Conaway v. Deane
Conaway v. Deane
Opinion of the Court
Frank Conaway, Clerk of the Circuit Court for Baltimore City, and other circuit court clerks throughout Maryland (“the Clerks”) denied marriage licenses to certain same-sex couples. The Clerks denied those applications pursuant to Maryland Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201 (hereinafter “Family Law § 2-201”).
FACTUAL BACKGROUND
The factual background, much like challenges to similar state marriage statutes in other jurisdictions, is undisputed. Maryland law provides that no individuals may marry “in this State without a license issued by the clerk for the county in which the marriage is performed.” Md.Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-401(a). In order to apply for such a license, at least one of the parties to the marriage must appear before the clerk of the circuit court for that county and, under oath, provide the following information: (1) the full name of each party; (2) the residence of each party; (3) each party’s age; (4) the degree of consanguinity, if any, between the parties; (5) the marital status of each of the parties; and (6) the social security number of each party. Md.Code (1957, 2006 RepLVoL), Family Law Article, § 2-402(b). If, while questioning an applicant, “the clerk finds that there is a legal reason why the applicants should not be married, the clerk shall withhold the license unless ordered by the court to issue the license.” Md.Code (1957, 2006 Repl. Vol.), Family Law Article, § 2-405(e).
Eighteen of the Appellees here are nine same-sex couples who, at various times in June and July 2004, sought marriage licenses in Baltimore City and several counties in Maryland. The nineteenth Respondent is a homosexual male who expressed a wish to apply in the future for a marriage license.
Appellees filed on 7 July 2004 a Complaint for Declaratory and Injunctive Relief, naming as defendants Frank Conaway; Rosalyn Pugh, Clerk of the Circuit Court for Prince George’s County; Evelyn Arnold, Clerk of the Circuit Court for St. Mary’s County; Dennis Weaver, Clerk of the Circuit Court for Washington County; and Michael Baker, Clerk of the Circuit Court for Dorchester County.
Three motions to intervene were filed subsequent to the filing of Appellees’ complaint. Robert P. Duckworth, Clerk of the Circuit Court for Anne Arundel County, was the first to file a motion to intervene as a defendant. Mr. Duckworth contended that, as a county circuit court clerk, a decision in favor of the Plaintiffs-Appellees would create uncertainty with regard to the discharge of his job duties, and would subject him to potential civil and criminal litigation in the future discharge of those duties. Duckworth v. Deane, 393 Md. 524, 530-31, 903 A.2d 883, 887 (2006) (describing the procedural history of the litigation to that point in time). Eight members of the Maryland General Assembly likewise attempted to intervene as defendants, claiming that, as members of the Legislature, their legislative authority included the power to regulate marriage in the State of the Maryland. Duckworth, 393 Md. at 532, 903 A.2d at 887. A judicial decision invalidating the marriage statute, according to the legislators, would be a “judicial encroachment” upon their legislative authority in violation of the separation of powers principles in Article 8 of the Maryland Declaration of Rights. Duckworth, 393 Md. at 532, 903 A.2d at 887-88. The third motion to intervene was filed in proper person by Toni Marie Davis, a resident of Baltimore City. Ms. Davis asserted that because “the homosexual lifestyle [was] against [her] religion,” allowing same-sex marriage would, in essence, burden unconstitutionally her First Amendment right to practice her religion. Duckworth, 393 Md. at 532-33, 903 A.2d at 888. The motions were denied by the Circuit Court and the interveners each noted appeals to the Court of Special Appeals. We issued, on our initiative, a writ of certiorari on 17 December 2005 before the intermediate appellate court decided the appeal. Duckworth v. Deane, 384 Md. 448, 863 A.2d 997 (2004). For reasons not pertinent to the merits before us now, this Court, after briefing and oral argument, affirmed on 28 July 2006 the Circuit Court’s deci
After the motions to intervene were denied, the parties filed cross-motions for summary judgment, pursuant to Maryland Rule 2-501. The Appellees supported their motion with a series of exhibits and declarations by the various plaintiffs and others.
She granted, therefore, Appellees’ motion for summary judgment, denied Appellants’ cross-motion, and entered summary judgment in favor of the same-sex couples. The Circuit Court, pursuant to Maryland Rule 2-632, stayed enforcement of its ruling pending the resolution of the expected appeal and because of the potential consequences of the ruling on circuit court clerks’ offices throughout the State.
