IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

712 F.3d 215 (2013)

ST. JOSEPH ABBEYv.LOUISIANA STATE BOARD OF EMBALMERS AND FUNERAL DIRECTORS

Appeal from the United States District Court for the Eastern District of Louisiana

Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I.

The thirty-eight monks of St. Joseph Abbey earn their way in a pastoral setting.In years past, the Abbey's timberland provided a source of income.After Hurricane Katrina destroyed its timber, the Abbey began looking for other revenue sources.For generations the Abbey has made simple wooden caskets to bury its monks.Public interest in the Abbey's 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." The business plan was simple.St. Joseph Woodworks offered caskets intwomodels,"monastic"and"traditional,"pricedat$1,500and$2,000 respectively, significantly lower than those offered by funeral homes. The Abbey offers no funeral services.It does not prepare deceased for burial and its monks do not participate in funerals, except as pastors.

Louisiana does not regulate the use of a casket, container, or other enclosure for the burial remains.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.

Nonetheless, the Abbey's plan for casket sales faced significant regulatory burdens.The Louisiana State Board of Embalmers and Funeral Directors ("State Board") argues that, under state law and the Board's regulations, 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. This regulation has two layers.First, a prospective 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.)Second, 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 one-time apprenticeship. Theapprenticeshipmustconsistoffull-time employmentandbetheapprentice's"principal occupation."

None of this mandatory training relates to caskets or grief counseling.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 authorized by law to provide funeral services.In sum, the State Board's sole regulation of caskets presently is to prohibit their intrastate sales except by funeral homes.There are no other strictures over their quality or use.

II.INTENTIONALLY OMITTED

III.

In December 2007, the State Board ordered the Abbey not to sell caskets to the public, and the next month the Louisiana Funeral Directors Association initiated a formal complaint against the Abbey.

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 committee.No member of the public opposed the bills.

Facing these hurdles, the Abbey filed this suit in the district court seeking declaratory and injunctive relief against enforcement of the State Board's regulations. The Abbey's complaint asserted that the licensing requirements deny the Abbey equal protection and due process under the Fourteenth Amendment because they bear no rational relationship to any valid governmental interest. The State Board responded that the challenged rules are rationally related to the State's legitimate interest in regulating the funeral profession.

After conducting a bench trial, the district court issued judgment for the Abbey, finding (a) that this brand of economic protectionism is not a legitimate state interest; and (b) that there is no rational relationship between the challenged law and Louisiana's interests in consumer protection, public health, and public safety. The State timely appealed.

After examining the record, we had serious doubts about the constitutionality of the State Board's regulation of intrastate casket sales, but we saw a potential state law ground for deciding the case. Specifically, we questioned whether, under Louisiana law, the State Board has authority to regulate casket sales in and of themselves when such sales are not incidental to the seller's provision of any other funeral services.We deferred a final decision in the case to allow the Louisiana Supreme Court to rule on the statutory uncertainty. In the interest of federalism and constitutional avoidance, we certified the following question to the Louisiana Supreme Court: 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 Louisiana Supreme Court denied certification without explanation.

IV.

Ours cannot be the final word on uncertainty in state law. The parties do not challenge the Board's authority here, and the state has declined our request to clarify this statute's meaning. We turn to the issues the parties have brought and proceed to rule on the constitutionality of the challenged law.

1. Consumer Protection

The State Board argues that the challenged law is rationally related to consumer protection because it restricts predatory sales practices by third-party sellers and protects consumers from purchasing a casket that is not suitable for the given burial space.

We find it doubtful that the challenged law is rationally related to policing deceptive sales tactics. In a nationwide study of the funeral industry, The Federal Trade Commission ("FTC") found that funeral homes, not independent sellers, have been the problem for consumers with their bundling of product and 400% markups of caskets. Moreover, there is no apparent need for the challenged law because Louisiana's Unfair Trade Practices and Consumer Protection Law already polices inappropriate sales tactics by all sellers of caskets, whether those sales are made by state-licensed funeral homes or not. Louisiana's grant to funeral homes of an exclusive right of sale adds nothing to protect consumers. To the contrary, it puts them at a greater risk of abuse including exploitative prices.

1. Public Health and Safety

We also doubt that a rational relationship exists between public health and safety and restricting intrastate casket sales to funeral directors.The district court found Louisiana does not (a) require a person to be buried in a casket; (b) restrict casket purchases by Louisiana residents from out-of-state sources or over the Internet; nor (c) impose requirements on any intrastate seller of caskets (including funeral directors) directly to consumers regarding casket size, design, material, or price. Thus whatever special expertise a funeral director may have in casket selection is irrelevant to it being the sole seller of caskets.

The fact 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.

V.

The great deference that federal courts give to 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 regulation.We insist that Louisiana's regulation not be irrational. The inquiry is whether the measure bears a rational relation to a constitutionally permissible objective. Answering that question is well within Article III's confines of judicial review.

The funeral directors have offered no rational basis for the challenged rule and, try as we are required to do, we can suppose none. We AFFIRM the judgment of the district court.

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