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The casket cartel

| Wednesday, Nov. 14, 2012, 8:53 p.m.

WASHINGTON

Shortly before 123 million voters picked a president, 38 Louisiana monks moved the judiciary toward a decision that could change American governance more than most presidents do. The monks' cypress caskets could catalyze a rebirth of judicial respect for Americans' unenumerated rights, aka privileges or immunities.

In 2005, Hurricane Katrina damaged the trees that the monks of St. Joseph Abbey near Covington, La., harvested to support their religious life. So they decided to market the sort of simple caskets in which the abbey has long buried its dead. Monasteries in other states sell caskets, but these Louisiana Benedictines were embarking on a career in crime.

In 1914, Louisiana created the State Board of Embalmers and Funeral Directors. Its supposed purpose is to combat “infectious or communicable diseases,” but it has become yet another example of “regulatory capture,” controlled by the funeral industry it ostensibly regulates. Nine of its 10 current members are funeral directors.

In the 1960s, Louisiana made it a crime to sell “funeral merchandise” without a funeral director's license. To get one, the monks would have to stop being monks: They would have to earn 30 hours of college credit and apprentice for a year at a licensed funeral home to acquire skills they have no intention of using. And their abbey would have to become a “funeral establishment” with a parlor accommodating 30 people, and an embalming facility even though they just want to make rectangular boxes, not handle cadavers.

This law is unadulterated rent-seeking by the funeral directors' casket-selling cartel. The law serves no sanitary purpose: Louisiana does not stipulate casket standards or even require burials to be in caskets. And Louisianans can buy caskets from out of state — from, for example, Amazon.com (it sells everything ). A complaint filed against the monks by a funeral director said: “Illegal third-party casket sales place funeral homes in an unfavorable position with families.”

That is, the bereaved become angry when forced to buy caskets from the funeral homes' cartel.

Our courts have retreated from protection of economic rights — the right to earn a living without arbitrary and irrational government hindrances. They have complacently allowed any infringements of those rights for which governments offer any “rational basis” — such as, the supposed good done by conferring economic benefits on favored factions.

Last month, the 5th Circuit rejected Louisiana's casket nonsense, saying “neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose.” And: “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.”

If courts once again become properly impatient with nonsensical explanations, much of what government does will become untenable. It is lovely that revitalized protection of the individual rights of property and striving may owe much to an abbey where all property is communal.

George F. Will is a columnist for The Washington Post and Newsweek.

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