The Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes (note)

Authors

Alexandra L. Klein, St. Mary’s University School of LawFollow

Journal Title

Washington and Lee Law Review

Volume

73

Issue

2

First Page

411

Document Type

Article

Publication Information

2016

Abstract

After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.

Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase of caskets or other funeral merchandise.” The statute additionally specified that only licensed funeral directors operating out of "duly licensed Louisiana funeral establishment [s]" could engage in funeral directing. Even though Louisiana did not require a casket for burial, nor did any law prevent a customer from building his own or purchasing one out of state, the monks were unable to sell their caskets in Louisiana. Obtaining the necessary credentials was both cost and time prohibitive, leaving the monks out of business. They sought relief from the legislature without success before turning to the courts. The problem St. Joseph Abbey faced is one that many individuals attempting to enter a profession or open a new business share: occupational licensing.

Recommended Citation

Alexandra L. Klein, The Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes (note), 73 Wash. & Lee L. Rev. 411 (2016).