Protectionism, Consumer Welfare, and Rational Basis Review

Robert Barnes at the Washington Post has this great story in today's Washington Post about Louisiana monks who want to sell funeral caskets but have been hit with a cease-and-desist order enforcing a protectionist Louisiana law that says that the only Louisianans permitted to sell "funeral mechandise" in Louisiana are "licensed funeral establishments." A federal district court held that the law is unconstitutional, as applied to the monks' sales of funeral caskets, and the case is now before the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Typically, distinctions drawn by so-called "economic" legislation will survive constitutional challenge if they can be justified by any conceivable rational basis. Here, at least as applied to the sale of caskets, the sole basis for the law -- and it is certainly a rational basis from the funeral industry's perspective(!) -- appears to be protection of an in-state industry. Louisiana claims that the law protects Louisiana consumers from overreaching and that, in helping consumers select caskets, Louisiana funeral directors must apply their specialized knowledge about above-ground burials. But those rationales are doubtful, among other reasons because Louisianans are free to buy caskets from out-of-state casket sellers, including Wal-Mart and Costco. It seems likely that a little more competition in casket sales would help Louisiana consumers. Stay tuned.