acting lawlessly against the monks and other entrepreneurs for years.

The only question left is how the government loses, not if: it’s a lose‐​lose proposition for the purveyors of crony capitalism. And if this back‐​and‐​forth between the Louisiana Supreme Court and the Fifth Circuit results in the latter striking down the challenged law as unconstitutional — which seems likely — this case could end up in the U.S. Supreme Court. That result would open up the possibility of a nationally binding ruling against economic protectionism.

Note that the Institute for Justice represents the monks. Congrats to IJ for this amazing win for the right to earn an honest living!