Today the 5th Circuit issued an opinion in St. Joseph Abbey v. Castille, an Institute for Justice case that challenges the constitutionality of a law that prohibits Benedictine Monks from selling caskets without operating a licensed funeral home. The district court granted an injunction barring enforcement of the law finding a violation of equal protection. The 5th Circuit doubted that the law survived the rational basis test, but sought to avoid the constitutional issue, and certified a state-law issue to the Louisiana Supreme Court about whether the State Board was acting within its delegated authority.

Here is a good summary of the issues before the court:

The State Board maintains that the regulation of intrastate casket sales enjoys the deference due classic economic regulation. Alternatively, the State Board contends that it is a rational draw upon the State’s police powers in protection of consumers and public health. The Abbey responds that no rational basis can or has been articulated that it has not negated.

The court per Judge Higginbotham had a luccid narrative of the Court’s economic liberty jurisprudence:

Chief Justice Stone’s footnote 4 in Carolene Products, etched in the brains of several generations of law students, both described and prescribed a fundamental dichotomy of judicial review; it retreated from the aggressive review of state regulation of business in the Lochner period while proceeding in the opposite direction in matters of personal liberty. Justice Douglas’s opinion 18 in Williamson v. Lee Optical is generally seen as a zenith of this judicial 19 deference to state economic regulation and the State Board invokes its protections, including its willingness to accept post hoc hypotheses for economic regulation. But even Williamson offers the State Board little succor.

The state argues quite clearly that pure economic protectionism–which is what this regulation is–is a valid reason enough under the rational basis test to survive scrutiny.

As a threshold argument, the State Board urges that pure economic protection of a discrete industry is an exercise of a valid state interest. It points to the Tenth Circuit’s decision in Powers v. Harris, a case in which two members of the panel said as much in turning back an attack on an Oklahoma scheme similar to Louisiana’s. Judge Tymkovitch, the third member of the panel, 24 refused to join the majority opinion’s broad approbation of “economic protectionism” as a valid governmental interest. Rather, he concurred in the 25 judgment, persuaded that the State had otherwise identified a sufficient public purpose

IJ points to a 6th Circuit case they litigate (and an opinion authored by the judge for whom I clerked), Craigmiles.

The Abbey in turn points to Craigmiles v. Giles, in which the Sixth 26 Circuit rejected “economic protectionism” as a rational basis for similar casket regulations, striking down those regulations as a denial of due process and equal protection. 27 These two courts gave differing answers to the question of whether the legislation before them, both statutory schemes quite similar to that now before us, drew upon a legitimate state interest. Craigmiles found that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”

…

Craigmiles and Powers rest on their different implicit answers to the question of whether the state legislation was supportable by rational basis. Craigmiles looked for rationality and found none. Powers found economic protection to be a traditional wielding of state power and rational by definition.

Here is the bulk of the court’s analysis.

As we see it, neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose, but 32 economic protection, that is favortism, may well be supported by a post hoc perceived rationale as in Williamson – without which it is aptly described as a naked transfer of wealth . . .

It follows that the State 36 Board cannot escape the pivotal inquiry of whether there is such a rational basis, one that can now be articulated and is not plainly refuted by the Abbey on the record compiled by the district court at trial. We turn then to the State Board’s alternative argument – that the challenged restrictions are rationally related to protection of public health, safety, and consumer welfare, beginning with some settled guiding principles.

No longer can a government agency in the 5th Circuit cite economic protectionism, by itself, as a rational basis for an economic regulation. They must do more, and show how it falls under the police power.

And on the asserted rationale, even a post-hoc one, the court said it could not be “fanatsy.”

 As the Abbey points out, although rational basis review places no affirmative evidentiary burden on the government, plaintiffs may nonetheless negate a seemingly plausible basis for the law by adducing evidence of irrationality. And of course, as we earlier observed, Williamson insists upon 37 a rational basis, which it found. Mindful that a hypothetical rationale, even post hoc, cannot be fantasy, and that the State Board’s chosen means must rationally relate to the state interests it articulates, we turn to the State Board’s proffered rational bases for the challenged law. Our analysis does not proceed with abstraction for hypothesized ends and means do not include post hoc hypothesized facts. Thus, we will examine the State Board’s rationale informed by the setting and history of the challenged rule.

