Debate continues on funeral home restrictions

Clark Neily, senior attorney for the Arlington, Va.-based Institute for Justice, called the Maryland Mortician Act “the most protective law in the country” during a hearing before U.S. District Judge Richard D. Bennett.

The Institute for Justice represents a group that says it can?t break into Maryland?s funeral-home business and has filed suit against the Maryland State Board of Morticians.

The plaintiffs claim the law violates the Equal Protection, Due Process and Commerce clauses of the U.S. Constitution.

The law allows licensed morticians, licensed funeral directors and the surviving spouses or executors of the estate of deceased morticians to own and operate funeral homes.

Maryland is one of three states that restricts funeral homeownership, Neily said.

While corporations are prohibited from operating funeral businesses, a grandfather clause in the law permits 58 corporations that held a state-issued license in June 1945 to be exempt from the law.

The 58 licenses, 30 of which are owned by out-of-state corporations, can be sold to people who are not licensed morticians. A license will cost about $200,000, Neily said.

“They have to play a waiting game to acquire a corporate license,” Neily said.

With limited competition, studies have shown a funeral costs $800 more than the national average cost, Neily said.

Kathleen Ellis, an attorney representing the board of morticians, couldn?t verify the finding.

“I think it?s completely irrelevant, and I have no idea if it?s accurate or not,” Ellis said.

The law has been discussed for nearly 10 years, Ellis said, but the state legislature has left the law alone, Ellis said.

“Maybe the law should be changed, but the legislature has decided not to change it,” Ellis said. “It?s for the legislature to decide how certain occupations can be practiced.”

Bennett expects to issue a written decision by the end of the week, said Jeff Rowes, an attorney with Institute for Justice.

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