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Carolina Beat

A Victory Against Unwarranted Regulation

Dec. 13th, 2012
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RALEIGH -- Score one for economic opportunity and consumer choice.

The Louisiana monks who faced time in the slammer for selling handmade wooden caskets to support themselves have won a victory in federal court against the protectionist Louisiana State Board of Embalmers and Funeral Directors.

The licensing board had sought to keep the monks out of the casket-selling business and instead wall off the business for a select group of funeral industry insiders. The complaint? The monks' simple, modestly priced caskets -- which are blessed before delivery -- put funeral homes at a disadvantage.

The ruling from the 5th U.S. Circuit Court of Appeals makes great reading for those of us who oppose economic protectionism and cronyism. But a statement on page 16 jumped out at me: "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 naked transfers of wealth."

And that is what too many licensing rules are all about.

Rather than compete for customers, the Louisiana funeral industry sought to help its members by hurting the livelihood of 36 Benedictine monks and, in the process, prevent grief-stricken consumers from purchasing a casket for a loved one that provided comfort amid sorrow.

It took a five-year battle and legal expertise from the Institute for Justice to fend off this assault on economic freedom. "Our confidence never wavered that justice would be done, and we are especially gratified that the Court's decision will protect the economic liberty of other entrepreneurs in Louisiana and around the country," said Abbot Justin Brown, head of Saint Joseph Abbey, in an IJ Web release.

I first wrote about the monks' plight in 2010. Readers were incredulous that a state actively would seek to prevent people from being economic contributors to society. They particularly were galled that a religious order was the target. The circumstances of the Louisiana case indeed are distasteful. But the circumstances and motives of producers shouldn't matter when it comes to preserving economic opportunity, as long as they aren't committing fraud or endangering the public. The right to work and enjoy the fruits of one's labor is inherent in a free society.

Like Louisiana, North Carolina empowers protectionist licensing boards that regulate who can do what, and who can't. The John Locke Foundation's Jon Sanders recently noted that North Carolina licenses more than 150 occupations. Some licensing makes sense -- for example, licensing required of doctors and nurses. Their fields require detailed, precise, extensive knowledge the great majority of the public doesn't possess, won't learn through life experience, and for which the consequences of malpractice are life-threatening.

An appropriate licensing umbrella does not include regulating who can legally tell people to eat meat rather than carbs. Carolina Journal has reported for months on just such a case involving diet blogger Steve Cooksey's battle with the North Carolina Board of Dietetics/Nutrition.

Cooksey is a true believer in a diet that's low in processed food and sugar, and high in meat and vegetables. He says this diet has helped control his diabetes. Thus, he's recommended the diet on his blog. Enter the licensing board, which contends Cooksey is practicing nutrition without a license. With the help of IJ, Cooksey sued the board for violating his right to free speech. Incredibly, the board won the case in U.S. District Court. A judge ruled Cooksey hadn't yet been injured by the government's crackdown on his desire to tell anyone who would listen that he thought meat was good for one's health.

The judge's rationale didn't sit well with IJ attorney Paul Sherman.

"You don't need the government's permission to give someone ordinary advice, and we will take Steve's case all the way to the Supreme Court if that's what it takes to vindicate free speech and Internet freedom," said Sherman in an IJ Web release.

Today in North Carolina, however, the government's permission is exactly what's required of anyone who wants to recommend a diet publicly. The fact that a state licensing board has this kind of power should give every North Carolinian a serious case of heartburn.

Donna Martinez is co-host of Carolina Journal Radio.