Go to Top

Is Every Dumb Law Unconstitutional?

The Fifth U.S. Circuit Court of Appeals recently struck down a Louisiana law that was clearly the product of intensive lobbying and contrary to the best interests of the state’s citizens.

Nice at it is to see ordinary folks win one against the well-connected, I have to wonder: Do we want our courts to be in the business of invalidating laws that are merely stupid or irrational? Think for a minute before you answer, because if you say “yes,” a lot of legislation is going to be in jeopardy.

The now-defunct law regulated the sale of caskets within Louisiana, requiring anyone selling a casket to be a licensed funeral director operating out of a licensed funeral home. The law became an issue when a group of Benedictine monks wanted to start selling, direct to the public, the plain wooden caskets they had constructed and used themselves for years.

The monks’ caskets were significantly cheaper than most others on the market, but not one of the monks had been trained as a funeral director, and their monastery lacked an embalming room, which is required in Louisiana funeral homes. Before the monks made a single sale, they received a letter from the Louisiana State Board of Funeral Directors demanding that they shut down.

At first glance, it seems the law might be justified by public health concerns. There may, after all, be good reasons to ensure that bodies are securely contained when they are put in the ground. However, casket use is not mandatory for burials in Louisiana. It is perfectly legal to bury someone in no casket at all. The required training for funeral directors also includes no special courses on casket sealing or safety.

The monks unsuccessfully petitioned the state Legislature before taking their case to court.

The court said the law violated the monks’ rights to due process and equal protection under the Fourteenth Amendment. This, on the surface, seems like an unlikely basis to overturn a law governing burial practices. If one of the monks had been willing to follow the licensure process to become a funeral director, he would have been free to do so - though, given the beliefs of the Benedictines, a monk hoping to become a funeral director would likely need to leave the order.

By precedent, however, the Fourteenth Amendment can be invoked even when no specific protected class is singled out for injury if a court determines there is no “rational basis” for the law under consideration. Under the so-called “rational basis test,” developed in the 1938 case of United States v. Carolene Products Co., a law can be considered unconstitutional if a court can find no plausible way in which it might support a legitimate government interest. Two key points of rational basis review are that a law does not need to well-devised to achieve the government’s interest and that the court does not need to agree with the government’s goals.

When properly applied, the rational basis test ought to be solely a protection against laws that are so thoroughly incomprehensible that the only possible reason for their existence could be as a masked means to put individuals or other entities disfavored by the state at a disadvantage.

That is not the case with the Louisiana law. In fact, the law’s purpose is quite clear: to support the funeral industry, which happens to command a powerful lobby in Baton Rouge. I don’t think this is a very good purpose, and apparently neither did the Fifth Circuit, but it is neither their place nor mine to ensure that Louisiana voters’ interests are well-served. That responsibility lies with the voters themselves.

Louisiana residents who want to buy or sell cheap caskets have the same access to the political system as do Louisiana residents who want to maintain the current regulatory structure. It is up to them to use it.

The issue goes far beyond casket sales. Legislatures, both state and national, do lots of things that aren’t particularly rational in the more conventional meaning of the word. To stick with licensing requirements, in many places, a license is required to wash someone’s hair in a salon. I’m not sure that’s rational. Certain states, including New York, require accountants to have auditing experience to be licensed as CPAs, even though many CPAs never conduct audits. That seems more or less equivalent to the Louisiana requirement that casket sellers train as funeral directors, whether or not they intend to direct funerals. Neither seems particularly smart, but I can find no section of the Constitution that prohibits either.

I suspect that if the Louisiana case rises to the Supreme Court, the monks will lose. This will be unfortunate for the monks and for those who might have appreciated their cost-effective caskets, but it would keep judges from making a side line out of rewriting our statutes for us.

Justice Thurgood Marshall was reportedly fond of remarking that “the Constitution does not prohibit legislatures from enacting stupid laws” - a line Justice John Paul Stevens quoted in 2008. It’s a comment worth remembering.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

The views expressed in this post are solely those of the author. We welcome additional perspectives in our comments section as long as they are on topic, civil in tone and signed with the writer's full name. All comments will be reviewed by our moderator prior to publication.

, , , , ,