With this holding, no longer can the government concoct constitutional rationales after a law is enforced that have no basis in the factual record.

The court finds that the stated rationales do not make sense.

The district court found that the extensive training the law requires of budding funeral directors does not include instruction on caskets, or how to counsel grieving customers. Given that Louisiana does not require a person to be buried in a casket, restrict casket purchases in any way by Louisianans over the internet or from other sources out of state, nor imposes requirements on any intrastate seller of caskets directly to consumers, including funeral directors, regarding casket size, design, material, or price, whatever special expertise a funeral director may have in casket selection is irrelevant to it being the sole seller of caskets. . . . 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 . . . That grant of an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices.

In other words, restricting sale of caskets to funeral homes increases the likelihood that consumers will be defrauded.

The court also doubted whether this law actually relates to the health and safety of the community.

Relatedly, we doubt that a rational relationship exists between public health and safety and restricting intrastate casket sales to funeral directors. Rather, this purported rationale for the challenged law elides the realties of Louisiana’s regulation of caskets and burials and causes us to doubt its rationality. 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.

The court went on to note that deference does not “demand judicial blindness” to what is really going on.

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. We insist that Louisiana’s rules not be irrational – the outer-most limits of due process and equal protection – as Justice Harlan put it, the inquiry is whether “[the] measure bears a rational relation to a constitutionally permissible objective.” Answering that question is well within Article III’s 48 confines of judicial review. That said, we should not undertake to strike down a law when doing so can be avoided by resolution of uncertainty in the state statutory scheme. Under well-settled precedent, this Court must avoid deciding a constitutional issue “if there is also present some other ground upon which the case may be disposed of.”

On the precipice, the court reverts to the avoidance canon, and decides to rest the outcome of the case on state law, rather than federal constitutional law. If the State Board is acting outside their delegated power, the law would be invalid, obviating the court’s need to strike it down on constitutional grounds. This is the court charting a middle path.

nor does it require courts to accept nonsensical explanations for naked transfers of wealth. We insist that Louisiana’s rules not be irrational – the outer-most limits of due process and equal protection – as Justice Harlan put it, the inquiry is whether “[the] measure bears a rational relation to a constitutionally permissible objective.” Answering that question is well within Article III’s 48 confines of judicial review. That said, we should not undertake to strike down a law when doing so can be avoided by resolution of uncertainty in the state statutory scheme. Under well-settled precedent, this Court must avoid deciding a constitutional issue “if there is also present some other ground upon which the case may be disposed of.”

And so the question is certified to the Louisiana Supreme Court.

The parties have not requested certification, but pursuantto Rule 12 of the Rules of the Louisiana Supreme Court, this Court may certify upon its own motion. And, because the doctrine of constitutional avoidance is rooted in basic considerations of federalism, the Abbey’s failure to raise the statutory issue does not preclude us if doing so will avoid the constitutional issue. 6 . . . .

QUESTION FOR THE SUPREME COURT OF LOUISIANA

For the above stated reasons, we hereby certify the following determinative question of Louisiana law to the Supreme Court of Louisiana: 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

That’s it, for now.

Judge Haynes concurred specially (as opposed to normally?) to say she does not join Part IV, where the court discussed Powers, Craigmiles, and the rational basis test:

I fully concur in the judgment of the court certifying the question to the Louisiana Supreme Court and in Sections I–III, V, and VI of the opinion. I conclude that it is unnecessary to discuss the issues in Section IV of the opinion at this point other than to note that there are substantial federal constitutional questions presented which might be obviated depending upon the Louisiana Supreme Court’s answer to our question. I agree with my colleagues that concerns of federalism and state sovereignty strongly support certifying the question.

Speaking of Judge Haynes, I heard that because Judge Jones stepped down early as Chief, she superannuated (skipped) over Haynes as Chief Judge. The strategic timing of Chief Judge retirements is fascinating mill for the grist.

More coverage from NOLA here.