FIFTH CIRCUIT
CIVIL NEWS
St. Joseph Abbey v. Castille
HIGGINBOTHAM, HAYNES AND HIGGINSON • MARCH 20, 2013, CERT. DENIED, OCTOBER 15, 2013
APPEAL FROM E.D. LA. • DIST. JUDGE DUVAL
The abbey’s intrastate sales of low-priced pine caskets drew a complaint to the Louisiana
Board of Funeral Directors, which enforces state laws regarding funeral homes and directors.
Essentially, Louisiana required that in-state casket retailers be licensed as funeral establishments;
to be a funeral establishment, a business had to employ a full-time funeral director (a title that
carried its own licensing demands) and meet certain physical requirements (a parlor, embalming
facilities, etc.). The complaint was that the abbey, though unlicensed as a funeral establishment,
sold caskets to Louisiana buyers. (Louisiana did not regulate casket sales by out-of-state sellers.)
Faced with the complaint and the board’s order not to sell caskets in Louisiana, the
abbey sued the board’s members (in their official capacity), alleging that the “licensure
requirements confin[ing] intrastate sales of caskets to sales by funeral directors at funeral
homes[] den[ied] ... equal protection and due process under the Fourteenth Amendment
because they bear no rational relationship to any valid governmental interest.” After a
bench trial, the district court agreed and ruled for the abbey.
On appeal, the Fifth Circuit “had serious doubts” about the laws’ constitutionality, but
thought it possible to avoid the constitutional question by holding that the board lacked
enforcement authority over casket sales by retailers “who [like the abbey] do[] not provide any
other funeral services” (footnote omitted). 700 F.3d 154 (5th Cir. 2012) (Higginbotham, Haynes
and Higginson). It certified a question on that subject to the Louisiana Supreme Court, but that
court declined to answer.
Holding: Affirmed. Since none of the parties questioned the board’s enforcement
authority, the Court went ahead and answered the constitutional question. First, the defendants
“urge[d] that pure economic protection of a discrete industry [i.e., of licensed funeral
establishments as the sole intrastate retailers of caskets] is an exercise of a valid state interest.”
But that position had no vitality after the Court, in Greater Houston Small Taxicab Co.
Owners Ass’n v. Houston, 660 F.3d 235 (5th Cir. 2011) (Jones, King and Barksdale), agreed
with a Sixth Circuit decision holding that “‘naked economic preferences are impermissible to the
extent that they harm consumers’” (footnote omitted).
Alternatively, the defendants argued that the laws had a rational basis in “restrict[ing]
predatory sales practices by third-party sellers [i.e., a casket seller other than the funeral
establishment responsible for any particular funeral] and protect[ing] consumers from purchasing
© 2013 Fifth Circuit Civil News, LLC
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a casket that is not suitable for the given burial space.” The Court found no evidence of predatory
sales practices by third-party, intrastate casket sellers and, on the other hand, it found that
Louisiana had statutes and regulations prohibiting any unfair trade practices. As for the second
rationale, customers who engage a funeral establishment (and, “[i]ndeed, it appears that all
persons seeking to dispose of a deceased are obligated to engage a Louisiana funeral
establishment”) usually pay
a non-declinable service fee, which contractually binds a funeral director to assist
the customer with funeral and burial logistics, including, for example, casket
selection .... As a consequence, the customer should receive the benefit of the
funeral director’s experience in matters of casket selection, including complexities
that arise from burial conditions in any given area.... A customer of a funeral
home receives the same service whether or not he purchases the casket from the
funeral home ....
The defendants also argued that the laws promoted public safety, but the Court could not
see how, given 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.”
Counsel in Fifth Circuit No. 11-30756:
Scott G. Bullock (Arlington, Va.) for St. Joseph Abbey and Mark Coudrain
David W. Gruning (New Orleans) for Paul W. Castille, et al.
Daniel A. Ranson (Gretna) for amicus Louisiana Funeral Directors Association
Mary G.H. Lang (Irvine, Calif.) for amicus Todd J. Zywicki
John F. Daly (Washington, D.C.) for amicus Federal Trade Commission
Matthew A.D. Draper (Washington, D.C.) for amici International Cemetery, Cremation, and
Funeral Association and Funeral Consumers Alliance
© 2013 Fifth Circuit Civil News, LLC
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