A legal case that's not so open and shut
By Robert Barnes
(The Washington Post, May 30, 2012)
Not very long after God told some at St. Joseph Abbey that the way out of financial hardship might be selling the
monks' handcrafted caskets, the state of Louisiana arrived with a different message.
It was a cease-and-desist order and came with threats of thousands of dollars in fines and possible criminal prosecution.
"Before we even sold a casket," St. Joseph Abbot Justin Brown said in a recent interview in the picturesque abbey,
which sits opposite New Orleans on Lake Pontchartrain. Now a band of libertarian lawyers is hoping that the honey-colored Louisiana cypress coffins provide the vehicle for a Supreme Court review of government economic regulations.
Brown, a soft-spoken man who is only the fifth leader of a monastery that dates to 1889, said he had not known that in
Louisiana only licensed funeral directors are allowed to sell "funeral merchandise."
That means that St. Joseph Abbey must either give up the casket-selling business or become a licensed funeral establishment, which would require a layout parlor for 30 people, a display area for the coffins, the employment of a licensed
funeral director and an embalming room.
"Really," Brown said. "It's just a big box."
And so, after much prayer and two failed attempts to get the Louisiana legislature to change the law, the monks went to
federal court.
The monks won round one in July, when U.S. District Judge Stanwood R. Duval Jr. ruled Louisiana's restrictions unconstitutional, saying "the sole reason for these laws is the economic protection of the funeral industry."
The Louisiana State Board of Embalmers and Funeral Directors, which has argued that the law protects consumers, has
appealed, and the circuit court in New Orleans will hear the case in early June.
The monks are represented by the Arlington County-based Institute for Justice, which has a knack for picking empathetic, working-class parties - hair braiders, flower arrangers, city tour guides - to personify what it says is its battle
against government regulation that strangles free enterprise.
The group is on a constant watch to find the perfect case to challenge a series of economic regulation decisions nearly
unbroken since the New Deal. Courts must find only that there is a "rational basis" for an act, the most accommodating
standard for government action.
William H. "Chip" Mellor, president of the group, said there are three essential components to a successful suit: "outrageous facts," "evil villains" and "sympathetic clients."
By that measure, the institute might find it hard to top St. Joseph Abbey. Jeff Rowes, one of the lawyers in the case, said
he recently gave this advice to a seminar of law students:
"The number one thing you should do as a public interest litigator is to get monks as your clients in every single case."
'It's God's idea'
Brown, 54, never really thought of going into the casket-building business, although the abbey has built caskets for
years for the monks and others in southeast Louisiana.
But the monks of St. Joseph, part of the Order of Saint Benedict, must support themselves. "Ora et labora" - "prayer and
work" - is the order's motto. Money comes from contributions, the seminary that trains priests, a retreat center and small
enterprises such as a gift shop that features abbey-made Monk Soap in fragrances such as Mayan Gold.
But the abbey lost a large portion of its income in 2005, when Hurricane Katrina destroyed part of the pine timberlands
whose harvest had been profitable.
It was Deacon Mark Coudrain, a woodworking enthusiast asked by his father to build a casket for him, who approached
Brown with the prospect of turning the abbey's occasional coffin construction into a business.
"I really like to say it's God's idea that I didn't want to do," Coudrain said. Eventually, he decided, "there's a need, the
abbey's the perfect place and God was saying, 'You know, I taught you something, why don't you use it?' "
So the monks prayed, voted and bought $200,000 in equipment to establish St. Joseph Woodworks.
And so for some of the 36 monks at St. Joseph - they range in age from 26 to 89 - casket-building has become part of
the daily routine. Prayers and readings start at 6; breakfast is taken in silence at 7. Mass is at 11:15 and lunch at noon.
At a recent meal, the monks scattered along long wooden tables anchored by the requisite Louisiana condiments of Tabasco and Tony Chachere's Creole Seasoning, listening to a fellow monk read from Bill O'Reilly's "Killing Lincoln."
