Bottleneckers. William Mellor
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bears no rational relationship to managing that effect.”76 The court concluded that the Tennessee legislature’s “measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose.”77 In the face of two strong court rejections, the state board chose not to appeal to the US Supreme Court this time.78
BOARDS OF BOTTLENECKERS
The case of Pastor Craigmiles illustrates how bottleneckers don’t just consist of trade associations looking to maintain the fence around their occupation. They are also made up of government licensing boards ostensibly charged with protecting public welfare but actually functioning as state agents acting on behalf of license holders. This is the result of membership on such boards being dominated by practitioners of the regulated trade, which happens through a process known as “regulatory capture.”79 Having control on these boards not only allows industry representatives to restrict entry into their own occupation by setting up licensing schemes but also gives them state-granted power to punish those operating without a license with fines and jail time, including entrepreneurs like Pastor Craigmiles who merely sell caskets.
Through enforcement, licensing boards police the fences around their occupations so strictly that even nonprofits whose efforts are aligned with their fundraising activities sometimes receive punitive action. In Louisiana, for example, Catholic monks from the Saint Joseph Abbey faced the possibility of a jail term for daring to sell handmade caskets to fund their religious mission. On March 30, 2010, the Louisiana State Board of Embalmers and Funeral Directors subpoenaed Abbot Justin Brown and Deacon Mark Coudrain of the Saint Joseph Abbey, commanding them to appear before the board and answer allegations under oath about caskets the Abbey had been selling to fund its day-today expenses. If found guilty, they would have faced fines of between $500 and $2,500 for each casket sold and up to 180 days in jail. The subpoena was the culmination of a three-year crusade by the funeral board against the Abbey, which sought only to support itself through the sale of simple handmade wooden caskets, the type Abbey monks had made for their own burials for years.
Saint Joseph Abbey dates back to the late nineteenth century, when it was established by Benedictine monks for the pursuit of a monastic life that included liturgical prayer, the singing of psalms, simple labor, education, and hospitality toward those seeking a contemplative respite from the world. Consistent with the teachings of their namesake, Benedictine monks have for centuries supported themselves through trades including brewing beer, making wine, and farming. At Saint Joseph Abbey, operational funds come from a seminary the monks direct, a retreat center, timber farming, and small enterprises such as a gift shop that features Abbey-made “Monk Soap.”80
In the 1990s, it became clear to Abbey leaders that these income sources were not enough and a new means to support themselves financially was needed. However, any new undertaking had to be in keeping with the monks’ quiet and simple life. In the meantime, attention was increasingly being paid to the caskets that the monks made for themselves and friends of the Abbey. People attending the funerals of prominent Louisiana Catholics buried in Abbey-made caskets began to inquire about buying similar caskets for their loved ones. And so the monks sold a small number of caskets beyond the Abbey. That all changed in 2005, when Hurricane Katrina destroyed the part of the Abbey’s pine timberlands whose harvest had been so profitable.81
With the loss of 60 percent of its adult pine trees, the leaders at the Abbey knew that they would not be able sell timber for twenty years, making critical the need to find alternate sources of funding.82 It was then that Deacon Coudrain approached Abbot Brown with an inspired idea—to make and sell caskets to meet a growing demand. It represented the perfect opportunity: Casket making was a simple occupation that could be performed at the monastery, and selling caskets would enable the monks to share their view of the simplicity and unity of life and death.
The monks prayed, voted on the plan, and eventually expanded their casket-making capacity by investing $200,000 to convert an old cafeteria building on their property into a well-equipped woodshop.83 On November 1, 2007, the monks officially unveiled Saint Joseph Woodworks, which would produce two models of honey-colored caskets, one for $1,500 and another for $2,000, both priced at the lower end of caskets offered at funeral homes84 and each blessed and marked with a medal of Saint Benedict.85
The Clarion Herald, the official newspaper of the Archdiocese of New Orleans, ran an article about the proposed new venture that caught the eye of the Louisiana State Board of Embalmers and Funeral Directors. On December 11, 2007—before the Abbey had sold even one casket—the state board sent the Abbey a letter stating that selling caskets violated the law and would subject the monks to crippling fines, jail time, and a possible lawsuit by the state. Unbeknownst to the monks, Louisiana law made it a crime to sell funeral merchandise, including caskets, without a funeral director’s license. To sell caskets legally, the monks would have to apprentice at a licensed funeral home for one year and take a funeral-industry test. They would also have to convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming human remains.
The monks were flummoxed: Why would a funeral director’s license be required to sell an empty wooden box? There were no health and safety concerns, and a casket is not even a requirement for burial in Louisiana. A human body is allowed be placed directly in the ground, buried in a shroud, or entombed in a cardboard casket.
In fact, from its origins, Louisiana’s casket law had nothing to do with protecting the public; it served only to protect the interests of the bottleneckers. The Louisiana Board of Embalmers and Funeral Directors was created in 1914, ostensibly to protect against infectious or communicable diseases. But, in yet another example of regulatory capture, the board quickly came under the control of the industry it was charged to oversee. Today, all but one of its ten members are funeral directors. One of the board’s most important achievements came in the 1960s, when Louisiana—like Tennessee would do the following decade—made it a crime to sell funeral merchandise without a funeral director’s license.86 With this law in place, the funeral-director bottleneckers possessed the necessary power to punish anyone who posed even the smallest competitive threat to their sheltered market, including a small band of modest monks producing simple wooden caskets.
In the face of the cease-and-desist order, the monks continued selling their caskets. Following the December 2007 letter, the funeral board swiftly launched an investigation—spurred on by an official complaint lodged by a funeral home director. The board obtained sworn statements from funeral homes that had received the Abbey’s caskets and from the board’s investigator, Jude Daigle, who spotted the Abbey’s truck at a funeral home and helped Deacon Coudrain unload a casket. On January 30, 2008, the board questioned Abbot Brown, concluded the Abbey was violating the law by selling its caskets, and once again threatened him with penalties of between $500 and $2,500 per violation—the monks had only sold sixty caskets at that point—and 180 days in jail.87
The Abbey disagreed with the board’s legal conclusions and stated that it intended to try to change the law. Nonconfrontational by nature, the monks assumed the board’s conclusion was essentially a misunderstanding that could be cleared up through negotiation or, if the board was simply enforcing a legal technicality, with a simple revision of the law. Made up of mostly licensed funeral directors, the board had no incentive to compromise and remained completely intractable. So, in what amounted to an act of civil disobedience, in the face of what they believed to be an injustice, the monks continued to sell their caskets—though without advertising and only to those who requested them—while pursuing change through the legislature.88 It was not an easy decision. As Abbot Brown, a soft-spoken man in his midfifties, explained,
I was concerned that it would disturb the peace of the monastery by getting involved in something somewhat controversial, adversarial, but it hasn’t. . . . If you study monastic history, there were often conflicts between monks and civil authorities.89
To seek justice, the monks first went to their local state representative Scott Simon, who agreed in May 2008 to introduce a bill amending the law through the Commerce Committee. Deacon Coudrain and Abbot Brown attended the committee hearing in favor of the bill,