STANDARD OF REVIEW
Any party to an action may file a motion for summary judgment, pursuant to Maryland Rule 2-501(a), if it is claimed that there exists no genuine dispute as to any material
“ ‘Maryland appellate courts, as a general rule, will consider only the [legal] grounds upon which the [trial] court relied in granting summary judgment.’ ” Ross v. State Bd. of Elections, 387 Md. 649, 667, 876 A.2d 692, 702 (2005) (quoting Eid v. Duke, 373 Md. 2, 10, 816 A.2d 844, 849 (2003)); Miller, 393 Md. at 632, 903 A.2d at 945 (“ ‘An appellate court ... examines the same information from the record and determines the same issues of law as the trial court.’ ” (quoting PaineWebber, Inc. v. East, 363 Md. 408, 413, 768 A.2d 1029, 1032 (2001))); Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 729 (2001) (quoting PaineWebber, 363 Md. at 422, 768 A.2d at 1036). This premise is only valid, however, when “there are two or more separate and distinct grounds for the grant of summary judgment, and the trial court relies on one, but not another, in granting summary judgment.” Ross, 387 Md. at 667, 876 A.2d at 702-03. Thus, if two or more similar and “inextricably intertwined” grounds for summary judgment exist, this Court may consider alternatively any related
DISCUSSION
I. Claim of Sex-based Discrimination Under Article 46 of the Declaration of Rights
Appellees assert that, because Family Law § 2-201 excludes same-sex couples from marriage, the statute draws an impermissible classification on the basis of sex, in violation of Article 46 of the ERA. Specifically, Appellees reason that “[a] man who seeks to marry a woman can marry, but a woman who seeks to marry a woman cannot. Similarly, a woman who seeks to marry a man can many, but a man who seeks to marry a man cannot.” Thus, because Family Law § 2-201 allows opposite-sex couples to marry but, at the same time, necessarily prohibits same-sex couples from doing so, the
Appellees’ argument, at first glance, is beguiling. They point to several Maryland precedents that, if viewed literally, appear to support the proposition that a statute receives strict scrutiny analysis under Article 46 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review. See Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037 (1998) (“[S]ex is not, and can not be, a factor in the enjoyment or the determination of legal rights.”) (citing Rand v. Rand, 280 Md. 508, 513, 374 A.2d 900, 902-03 (1977) and Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971)); Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 63-64, 501 A.2d 817, 822 (1985) (Burning Tree I) (“[S]ex is not a permissible factor in determining the legal
A. The Legislative History of the Maryland Equal Rights Amendment indicates that the ERA was intended to combat discrimination between men and women as classes.
The Maryland General Assembly, in 1972, ratified overwhelmingly a proposed Federal Equal Rights Amendment,
The official legislative history, at least for the Maryland ERA, is not particularly instructive as to discrete legislative intent because legislative bill files were not retained systematically by the General Assembly’s Standing Committees or the Department of Legislative Reference (now known as the Department of Legislative Services) until 1975. Resources useful in determining the purpose of pre-1975 legislative action are therefore limited to selected committee bill files (which do not exist for the ERA), the Legislative Council Reports to the General Assembly for 1941-1976 (which do not
Laws While Not Facially Sexually Discriminatory are Sexually Discriminatory in their Application or Effect: The Commission had as a precedent the considerable body of federal and state law which has declared that laws which are unoffensive facially are nevertheless racially discriminatory in their application. An example is the Supreme Court decision which outlaws literacy tests because they disproportionately exclude racial minorities. The Commission, therefore sought to identify laws, practices and procedures which in application has a disproportionately adverse affect on the sex [ (women) ] which has traditionally been victim of discrimination.
Governor’s Comm’n to Study Implementation of the Equal Rights Amendment, Final Report to the Governor 11 (1979).
In addition to documents originating from executive agencies created to study the effects of the newly passed equal rights amendment, various newspaper accounts from the period of time surrounding the 1972 electoral vote on Article 46 shed light on the intended scope of the proposed amendment. On Monday, 23 October 1972, the Washington Post published a staff-written compendium entitled Maryland Voters to Decide on Constitutional Changes, which described the various proposed amendments to the Maryland Constitution. According to the article, the
amendment, sponsored by a majority of the legislators, would be effective immediately with referendum approval and would, at the least, place the state Constitution in*250 agreement with the U.S. Constitution in assuring equal rights for men and women.
This amendment is often referred to as a “women’s rights” measure, but it also would assure men that they could not be discriminated against because of their sex.
This amendment and the pending amendment to the U.S. Constitution are likely eventually to have a far-reaching impact on court decisions in the areas of family and domestic relations laws dealing with such matters as child custody, alimony and paternity cases.
Douglas Watson, Maryland Voters to Decide on Constitutional Changes, Wash. Post, 23 October 1972, at B4 (emphasis added); see also 18 Referendum Issues Confront Voters, The News Am., 24 October 1972, at 3-A (“The amendment is often referred to as a ‘women’s rights’ measure, but it also would assure men that they could not be discriminated against because of their sex.”); Barry C. Rascovar, Feminists find new foes of ballot question, Balt. Sun, 31 October 1972, at C24 (describing the lack of male opposition to the women’s liberation movement’s efforts to pass the Maryland ERA). While these are but a few examples of the newspaper accounts originating around the time the ERA was ratified by the Maryland voters, they represent accurately the bulk of the articles of the time on that subject, and reinforce that the primary purpose of the ERA was to eliminate discrimination as between men and women as a class.
Because the 1972 General Assembly considered in tandem the proposed federal and Maryland amendments, we find instructive also the objectives revealed by the legislative history of the federal initiative. Introduced originally in 1923 by the National Women’s Party, the proposed federal amendment was introduced at every legislative session during the mid-20th century. Renee Feinberg, the Equal Rights Amendment 16 (1986). It was not until 1972 that the proposed federal amendment, introduced to the 92nd Congress as House Joint Resolution (HJR) No. 208 by Representative Martha W. Griffiths (Michigan) and propelled significantly by the women’s rights movement occurring during that time, passed Congress
In the House of Representatives, for example, there was much discussion of the intended scope of the proposed federal amendment. During a hearing before the House Committee on Rules, in requesting that HJR 208 be considered by The Committee of the Whole of the House on the State of the Union, Representative Thomas Phillip “Tip” O’Neill, Jr. (Dem., Massachusetts), then a member of the Committee on Rules, stated:
As a group, women have been victims of wide discrimination. In many States they are denied educational opportunities equal to those for men. In some States they are not allowed to manage their own property and a wife has fewer property rights.
Our legal system currently contains the vestiges of a variety of ancient common law principles which discriminate unfairly against women. This legislation would clarify the intent of the Congress that all irrational discrimination on the basis of sex be eliminated.
