A major case testing the reach of state regulatory power has just moved one step closer to review by the U.S. Supreme Court. On Wednesday, the Louisiana State Board of Embalmers and Funeral Directors asked the Supreme Court to reinstate its requirement that only licensed funeral directors be permitted to sell coffins within the state, thereby preventing the monks of St. Joseph Abbey from engaging in the unlicensed sale of hand-made wooden caskets.

In March, the U.S. Court of Appeals for the 5th Circuit invalidated that licensing requirement, holding that the state lacked any rational basis for its law and had offered only "nonsensical explanations" in the law's defense. "That Louisiana does not even require a casket for burial, does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral directors to have any special expertise in caskets," the 5th Circuit declared, "leads us to conclude that no rational relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments." Indeed, the state has admitted that the licensing requirement served as a form of economic protectionism for its funeral industry.

In its appeal to the Supreme Court this week, the State Board basically argues that none of these facts matter, because the federal judiciary has no choice but to defer to state officials and uphold the contested regulation. "The purpose of rational-basis review is to insulate State legislation on economic and social issues from judicial review," the State Board declares.

The Institute for Justice, the public interest law firm representing the monks of St. Joseph Abbey in their challenge to the licensing requirement, is due to file a response to the Louisiana State Board next month. In a statement issued this week, the firm left little doubt that both the monks and their lawyers are ready to continue the fight. "Americans didn't create a nation of free people so that state governments can use their power to make private financial interests rich at the expense of liberty and the public," declared Institute for Justice attorney Jeff Rowes. "If the Supreme Court takes this case, we will win."