There are more chores in the afternoon - some monks teach at the seminary next door - and the singing of psalms at
5:30. Dinner is at 6, the O'Reilly book replaced by a more religious text.
At the woodshop, several of the monks work with Coudrain and volunteers. Brother Elias Eichorn, the "iron monk" who
recently completed the Boston Marathon and is training for a triathalon, works on lids. Brother Emmanuel Labrise, a
fairly recent arrival from Pennsylvania, lines them with white cloth.
There are two versions, a monastic style with metal handles that sells for $1,500 and a traditional version with wooden
rail handles for $2,000. In a nod to modernity, they can be modified for the oversized. Each is blessed and, an in attempt
to create the abbey's signature, marked with a medal of Saint Benedict.
"Noble simplicity," Brown said. "It's simple, but it's not cheap."
'The last word in life'
The workshop was dedicated Nov. 1, 2007, and a local Catholic newspaper reported the event. The cease-and-desist
letter came immediately, Brown said.
The abbot said it was difficult to know what to do. The abbey had made a huge investment, but he was reluctant to sue
for the right to sell the caskets.
"Was that something monasteries should do, or should we just lay low and be quiet about it?" Brown wondered. "A lot
of these funeral directors are good Catholic men."
He decided to continue to sell caskets to those who asked for them but not to advertise. His state House representative,
Scott Simon (R), looked for a compromise. "It was my first bill," Simon said in an interview. The funeral directors association, he said, had it killed in committee.
"I learned that funeral directors have the last word in life, and in the legislature," Simon said.
After the funeral directors board in 2010 subpoenaed Brown and Coudrain to testify about the casket sales, the men
agreed to let the Institute of Justice file a federal lawsuit challenging Louisiana's law as a violation of due process and
equal protection. The abbey's attorneys said Louisiana is the only state to enforce a ban on in-state sales.
Although robes are usually worn just around the monastery, Brown said, he donned his habit for the news conference on
the courthouse steps, which featured a casket.
Representatives of the funeral directors board, the association that lobbies the legislature and several funeral directors
who serve on both did not return phone calls or e-mails asking for comment on the case.
But in court pleadings, the board said the legislature had good reason for limiting in-state sales of caskets. The act protects Louisianans from "improper and overreaching sales tactics in the area of 'at need' casket sales," the brief says. In
some parts of the state, many burials are aboveground, and that requires "knowledgable decisions" in casket sales
"mindful of Louisiana's unique situation."
The institute's attorneys say that makes no sense. The state has no legal requirement that anyone be buried in a casket,
and, under federal rules, funeral directors must accept a casket that a family has purchased elsewhere.
Thus, Louisianans are free to purchase a casket online from Wal-Mart or Costco, Judge Duval noted, but not from an
in-state casket-maker.
Still, the Louisiana board argues, courts are simply not free to overturn economic regulation laws that have some rational basis.
And, the board said, if it has the "incidental consequence of economic protectionism, such a consequence does not render Louisiana's statutory scheme constitutionally infirm." To second-guess the legislature is to return to the days before
the New Deal, when courts imposed their own economic judgment, the board said
The Institute for Justice's Mellor replies that protectionism is different.
"The standard of review is so favorably tilted to the government that legitimate occupations are foreclosed - or entry
into the occupations is so heavily conditioned - that they basically become cartels or monopolies protected by government edict," he said.
Federal appeals courts have split in evaluating similar laws. The U.S. Court of Appeals for the 10th Circuit said there
was nothing unconstitutional about an Oklahoma law that protected the intrastate funeral home industry.
"While 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," it ruled.
But the U.S. Court of Appeals for the 6th Circuit struck down a Tennessee law protecting funeral directors, saying an
attempt to "privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose."
The institute's attorneys hope the eventual decision from the New Orleans appeals court will make the issue attractive to
the Supreme Court.
If that happens, Brown said, so be it.
"I was concerned that it would disturb the peace of the monastery by getting involved in something somewhat controversial, adversarial, but it hasn't," he said. "If you study monastic history, there were often conflicts between monks and
civil authorities."