117 Congr. Rec. 35289 (daily ed. 6 October 1971) (statement of Rep. O’Neill). During that same hearing, Representative John B. Anderson (Rep., Illinois) commented:
Indeed, we are being called upon today to do the chivalrous thing—to redress a wrong out of fairness and respect for women. We are being called upon once and for all to make women equal under the law of the land—remove the last vestiges of their second-class citizenship from the books.
117 Congr. Rec. 35290 (daily ed. 6 October 1971) (statement of Rep. Anderson).
During the floor debate in the House, in opposing the addition of the Wiggins Amendment
It is clear that there is flagrant discrimination against women in this country—in employment opportunities, in the ownership of private property, in education, in a variety of Federal benefits such as social security and retirement and in numerous other areas of American society. This discrimination exists at all levels—Federal, State, and local and in both the public and private sector.
Although some advances have been made in the past, there is still much to be done and meaningful and effective steps must be taken to insure that women enjoy the same rights and privileges which are now generally available to men. Existing constitutional provisions and various court decisions have failed to provide equal rights for women and we cannot depend on piecemeal legislative measures to achieve this goal. In order to avoid any undue delays or possible erroneous interpretations, a comprehensive effort is required and I believe a constitutional amendment is the most appropriate and effective device for securing equal rights for all citizens, regardless of sex.
117 Congr. Rec. 3580 (daily ed. 12 October 1971) (statement of Rep. Badillo). Many comments of similar substance appear throughout the discussion in the House, regardless of whether a particular Representative was speaking in favor of or in opposition to the Wiggins Amendment.
The Senate debate concerning the proposed equal rights amendment contains sentiments consistent with that of the House. When discussing the issue on 22 March 1972, for example, Senator Charles H. Percy (Rep., Illinois) stated:
Even among the [proposed amendment’s] opponents, there seems to be little question but that tradition and law have worked together to relegate women to an inferior status in our society. In many cases this has been inten*253 tional, based on an archaic precept that women, for physiological or functional reasons, are inferior. This concept has lead to the implementation of laws that prohibit [among other things] women from engaging in certain businesses, managing their own properties and finances, entering into legal contracts, holding jobs which they are deemed incapable of performing, actively competing in public and private educational institutions for a quality education, and serving on a jury.
118 Congr. Rec. 9595 (daily ed. 22 March 1972) (statements of Sen. Percy). Senator Percy concluded his statements by quoting Susan B. Anthony and articulating that
[n]either does the equal rights amendment lessen or demean the importance of women as wives, mothers, and mainstays of the home. Equality does not imply sameness. While the family structure is at the heart of our society and this legislation does nothing to disrupt that notion, we must recognize that women of today are different, they are aware of and willing to accept their responsibilities as citizens in a modern society and ought to be free to accept those responsibilities much as they are free to remain in the home if that is their choice.
Today we will truly acknowledge that equality can no longer be legally conditioned upon sex, that women, as they assume new roles in our society, deserve as a matter of law equal treatment under the law.
Id. at 9596.
Speaking directly on the point of the proposed amendment and its effects on marriage between members of the same sex, it was contended by Senator Birch Evans Bayh II (Dem., Indiana) during the Senate debate that
[t]he equal rights amendment would not prohibit a State from saying that the institution of marriage would be prohibited to men partners. It would not prohibit a State from saying the institution of marriage would be prohibited to women partners. All it says is that if a State legislature makes a judgment that it is wrong for a man to marry a*254 man, then it must say it is wrong for a woman to marry a woman-or if a State says it is wrong for a woman to marry a woman, then it must say that it is wrong for a man to marry a man.
118 Congr. Ree. 9881 (daily ed. 21 March 1972) (statements of Sen. Bayh).
B. Maryland precedent interpreting generally Article 46 indicates that the ERA was intended to combat discrimination between men and women as classes.
This Court has had the opportunity on several occasions to examine the historical underpinnings of the ERA. Since the passage, ratification, and promulgation of Article 46 in 1972, our applications of the ERA indicate that its primary purpose was to remedy the long history of subordination of women in this country, and to place men and women on equal ground as pertains to the enjoyment of basic legal rights under the law.
In virtually every case where this Court had the occasion to consider Article 46, the challenged classification drew clear lines between men and women as classes. In Burning Tree I, for example, the primary question before the Court was whether deferred State real property tax assessments given to a private country club that, according to the club’s bylaws, expressly prohibited women from membership was violative of Article 46. 305 Md. at 58-59, 501 A.2d at 819-20.
[t]hat equal rights amendments to state constitutions were prompted by a long history of denial of equal rights for women is well recognized. As the commentators have indicated, the subordinate status of women in our society has for all too many years been firmly entrenched in our legal system, with women being excluded by law from various rights, obligations or responsibilities.
Burning Tree I, 305 Md. at 63-64, 501 A.2d at 822 (citing Barbara A. Brown et al., The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971)).
Consistent with this underlying purpose of the ERA, we held in Rand v. Rand, 280 Md. 508, 515-16, 374 A.2d 900, 905 (1977), that the “ ‘broad, sweeping, mandatory language’ of the [ERA] is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the [ERA] in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classification.” (quoting Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 889 (1975)); see also Giffin v. Crane, 351 Md. 133, 151, 716 A.2d 1029, 1038 (1998). In Rand, we considered the validity of a judgment of the Court of Special Appeals allocating child support obligations based, for the most part, on the sex of the parents. Despite the common law rule at the time that a father primarily was responsible for support of children born during the marriage, Rand, 280 Md. at 510-11, 374 A.2d at 902 (internal citations omitted), we concluded that, in light
The common law rule is a vestige of the past; it cannot be reconciled with out commitment to equality of the sexes. Sex of the parent in matters of child support cannot be a factor in allocating this responsibility. Child support awards must be made on a sexless basis.
