St Joseph Abbey v Castille (United States Court of Appeal, 5 th
Circuit, 20 March 2013)
St Joseph Abbey (the Abbey) is an abbey of the Benedictine Order of the Catholic Church in
Louisiana, USA. The Abbey challenged rules granting funeral homes in Louisiana an exclusive right to sell caskets as unconstitutional. The Abbey was successful in the District Court of Louisiana, which found that the rules in question denied equal protection and due process of law. The case then moved to the US Court of Appeal.
The case arose because of the monks’ traditional use of burial caskets (coffins) made from their own timber in their own workshop. The caskets attained a measure of popularity after being used for the burial of two bishops, and being given publicity in the media. The caskets were sold for either $1500
(monastic model) or $2000 (traditional model), an amount considerably lower than the amounts charged for caskets by registered funeral homes in Louisiana.
Hurricane Katrina caused the destruction of the A bbey’s timber stocks. However, the Abbey continued to sell caskets, but in doing so ran into a plethora of regulatory burdens. These included:
 intrastate sales of caskets to the public may be made only by a state-licensed funeral director and only at a state-licensed funeral home;
 a casket retailer must become a licensed funeral establishment. This requires building a
‘layout parlor’ for thirty people, a display room for six caskets, an arrangement room, and embalming facilities;
 the establishment must employ a full-time funeral director. A funeral director must have a high school diploma or GED, pass thirty credit hours at an accredited college, and complete a onetime apprenticeship;

The apprenticeship must consist of full-time empl oyment and be the apprentice's ‘principal occupation ’;

A funeral director must also pass a test administered by the International Conference of
Funeral Examining Boards. The exam does not test Louisiana law or burial practices;

In Louisiana, funeral directors are the only individuals authorised by law to provide funeral services.
The District Court found the State's scheme to be the last of its kind in the nation. The State Board of
Embalmers and Funeral Directors (the State Board) had never succeeded in any enforcement action against a third party seller prior to its effort to halt the Abbey's consumer sales.
The Court of Appeal identified that there were in fact no rules relating to caskets in Louisiana. The state did not regulate the use of a casket, container, or other enclosure for the burial remains; had no requirements for the construction or design of caskets; and did not require that caskets be sealed.
Individuals could construct their own caskets for funerals in Louisiana or purchase caskets from outof-state suppliers via the internet. Indeed, there was no Louisiana law that even required a person to be buried in a casket.
The Court of Appeal then reviewed the Federal law regulating the funeral industry, referred to as the
Funeral Rule. This Rule was developed by the Federal Trade Commission (FTC) in the early 1980s to overcome misleading and deceptive practices in the funeral industry in the US. One particular aspect of the Funeral Rule was that it was supposed to encourage competition in the industry. After the
Funeral Rule forced funeral homes to disclose actual casket prices, the significant mark-ups charged by the funeral homes became apparent to the public, and a market for third-party casket sales emerged. Funeral directors responded to this growing competition by refusing to use third-party caske ts unless consumers paid large ‘casket-handling’ fees. The FTC responded by amending the
Funeral Rule to ban casket-handling fees.

In Louisiana, although the Funeral Rule applied, consumers were unable to buy third-party caskets within the state because of the state rules. Moreover, funeral homes charged large fees (around
$3000 –$4000) for advice on the funeral, including casket choice (this fee did not include the casket itself). This was a ‘non-declinable’ fee which was charged whether the casket was one from the funeral home, one from inter-state bought on the internet, or a home-made casket.
In December 2007, the State Board banned the Abbey from selling its caskets. It then initiated a formal complaint against the Abbey which ultimately led to this appeal. In 2008 and 2010, the Abbey petitioned the legislature to change the law to allow non-profit charitable groups such as the Abbey to sell caskets. Although two bills to amend the law were drafted, it appears neither made it out of the committee stage. No member of the public had opposed the bills.
The Court of Appeal reviewed the District Court’s decision, and agreed that it was doubtful that the
S tate’s rules under review were constitutional. The State Board argued first on a consumer protection basis. In this respect, the Court of Appeal said (at IV B1):
Moreover, like the district court and consistent with its findings, we find it doubtful that the challenged law is rationally related to policing deceptive sales tactics. In declining to expand the Funeral Rule's scope to cover third-party sellers of caskets and urns, the FTC found ‘there is insufficient evidence that third-party sellers of funeral goods are engaged in widespread unfair or deceptive acts or practices.
’ In fact, the Commission found the record ‘bereft of evidence indicating significant consumer injury caused by third-party sellers ’ and recognized that third-party sellers do not have the same incentive as funeral home sellers to engage in deceptive sales tactics.
The State Board’s second ground was public health and safety. The Court of Appeal could find no rationality in this argument, given that Louisiana law did not even require a casket for burial. The
Court said (at IV B2):
Rather, this purported rationale for the challenged law elides the realities of Louisiana's regulation of caskets and burials and causes us to doubt its rationality. That Louisiana does not even require a casket for burial, does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral directors to have any special expertise in caskets makes us doubt that a relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments.
The real constitutional issue in the case was the importance of giving deference to state economic regulation. Historically, this has been somethin g of a ‘sacred cow’ in the US. However, the Court of
Appeal was not impressed with arguments on this point by the respondents (at V):
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. We insist that Louisiana's rules not be irrational – the outer-most limits of due process and equal protection – as Justice Harlan put it, the inquiry is whether ‘[the] measure bears a rational relation to a constitutionally permissible objective ’.
The Court could see no valid rationale in the economic protection of a ‘pet industry’ in any state of the
US. This was not a legitimate government purpose.
The Court of Appeal went on to consider the relevant state law. It found that the state law relating to the exa ct extent of the State Board’s authority to control the funeral industry was in need of review, saying (at V):

Resolution of the statutory uncertainty surrounding the State Board's authority must come at the hand of the Louisiana Supreme Court, whose determination of state law is supreme.
When constitutional avoidance requires interpretation of a state statute, federalism concerns mandate ‘that state courts provide the authoritative adjudication of questions of state law’ and thus ‘a federal court should await a definitive construction by a state court.’ Therefore, we conclude that this appeal presents a critical issue of Louisiana law which is appropriate for resolution by certification to the Supreme Court of Louisiana and, in the interest of federalism and constitutional avoidance, defer final decision in this matter to allow the Louisiana
Supreme Court to rule on the statutory uncertainty.
Therefore, the Court of Appeal certified the case on its own motion for further consideration by the
Supreme Court of Louisiana, under Rule 12 of the Rules of the Louisiana Supreme Court. The Court of Appeal did this in the interests of federalism, saying that (at V) ‘it is not within our province to here decide state law’. Thus, it was a matter for the Louisiana Supreme Court to reconsider the state law on the power of the State Board. The Court of Appeal remitted the following question to the Louisiana
Supreme Court for decision:
Whether Louisiana law furnishes the Louisiana State Board of Embalmers and Funeral
Directors with authority to regulate casket sales when made by a retailer who does not provide any other funeral services.
The case may be viewed at: http://caselaw.findlaw.com/us-5th-circuit/1614637.html
Implications of this case
This case outcome allows the monks to continue to sell their hand-made wooden caskets, despite state law. The constitutional issue of the untouchability of economic regulation by a state was unsuccessful for the respondents, as were their other arguments based on consumer protection and public health and safety. Moreover, the case remits to the state courts the question of necessary revision of state law on the issue.