The opinion is here. Congratulations to my friends at the Institute for Justice for litigating this case.
An Abbey of the Benedictine Order of the Catholic Church challenges as unconstitutional rules issued by the Louisiana Board of Funeral Directors granting funeral homes an exclusive right to sell caskets. The district court enjoined their enforcement, finding that they deny equal protection and due process of law. We will AFFIRM the judgment of the district court.
This discussion of Carolene Products, Lochner, and Lee Optical is wonderful:
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.23 Justice Douglas’s opinion in Williamson v. Lee Optical24 is generally seen as a zenith of this judicial 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.
There is also a discussion of Powers v. Harris (CA10) and Craigmiles v. Giles (CA6):
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.29 Judge Tymkovich, the third member of the panel, refused to join the majority opinion’s broad approbation of “economic protectionism” as a valid governmental interest.30 Rather, he concurred in the judgment, persuaded that the State had otherwise identified a sufficient public purpose.31 The Abbey in turn points to Craigmiles v. Giles, in which the Sixth 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.32 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.”33 The Powers court saw the statutory scheme before it as simple economic protectionism, “the favored pastime of state and local government,” and in its mind a permissible basis for regulation.34 In turn, it rejected the challenge to the regulations that limited the sale of caskets to funeral directors.3
And in a striking conclusion, citing Cragimiles favorably, the Court finds that economic protection is not a legitimate governmental interest:
As we see it, neither precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose,38 but 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 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
After systematically rejecting each of the state’s proffered interests, the court describes its approach to judicial modesty (with a shutout to the spirit of Lochner):
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 regulation. The deference we owe expresses mighty principles of federalism and judicial roles. The principle we protect from the hand of the State today protects an equally vital core principle – the taking of wealth and handing it to others when it comes not as economic protectionism in service of the public good but as “economic” protection of the rulemakers’ pockets. Nor is the ghost of Lochner lurking about. We deploy no economic theory of social statics or draw upon a judicial vision of free enterprise. Nor do we doom state regulation of casket sales. We insist only that Louisiana’s regulation 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.”56 Answering that question is well within Article III’s confines of judicial review.
I often think that mere rational basis review is nothing more than deferring to the political branches, almost like a political question. It’s interesting that the court concludes by noting that this is within the confines of Article III.