Rand, 280 Md. at 516, 374 A.2d at 905; cf. Boblitz v. Boblitz, 296 Md. 242, 245, 273, 462 A.2d 506, 507, 521 (1983) (abrogating the common law doctrine of inter-spousal immunity
Appellees turn to Giffin for the proposition that “sex is not, and cannot be, a factor in the enjoyment or the determination of legal rights.” 351 Md. at 148, 716 A.2d at 1036. As with the other cases relied on by Appellees, we conclude, upon reflection, that Giffin does not support their argument as mounted. In Giffin, the primary issue was whether the Court
Viewing the reasoning of Giffin in its context, it is clear that the Court’s statement that “sex is not, and cannot be, a factor” related- to distinctions drawn between men and women as classes. See Giffin, 351 Md. at 149, 716 A.2d at 1037 (“[T]he equality between sexes demanded by the Maryland [ERA] focuses on ‘rights’ of individuals ‘under the law,’ which encompass all forms of privileges, immunities, benefits and responsibilities of citizens.”) (citing Burning Tree I, 305 Md. at 70, 501 A.2d at 825) (emphasis added). In other words, the grant of child custody no longer could be based on pre-conceived notions, based solely on the parents’ sex, concerning the care a certain parent was capable of providing.
Virtually every Maryland case applying Article 46 has dealt with situations where the distinction drawn by a particular governmental enaction or action singled-out for disparate
[t]he cases construing equal rights amendments share a common thread; they generally invalidate governmental action which imposes a burden on one sex but not the other, or grants a benefit to one but not the other....
Burning Tree I, 305 Md. at 70, 501 A.2d at 825; see also Burning Tree I, 305 Md. at 65-66, 501 A.2d at 823-24 (“That the [ERA] is essentially limited in its scope to unequal treatment imposed by the law as between the sexes is clear from our cases.”).
Turning to the language of Family Law § 2-201, it becomes clear that, in light of the aforementioned purpose of the ERA, the marriage statute does not discriminate on the basis of sex in violation of Article 46. The limitations on marriage effected by Family Law § 2-201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct. A legislative enactment “should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation.” Massage Parlors, Inc. v. Mayor & City Council of Balt., 284 Md. 490, 494, 398 A.2d 52, 55 (1979) (quoting Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976)). To accept Appellees’ contention that Family Law § 2-201 discriminates on the basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assembly and the
C. Interpretations Given Equal Rights Amendments By Other Jurisdictions In Similar Situations.
Perhaps most persuasive here is the growing body of case law from foreign jurisdictions flatly rejecting the argument that statutes that limit marriage to unions between a man and woman discriminate impermissibly on the basis of sex. Rand, 280 Md. at 512, 374 A.2d at 903 (“Cases from other state jurisdictions interpreting the breadth and meaning of their equal rights amendments are instructive in ascertaining the reach of Maryland’s [ERA].”).
The Court of Appeals of Washington, in Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974), was one of the first appellate courts to weigh-in on same-sex marriage in light of the then-newly promulgated ERA. There, the court held that
[p]rior to adoption of the ERA, the proposition that women were to be accorded a position in the law inferior to that of men had a long history. Thus, in that context, the purpose of the ERA is to provide the legal protection, as between men and women, that apparently is missing from the state and federal Bills of Rights, and it is in light of that purpose that the language of the ERA must be construed. To accept the [same-sex couples’] contention that the ERA must be interpreted to prohibit statutes which refuse to permit same-sex marriages would be to subvert the purpose for which the ERA was enacted by expanding its scope beyond that which was undoubtedly intended by the majority of the citizens of this state who voted for the amendment.
Singer, 522 P.2d at 1194. The majority of federal and state courts called on to consider analogous legal challenges since then have disposed of equal rights challenges in a similar
The Supreme Court of Vermont, in Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999), despite holding unconstitutional the exclusion of same-sex couples from the various benefits and protections that accompany marriage, rejected the argument that a statute limiting marriages to those between a man and woman constitutes sex-based discrimination. As the Vermont court stated, “[t]he difficulty here is that the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.” Baker, 744 A.2d at 881 n. 13. Because there is no “discrete
D. Individuality of Rights Argument Presented by Appellees
Appellees counter the “equal application theory” by stating that the proper inquiry in this case is not whether Family Law § 2-201 singles out one sex or the other as a discrete class for disparate treatment. Rather, because constitutional rights are individual rights, the same-sex couples posit that this Court should examine how the legislative enactment affects individually each person seeking to marry. Appellees rely principally in support of this argument on Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the landmark U.S. Supreme Court equal protection case in which the Court held unconstitutional a Virginia miscegenation statute despite the fact that the statute “punish[ed] equally both the white and the Negro participants in an interracial marriage.”
