Bottleneckers. William Mellor
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to speak against it. In rambling testimony, funeral directors asserted that their casket monopoly was necessitated by their supposedly unique and specialized knowledge about the complexities of preparing bodies for burial and burying them in Louisiana. But when a committee member asked a different question, about whether someone could buy a casket anywhere and have it shipped to a funeral home in Louisiana for use in a burial, a representative of the Louisiana Funeral Directors Association admitted that this was indeed the case, completely undermining the bottleneckers’ other arguments about burials. Nevertheless, the bill was killed in committee. “I learned that funeral directors have the last word in life, and in the legislature,” Representative Simon said.90
The Abbey pursued legislative reform again in spring 2010. This time, state senator Francis Thompson drafted a bill to exempt the Abbey and other nonprofit casket sellers from needing a funeral director’s license to sell caskets. But, once again, the funeral industry opposed the bill and it never emerged from committee. Along the way, the Louisiana Funeral Directors Association attempted to placate the monks by offering to house Abbey caskets in various funeral homes free of charge. But having their caskets displayed in funeral homes alongside other manufacturers’ products would not allow the monks to interact directly with their customers, so they declined the offer, citing their belief that contact with customers was an integral part of their service.91 Moreover, as Abbot Brown observed, “It became clear that we were fighting not only for ourselves but for other people like us who encounter these kinds of regulations and keep them from going into business or to make an honest living.”92
Unable to achieve a legislative remedy due to the power of the funeral bottleneckers, Saint Joseph Abbey filed a federal lawsuit against the funeral board on August 12, 2010. To protect its monopoly, the board increased its legal budget93 and hired an expensive private attorney to work with the board’s attorney to represent it in court.94 In the trial, the monks argued that they should not be punished for doing something that should not be considered a crime—thereby exercising their right to earn an honest living—particularly when they were being punished for no other purpose than to protect the private financial interests of the funeral-industry cartel. The board responded by asserting a need to maintain a standard of quality in the industry by protecting the public from aggressive sales tactics—by monks!—at a time when consumers were vulnerable. The board further claimed that in some parts of the state many burials are above ground, which it said requires “knowledgeable decisions” about casket sales given Louisiana’s unique situation.
In response, the Abbey’s attorneys from the Institute for Justice reminded the court that the state did not require anyone to be buried in a casket and that under the Funeral Rule funeral directors must accept a casket purchased elsewhere. They pointed out that Louisiana consumers were free to purchase a casket from online retailers or out-of-state casket sellers but not from in-state casket makers.95 In short, Louisiana’s ban on the activities of unlicensed, in-state casket sellers did nothing to protect consumers but did insulate the state’s funeral directors from competition.
In July 2011, the monks won a huge victory when US district judge Stanwood Duval ruled the state law unconstitutional, saying, “The sole reason for these laws is the economic protection of the funeral industry,” and adding “there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets.”96 The funeral board pressed its case with the federal appeals court in New Orleans the following year. The result, however, was the same: The Fifth US Circuit Court of Appeals rejected the state’s claims, concluding that “neither precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose” and that “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.”97
Still, the funeral board bottleneckers battled on, requesting a review by the US Supreme Court. On October 15, 2013, the justices denied the board’s petition, thus leaving in place the lower court’s ruling and confirming what Abbot Brown had known all along: the monks of Saint Joseph Abbey had committed no sin in creating plain wooden caskets and selling them to their Louisiana neighbors.98
WHEN COURTS IGNORE THE BOTTLENECKING REALITY
At the most obvious level, the courts’ decisions meant that Pastor Craigmiles, the monks, and anyone else in their states were finally free to enter the casket market. But the fact that the courts gave the arguments of Pastor Craigmiles and the monks any consideration at all was itself virtually unprecedented in the legal arena.
Since the late nineteenth century, courts have paid scant attention to the economic rights of petitioners, instead deferring to the supposed will of the people in the form of legislatures. But what really occurs in state capitols across the country is not lawmakers proactively seeking ways to protect citizens from dangerous occupational practitioners or responding to harmed consumers demanding increased regulation of an industry. It is trade associations wielding influence over legislators who are all too willing to comply with their demands in order to secure votes and favors from an identifiable, energized voting bloc.99
What the courts have essentially done for many decades is to allow the co-option of government power by small interest groups for their own benefit to go unchecked. These groups deny the right of others to practice their occupation free from onerous and unnecessary government intrusion100—the type of intrusion that requires someone who merely wants to sell a wooden box to be required to apprentice at a licensed funeral home for one year, take a funeral industry test, and maintain a funeral establishment complete with embalming equipment. More often than not over the last hundred-some-odd years, the result has been stories like that of Kim Powers Bridges.
In the early 1980s, Kim was on the executive fast track. Raised in a family of hardworking Oklahoma entrepreneurs, she began work after college in the Texas office of a real estate management firm, where she quickly became the youngest regional manager in the company. In 1991, she returned to her hometown of Ponca City, Oklahoma, joined a financial services company, and grew to become one of the top producers in the state.101
Despite her success, Kim was restless. The economic rewards of her accomplishments failed to satisfy a long-simmering desire to combine her sense of determination with a call to serve others, but she could find no clear direction on where or how to do so. The answer came from her children’s babysitter,102 whose husband was a funeral home director looking for someone to run his business’s “preneed” services—for those who choose to make funeral arrangements before their deaths.
At the babysitter’s urging, Kim reluctantly agreed to meet her babysitter’s husband and discuss the position, but she harbored deep skepticism about such a move. She had established herself successfully in the financial services field in Ponca City and doubted that this industry about which she knew essentially nothing could hold any promise for her. Her attitude, indeed her whole life, changed when she learned more about the work.103 “I realized this job would put me in a position to help someone on the worst day of his or her life, or to prepare a person for that day,” Kim explained. “I knew this was something I would do for the rest of my life.”104
In 1993, Kim joined one of the largest funeral home operators in North America, and, as before, her hard work resulted in numerous promotions—area sales manager, regional sales manager, and beyond. But the promotions came at a price. Each move took her further away from serving clients and deeper into the morass of corporate bureaucracy and office politics. After five years, she sensed it was time to take what she had learned and return to her entrepreneurial roots.
Kim was a third-generation female entrepreneur. Her mother and grandmother had both been entrepreneurs, running a series of successful businesses by discerning a need in the market, shaping the business to meet demand, and growing it to sustainability and profitability. Growing up and working in such an environment conditioned her well. During her time in the funeral business, Kim came to recognize an area of significant consumer need—reasonably priced funeral merchandise.105 She formed a partnership