Federal district and appeals courts struck down a regulation that only state-licensed funeral directors may sell coffins in Louisiana, saying it existed only to protect special interests and lacked any reasonable legal grounds such as protecting consumers or public health.

Such “economic protectionism” is not only legitimate but so pervasive “that it may be practically impossible to avoid it,” attorneys for the Louisiana State Board of Embalmers and Funeral Directors wrote in their request.

“The idea that courts — federal or state — could change this perhaps regrettable truth is just unworkable,” they wrote.

Scott Bullock of the nonprofit Institute for Justice, which represents the monks of St. Joseph Abbey, laughed at that contention.

“That’s just an amazing statement — to say that courts should not interfere in the slightest, even if the apparatus of government is used — and this is the important point — solely to enrich private special interests at the expense of other competitors and consumers,” said Bullock, whose organization describes itself as “a merry band of libertarian litigators.”

He called it a shocking statement for any government body. “But it would be even more shocking if the Supreme Court was to hold that,” he said.

Although the Supreme Court accepts only about 100 to 150 of the more than 7,000 cases it is asked to consider each year, attorneys for the Institute for Justice have said this one has a good chance of being in that number.

Federal appeals courts are strongly divided and the high court has never ruled on economic protectionism, Bullock said. “This is just a great unanswered question in the Constitution right now.”

The justices refused in 2005 to consider a similar lawsuit won by Oklahoma’s funeral directors. Judges cannot second-guess economic restrictions passed by state legislatures because those laws have a stated purpose of protecting consumers, the 10th U.S. Circuit Court of Appeals ruled in that case.

In 2002, the 6th U.S. Circuit Court of Appeals struck down a similar Tennessee law, saying the state licensing requirements created an unnecessary barrier to other retailers.

The funeral directors’ attorneys said their arguments are supported by a 1955 Supreme Court ruling that Oklahoma could require someone who wanted an existing glasses lens fitted into a new frame to get a new prescription and a 1963 decision to uphold a Kansas law limiting the business of debt adjustment to attorneys. The high court said in those cases that judges could not substitute its own opinion of a law’s wisdom or whether it supported the public good for a legislature’s opinion on those matters.

Bullock said both of those rulings held that economic law must be rational.

The funeral directors also took issue, in passing, with the 5th Circuit’s statement that the monks’ caskets were less expensive than competitors’. The monks stipulated at trial that theirs were two to three times more expensive than similar caskets.

Bullock said, “What they were talking about there is whether you could get a wooden casket that was basically plywood at a funeral home for a cheaper amount. … This is a handmade wooden casket and … the prices are comparable to other monasteries that sell these type of caskets.”  

The monks’ two models cost $1,500, with a flat lid, and $2,000 for a coffin with a beveled lid and hand-carved wooden handles.

The first few pages of an online search turned up beveled caskets costing $1,800 for solid pine to $741 for cherrywood veneer — though the low price was shown as a 9-hour sale. “LIST PRICE: $1,249.95,” the website stated. “TOMORROW’S PRICE: $1,119.95.”