The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

"My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us," explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. "The State is going after the monks because licensed funeral directors want the casket market to themselves," Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court "insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection." The Board "offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none."

Granting funeral homes "an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices," the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable "substituting [its] view of the public good or the general welfare for that chosen by the states." A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc is pending in the Fifth Circuit.

Circuit Split Watch is a monthly column examining federal appellate splits that may lead to Supreme Court review. The author, attorney Michelle Olsen, publishes Appellate Daily, a Twitter feed and blog about federal appeals.