Joanne Benson
2007-11-14 08:00:00.0
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BALTIMORE -

A few years ago, my sister Mary Watson lost a cherished family business — a funeral home that had served generations of African-American families — because Maryland law would not let her capable son, Lewis Jr., take over the business after she became too ill to run it herself. The State Board of Morticians would not let Mary turn the funeral home over to Lewis because he is not a licensed mortician, even though the Board will let anyone with one of 58 special licenses, which you can buy on the open market for about a quarter-million dollars, own a funeral home.

Because neither she nor Lewis could afford one of these special licenses, and because she could not find a licensed mortician to buy her traditionally African-American funeral home, Mary had to liquidate the business’s assets piecemeal at a huge loss to her family and to the black community her business had so faithfully served.

As a delegate in the Maryland General Assembly, this injustice inspired me to try to reform Maryland’s absurd laws on funeral home ownership, which are virtually unique in the nation and, because they prevent honest competition, drive up the average cost of a funeral by as much as $800. I expected reform to sail through, but the State Board of Morticians, which is dominated by licensed morticians, and the Maryland State Funeral Directors Association did what special interests do: They launched a massive counterattack to preserve their special privileges and kept my reform bill from ever getting out of committee. This was an object lesson in how the rich and influential get what they want while the public winds up a big loser.

I was therefore delighted when four courageous entrepreneurs, with the help of the nonprofit law firm Institute for Justice, sued in federal court, arguing that Maryland’s funeral home ownership law, which does nothing to protect the community, violated their constitutional right to earn an honest living in the occupation of their choice. This right is one of our most important civil rights, and something that African Americans in particular have struggled mightily to protect.

Justice seemed to have been done two weeks ago when the judge ruled that Maryland’s “blatantly anti-competitive” law was unconstitutional because it did nothing but help licensed funeral directors line their pockets at the expense of the public. It was not clear, however, whether the judge instructed Maryland to truly open the funeral home market to all entrepreneurs or whether he ruled more narrowly.

I urge the judge to clarify his ruling to make it clear that anyone should be able to own a funeral home as long as he or she properly employs a licensed mortician to oversee the business. Lewis was perfectly capable of running our family business and hiring a licensed mortician. His right to work in the occupation of his choice was denied for no good reason.

As important as this constitutional victory is, we in the General Assembly also need to take responsibility for allowing this law, and others like it, to remain on the books for so long. Our job as legislators is not to help, but to be on guard against, special interests that just want us to pass restrictive laws that make it easier for them to make money.

The right to earn an honest living, which is the basis of our ability to care for ourselves and our families, should not depend on whether special interests want to keep an occupation to themselves. This is not to say, of course, that we should avoid licensing requirements where they genuinely protect public health and safety by keeping out unqualified people. But too often the public-spirited arguments we hear just hide a desire by special interests for laws that benefit their members and no one else.

Though too late to help my sister and her entrepreneurial son, I hope the judge’s ruling will enable others to pursue their American dreams and remind us in the General Assembly that we must work everyday to preserve, and not undermine, all of our civil rights.

Joanne Benson is a Democratic Maryland State Delegate representing the 24th Legislative District. She may be reached at joanne.benson@house.state.md.us.