We must concede at the outset that the mere equal application of a statute does not shield automatically a discriminatory statute from constitutional review under either the Equal Protection Clause of the Fourteenth Amendment, the equal protection provisions embodied in Article 24 of the Maryland Declaration of Rights,
In Loving, the issue before the Court was the constitutionality of a Virginia statutory scheme prohibiting marriage between non-Caucasians and Caucasians, and providing for criminal penalties for violations. In support of the statute, the State of Virginia argued that, even though reference was made to race in determining who was entitled to marry, it punished equally both participants in the interracial marriage. Loving, 388 U.S. at 8, 87 S.Ct. at 1821, 18 L.Ed.2d 1010. The Supreme Court was able to see beyond the superficial neutrality of the legislative enactment, however, and determined that “[t]he fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.” Loving, 388 U.S. at 11, 87 S.Ct. at 1823, 18 L.Ed.2d 1010. Thus, the Court in Loving determined that, although the statute applied on its face equally to all races, the underlying purpose was to sustain White Supremacy and to subordinate African-Americans and other non-Caucasians as a class. The reasoning behind this conclusion was based, at least in part, on the fact that “[w]hile Virginia prohibits whites from marrying any nonwhite ..., Negroes, Orientals, and any other racial class may intermarry without statutory interference.” Loving, 388 U.S. at 11 n. 11, 87 S.Ct. at 1823 n. 11, 18 L.Ed.2d 1010.
II. Standards of Constitutional Review for Article 24 Challenges based on the Concepts of Substantive Due Process and Equal Protection.
In addition to Appellees’ claim that Family Law § 2-201 discriminates on the basis of sex in violation of Article 46, the same-sex couples seeking to marry challenged Family Law § 2-201 as violative of Article 24 of the Maryland Declaration of Rights.
Before proceeding, we pause to reiterate the three levels of constitutional scrutiny employed in our jurisprudence when a legislative enactment is challenged under either the due process or equal protection concepts embedded in Article 24. As we explained in Waldron, “[t]he top tier of [constitutional] review contemplates that when a statute creates a distinction based upon clearly ‘suspect’
In contrast, we generally employ the least exacting and most deferential standard of constitutional review when the legislative action under review neither interferes significantly
A third level of review has arisen to leaven the rigid two-tiered constitutional framework by which courts review the constitutionality of government action. See Waldron, 289 Md. at 708-10, 426 A.2d at 942-44. A “heightened” level of scrutiny, otherwise known as “intermediate scrutiny,” is triggered when the challenged action creates a classification “which ha[s] been subjected to a higher degree of scrutiny than the traditional and deferential rational basis test, but which ha[s] not [yet] been deemed to involve suspect classes or fundamental rights.” Murphy, 325 Md. at 357-60, 601 A.2d at 109-11 (explaining the Supreme Court’s evolving application of “heightened scrutiny” or “rational basis with bite” to certain “intermediate” classifications);
A. A Statute That Discriminates on the Basis of Sexual Orientation Does Not Trigger Strict or Heightened Scrutiny.
While Family Law § 2-201 does not draw a distinction based on sex, the legislation does differentiate implicitly on the basis of sexual preference. “Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage.” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 11. See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“While it is true that the law [making it criminal for two consenting adults to engage in homosexual sodomy in the privacy of their own home] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the statute] is targeted at more than conduct. It is instead directed toward gay persons as a class.”) (O’Connor, J., concurring). That Family Law § 2-201 draws a distinction based on sexual orientation is undisputed. The actual controversy here, therefore, is what level of constitutional scrutiny should be applied to a statute that treats citizens differently on that basis (i.e., whether sexual orientation constitutes a suspect or quasi-suspect class, thereby triggering one of the heightened levels of scrutiny iterated above). Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 11. We find that sexual orientation is neither a suspect nor quasi-suspect class, and Family Law § 2-201 therefore is subject to rational basis review. We explain.
There is no brightline diagnostic, annunciated by either this Court or the U.S. Supreme Court, by which a suspect or quasi-suspect class may be recognized readily. There are, however, several indicia of suspect or quasi-suspect classes that have been used in Supreme Court cases to determine whether a legislative classification warrants a more exacting constitutional analysis than that provided by rational
Although the Supreme Court has characterized repeatedly as suspect classes distinctions based on race,
The majority of other courts, both federal and state, that have addressed the issue hold that gay, lesbian, and bisexual persons neither are members of suspect nor quasi-suspect classifications. See, e.g., Selland v. Perry, 905 F.Supp. 260 (D.Md. 1995), aff'd, 100 F.3d 950 (4th Cir. 1996) (applying Maryland law in order to uphold the constitutionality of the military’s “Don’t Ask, Don’t Tell” provisions regarding homosexuality, and determining that equal protection does not mandate strict scrutiny); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[H]omosexuals are not a suspect or quasi-suspect classification.”); In re Kandu, 315 B.R. at 143-44 (following the Ninth Circuit’s decision in High Tech Gays, and determining that the Lawrence Court, while “indicating a shift in the Supreme Court’s treatment of same-sex couples,” did not declare same-sex couples a suspect or quasi-suspect class for the purposes of equal protection analysis) (quoting Lawrence, 539 U.S. at 579-81, 123 S.Ct. at 2485, 156 L.Ed.2d 508 (O’Connor, J., concurring) (applying a rational basis standard of constitutional review to the Texas sodomy statute prohibiting sexual conduct between two persons of the same sex)); Wilson v. Ake, 354 F.Supp.2d 1298, 1307 (2005) (“[Hjomosexuality is not a suspect class that would require subjecting [the Florida Defense of Marriage Act] to strict scrutiny under the Equal Protection
