Casket-Making Monks|May Evade Licensing Yet

NEW ORLEANS (CN) - A bid to regulate the casket production of a Catholic monastery must go before the Louisiana Supreme Court, the 5th Circuit ruled.

The Louisiana funeral board says it has the right to keep the Monks of St. Joseph, a Catholic monastery of 38 monks located in Covington, La., from selling handmade wooden caskets, but the federal appeals court said that the board must first prove that it ever had the right to regulate casket sales in the first place.

"One could interpret Title 37 Chapter 10, the portion of the Louisiana code creating the State Board, as only vesting the State Board with authority to regulate casket sales when made by someone who operates a funeral establishment or provides funeral services," Judge Patrick Higginbotham wrote for a three-judge panel.

To that end, the panel tasked the Louisiana Supreme Court with determining "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."

Even in positing the question, the panel appeared doubtful.

"To be sure, Louisiana does not regulate the use of a casket, container, or other enclosure for the burial remains; has no requirements for the construction or design of caskets; and does not require that caskets be sealed," according to the Tuesday opinion. "Individuals may construct their own caskets for funerals in Louisiana or purchase caskets from out-of-state suppliers via the internet. Indeed, no Louisiana law even requires a person to be buried in a casket."

Court documents say the monks looked to casket making as a possible source of revenue after Hurricane Katrina destroyed their timber in 2005.

The monks had spent generations making simple wooden caskets their brethren, but public interest in the caskets increased after two bishops were buried in Abbey caskets in the 1990s.

"Seeing potential in this demand, the Abbey invested $200,000 in St. Joseph Woodworks, managed by Mark Coudrain, a deacon of the Church and an employee of the Abbey," Higginbotham wrote. "The business plan was simple. St. Joseph Woodworks offered one product - caskets in two models, 'monastic' and 'traditional,' priced at $1,500 and $2,000 respectively, significantly lower than those offered by funeral homes."

Other than casket-making, the monastery does not arrange funerals nor handle human remains. It limits its participation in funerals to a pastoral role.

But in December 2007, the State Board of Licensed Funeral Directors threatened the monks with penalties of up to $2,500 and 180 days in jail if they continued to make and sell the caskets without a funeral director's license or licensing themselves as a funeral establishment.

Such regulations would require the monks to build a layout parlor for 30 people, a display room for six caskets, an arrangement room, and embalming facilities, among many other guidelines, according to the court.

After the monks filed suit, U.S. District Judge Stanwood Duval ruled that the monks do not need a license to make the caskets.

"There is no rational basis for the state of Louisiana to require persons who seek to enter into the retailing of caskets to undergo the training and expense necessary to comply with" rules required of funeral directors, Duval wrote in July 2011.

The 5th Circuit judges agreed.

"Whatever special expertise a funeral director may have in casket selection is irrelevant to it being the sole seller of caskets," Higginbotham wrote. "This is because customers pay funeral directors a nondeclinable service fee, which contractually binds a funeral director to assist the customer with funeral and burial logistics, including, for example, casket selection, even if the customer does not purchase the casket from the funeral director. ... A customer of a funeral home receives the same service whether or not he purchases the casket from the funeral home, and because only funeral homes can sell funeral services, and all disposing of dead bodies must be 'through a funeral establishment,' he must engage their service.

"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."

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