Homosexual persons have been the object of societal prejudice by private actors as well as by the judicial and legislative branches of federal and state governments. Gay, lesbian, and bisexual persons likewise have been subject to unique disabilities not truly indicative of their abilities to contribute meaningfully to society. For a significant period of American history, homosexual persons generally were not the object of regulatory focus because sexual and gender orientations differing from “traditional” sexual preferences were not well conceptualized by the public until after the Civil War. William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 1 (1999) (recounting in great detail the genesis of the treatment of gay, lesbian, bisexual, and transgender persons in American society); Lawrence, 539 U.S. at 568-69, 123 S.Ct. at 2478-79, 156 L.Ed.2d 508 (describing succinctly the early history of laws directed at homosexual conduct, and explaining that the “concept of the homosexual as a distinct category of person did not emerge until the late 19th century”) (citations
By the turn of the twentieth century, most medical professionals accepted the “degeneracy” theory of homosexuality. Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va.L.Rev. 1551, 1555 (1993). This theory was based primarily on the notion that homosexuality was an inheritable genetic trait, and that the “disease” could be treated through “aversion therapy, castration, and other radical ‘cures,’ rather than decriminalization.” Id. at 1555, 1555 n. 21 (citing John D’Emilio, Sexual Politics, Sexual Communities 15 (1983); David F. Greenberg, The Construction of Homosexuality 397-433(1988); Jonathon, Katz, Gay American History 129-207 (rev. ed 1992)); see Eskridge, Jr., supra, at 50 (quoting U.S. Army Surgeon General, “Disposition of Overt Cases of Homosexuality,” Army Bulletin No. 66, April 1943, pt. E, at 83 (1943) (explaining that rather than court-martial those who engage in single-sex sodomy, homosexual persons should be “reclaimed” through medical treatment)). Those who spoke out publicly in favor of gay and lesbian rights during the “Red Scare” of the late 1910s to early 1920s were branded as communists, denaturalized, and deported to the Soviet Union. Cain, supra, at 1555-56. In the 1950s, the Senate Investigations Subcommittee of the Committee on Expenditures in the Executive Department found that “homosexuals and other sex perverts” were unsuitable for employment by the federal government primarily because “[t]hose who engage[d] in overt acts of perversion lack[ed] the emotional stability of normal persons. In addition there [was, according to the Subcommittee,] an abundance of evidence to sustain the conclusion that indulgence in acts of sex[ual] perversion weakenfed] the moral fiber of an individual to a degree that he [was] not suitable for a position of responsibili
The 1946 elections saw the beginning of a national homosexual “Kulturkampf,” a period spanning from 1946 to 1961, in which it is believed that as many as a million gay and lesbian persons were prosecuted criminally under statutes aimed at prohibiting consensual same-sex adult intercourse (both public and private), kissing, holding hands, or other forms of “public lewdness.” Eskridge, Jr., supra, at 60-67. Some states, namely New Jersey, Florida, California, and New York, prohibited establishments with state-issued liquor licenses from knowingly serving alcohol to homosexual persons. Eskridge, Jr., supra, at 78-80. In the wake of Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and until the Supreme Court’s decision in Lawrence v. Texas, it was not unconstitutional under the Fourteenth Amendment for a state to enact legislation making it a crime for two consenting adults of the same sex to engage in sexual conduct in the privacy of their home. See Lawrence, 539 U.S. at 575, 123 S.Ct. at 2482, 156 L.Ed.2d 508 (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”).
As stated by the Surgeon General,
[O]ur culture often stigmatizes homosexual behavior, identity and relationships. These anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health, including a greater incidence of depression and suicide, lower self-acceptance and a greater likelihood of hiding sexual orientation.... In their extreme form, these nega*285 tive attitudes lead to [anti-gay] violence. Averaged over two dozen studies, 80 percent of gay men and lesbians had experienced verbal or physical harassment on the basis of their orientation, 45 percent had been threatened with violence, and 17 percent had experienced a physical attack.
U.S. Dep’t of Health & Human Servs., The Surgeon General’s Call to Action to Promote Sexual Health and Responsible Sexual Behavior (9 July 2001) (letter from the Surgeon General), at http://www.surgeongeneral.gov/library/sexualhealth/call. html.
It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society. The State, furthermore, has not provided evidence to the contrary in the present case, arguing instead that, because every other jurisdiction, both before and after Lawrence, rejected the notion that homosexuals are a suspect class, so should Maryland. While other jurisdictions’ dispositions of equal protection claims similar to the one advanced in the present case are persuasive and reinforce our own analysis, we do not accept them simply as conclusive. This Court nevertheless finds that, in light of the other indicia used by this Court and the Supreme Court in addressing equal protection claims, a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation.
In spite of the unequal treatment suffered possibly by Appellees and certainly a substantial portion of other citizens similarly situated, we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to “extraordinary protection from the majoritarian political process.” To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian, and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of government.
Evolutionary legal developments highlighting changing views toward gay, lesbian, bisexual, and transgender persons are not limited to statutory and regulatory enactments. In terms of Supreme Court jurisprudence, one of the most important cases is Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). This case dealt with a Colorado voter-adopted amendment to the State’s Constitution that “preclude[d] all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationship.’ ” Romer, 517 U.S. at 620, 116 S.Ct. at 1621-22, 134 L.Ed.2d 855. In other words, the amendment sought to preclude the Colorado legislature from enacting any statute that provided for protection from discrimination on the basis of sexual orientation. The Court struck down the statute as unconstitutional, under rational basis review, as a violation of the Fourteenth Amendment. In Lawrence, 539 U.S. at 565, 560, 123 S.Ct. at 2476, 2475, 156 L.Ed.2d 508, the Court overturned Bowers v. Hardwick and concluded that the Fourteenth Amendment to the U.S. Consti
The body of Maryland appellate opinions addressed to the rights and interests of gay, lesbian, bisexual, and transgender persons is substantial. Boswell v. Boswell, 352 Md. 204, 237-238, 721 A.2d 662, 678 (1998) (holding that, in the context of visitation rights of a non-custodial parent, “[this Court] make[s] no distinctions as to the sexual preference of the noncustodial parent whose visitation is being challenged. The only relevance that a parent’s sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children’s emotional and/or physical well-being”); State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004) (extending battered spouse syndrome to abusive situations within same-sex couples); North v. North, 102 Md.App. 1, 12, 648 A.2d 1025, 1031 (1994) (deciding that the sexual orientation of a non-custodial parent is not a proper basis for the denial of visitation rights, and placing emphasis on whether such visitation rights were in the “best interests of the child” and whether there was a showing of actual harm to the child by granting visitation, rather than focusing on the “perceived harms” to the child of exposing it to a homosexual lifestyle); Gestl v. Frederick, 133 Md.App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000) (determining that the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by the biological mother’s former same-sex partner under the Uniform Child Custody Jurisdiction Act); Lapides v. Trabbic, 134 Md.App. 51, 54, 758 A.2d 1114, 1115 (2000) (rejecting a father’s tort cause of action against his ex-wife’s same-sex domestic partner on the basis that she interfered with and caused harm to his relationship with his daughter to which he had joint custody); S.F. v. M.D., 132 Md.App. 99, 102, 110, 751 A.2d 9, 10, 14-15 (2000) (holding that the former domestic partner of a biological
While gay, lesbian, and bisexual persons in recent history have been the target of unequal treatment in the private and public aspects of their lives, and have been subject to stereotyping in ways not indicative of their abilities, among other things, to work and raise a child, recent legislative and judicial trends toward reversing various forms of discrimination based on sexual orientation underscore an increasing political coming of age. The relevant decisions from other jurisdictions recognize this. Andersen, 138 P.3d at 974-75 (“The enactment of provisions providing increased protection to gay and lesbian individuals in [the State] shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendment [in Washington prohibiting discrimination on the basis of sexual orientation] is particularly significant.... We conclude that plaintiffs have not established that they satisfy the [political powerlessness] prong of the suspect classification test.”); see also High Tech Gays, 895 F.2d at 573-74 (concluding, independent of reliance on Bowers, that, “[w]hile we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria [for being a suspect or quasi-suspect classification],” and determining that “legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation though the passage of anti-discrimination legislation. Thus, homosexuals are not without political power
The term “immutability” defines a human characteristic that is determined “solely by the accident of birth,” Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 (explaining that “sex, like race and national origin, is an immutable characteristic [that is] determined solely by the accident of birth,” and that defines a particular group), or that the possessor is “powerless to escape or set aside.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S.Ct. 2733, 2784, 57 L.Ed.2d 750 (1978) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972)). See also Plyler v. Doe, 457 U.S. 202, 216-17 n. 14, 102 S.Ct. 2382, 2394-95 n. 14, 72 L.Ed.2d 786 (1982) (“Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”). Based on the scientific and sociological evidence currently available to the public, we are unable to take judicial notice that gay, lesbian, and bisexual persons display readily-recognizable, immutable characteristics that define the group such that they may be deemed a suspect class for purposes of determining the appropriate level of scrutiny to be accorded the statute in the present case.
Appellees rely on Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), for the proposition that sexual orientation is a suspect classification because it is defined by a characteristic that people “should not be required to change because [it is] fundamental to ... individual identities or consciences.” The Ninth Circuit indeed held there that “[s]exual orientation and sexual identity are immutable; [and that] they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel, 225 F.3d at 1093 (indexing numerous studies that have concluded that sexual orientation is determined at an early age and engrained in an individual’s personality). Despite the Ninth Circuit’s conclusion in that
Beyond their reliance on Hemandez-Montiel and two Maryland cases that discuss, in the abstract, inherently suspect classifications and immutability, see Ehrlich v. Perez ex rel. Perez, 394 Md. 691, 718-19, 908 A.2d 1220, 1236-37 (2006) (discussing alienage as an inherently suspect classification); In re Heilig, 372 Md. 692, 697-710, 816 A.2d 68, 71-79 (2003) (discussing the concept of gender in the context of transsexuals and how, as medically possible, the outward and physical manifestations of gender may be changed), Appellees point neither to scientific nor sociological studies, which have withstood analysis for evidentiary admissibility, in support of an argument that sexual orientation is an immutable characteristic.
IV. The Right to Same-Sex Marriage is Not so Deeply Rooted in the History and Tradition of this State or the Nation as a Whole Such That it Should be Deemed Fundamental.
Appellees contend next that Family Law § 2-201 is subject to strict scrutiny because it burdens significantly their fundamental right to marry guaranteed by the due process protections of Article 24. First defined federally by the Supreme Court in 1937, fundamental rights are those privileges and immunities that are “so rooted in the traditions and conscience of our people” that they are considered “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)
We employ a very similar definition for determining what constitutes a fundamental right for state constitutional analysis. Sites v. State, 300 Md. 702, 716, 481 A.2d 192, 199 (1984) (defining fundamental rights as those that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental or implicit in the concept of ordered liberty”); Waldron, 289 Md. at 715, 426 A.2d at 947 (characterizing the rights protected by Article 24 as “those recognized as vital to the history and traditions of the people of this State”); Samuels v. Tschechtelin, 135 Md.App. 483, 537, 763 A.2d 209, 238 (2000) (quoting Glucksberg, 521 U.S. at 720-21, 117 S.Ct. at 2268, 138 L.Ed.2d 772). In determining whether an asserted liberty interest constitutes a fundamental right, we look not to our “personal and private notions” of what is fundamental, but rather to the “traditions and [collective] conscience of our people.” Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). Our task in the present case, therefore, is to determine objectively whether the right to marry another person of the same sex is so deeply rooted in the history and tradition of this State, as well as the Nation as a whole, that “neither liberty nor justice would exist if it were sacrificed.” Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268, 138 L.Ed.2d 772.
It is undisputed that the right to marry, in its most general sense, is a fundamental liberty interest that goes to the core of what the U.S. Supreme Court has called the right to “personal autonomy.” See, e.g., Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 2807, 120 L.Ed.2d 674 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). This right to personal privacy was recognized formally by the U.S. Supreme Court in Griswold where it struck down, as an intrusion upon the constitutionally protected right to marital privacy, a ban on the use of contraceptives by married heterosexual couples. The Court reasoned that there are zones of privacy created by the guarantees of the Bill of Rights that serve “as [a] protection against all government invasions ‘of the sanctity of a man’s home and the privacies of life.’ ” Griswold, 381 U.S. at 484, 85 S.Ct. at 1681, 14 L.Ed.2d 510 (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). Other rights considered fundamental under this general right to personal autonomy are those decisions relating to child-bearing,
Determination of whether there is a fundamental right to enter into a same-sex marriage, however, does not end with a brief invocation of the cases outlining the importance of marriage generally and the other liberty interests that make
Appellees argue that we should not be concerned with whether the Court should recognize a new fundamental right to same-sex marriage, but instead should focus on whether the existing fundamental right to marriage should be extended to include same-sex couples. Specifically, Appellees seek a dec
In support of their argument, Appellees rely principally on Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Edüd 1010 (1967) (holding that the fundamental right to marriage encompasses the right marry the person of one’s choosing, even if that person is of a different race); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); and, through reference to other cases that cite it, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 1113-14, 86 L.Ed. 1655 (1942). We find that, while these cases certainly establish generally the fundamental nature of the right to marry, they do not represent a compelling basis to extend the fundamental right to include same-sex marriage. All of the cases infer that the right to marry enjoys its fundamental status due to the male-female
Appellees rely on Loving for the proposition that, despite the long history of prohibition against interracial marriages, the Supreme Court declared in that case that the right to marry was constitutionally guaranteed to different-race couples just as it was available to single-race couples, Loving, 388 U.S. at 12, 87 S.Ct. at 1823, 18 L.Ed.2d 1010, thereby declaring that the proper inquiry in the case was whether the right itself had been historically enjoyed rather than who had historically enjoyed it. We disagree.
The basis for the Supreme Court’s decision as to the interracial couples’ due process challenge was that “[mjarriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Id. (emphasis added) (citing Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655 (“Marriage and procreation are fundamental to the very existence and survival of the race.”)) (emphasis added). As our peers on other courts have stated, “[wjhether the Court [in Skinner ] viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental. This is hardly surprising inasmuch as none of the United States sanctioned any other marriage configuration at the time.” Baehr, 852 P.2d at 56; Standhardt, 77 P.3d at 458 (stating that “[ijmplicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman,” and concluding that, “while Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the opposite sex.”); Dean, 653 A.2d at 332-33 (holding that the right to marriage is deemed fundamental because of its link to procreation).
Long ago, in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the Court characterized marriage as “the most important relation in life,” [125 U.S. at 205, 8 S.Ct. at 726, 31 L.Ed. 654], and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” [125 U.S. at 211, 8 S.Ct. at 729, 31 L.Ed. 654], In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, [262 U.S. at 399, 43 S.Ct. at 626, 67 L.Ed. 1042], and in Skinner v. Oklahoma ex rel. Williamson, supra, ... marriage was described as “fundamental to the very existence and survival of the race,” [316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655],
Zablocki, 434 U.S. at 384, 98 S.Ct. at 680, 54 L.Ed.2d 618; see also Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 56 (1993). In Boddie, 401 U.S. at 376, 381-82, 91 S.Ct. at 785, 788, 28
The one exception is Turner v. Safley. In that case, the Supreme Court struck down as unconstitutional a Missouri Division of Corrections regulation that precluded an inmate from marrying unless he or she received permission from the superintendent, and only upon a finding that there was a “compelling reason” for the marriage. Turner, 482 U.S. at 78, 107 S.Ct. at 2256-57, 96 L.Ed.2d 64. The term “compelling reason” was not defined by the regulation, but prison officials testified at trial that the only reason deemed compelling was the pregnancy of the woman to be married or the birth of a child out of wedlock. Turner, 482 U.S. at 82, 107 S.Ct. at 2258, 96 L.Ed.2d 64. The Court concluded that the fundamental right to marriage recognized in Zablocki applied to prison inmates just as it applied to non-incarcerated individuals. Turner, 482 U.S. at 95, 107 S.Ct. at 2265, 96 L.Ed.2d 64. Among several reasons given for application of Zablocki to the issues at bar was that “most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.” Turner, 482 U.S. at 96, 107 S.Ct.
It is beyond doubt that the right to marry, in the abstract, is a fundamental right recognized by both the Federal and this State’s Constitutions. While we deem fundamental this latitudinously-stated right to marry, it is nevertheless a
The principle of defining precisely the asserted liberty interest is not limited to the analytical context of marriage. When the scope of an asserted liberty interest becomes relevant to determining the fundamental nature of that right, we have sought to define narrowly that right and identify precisely the group asserting the liberty interest. In Suessmann v. Lamone, 383 Md. 697, 862 A.2d 1 (2004), for example, unaffiliated registered voters filed suit in the Circuit Court for St. Mary’s County “seeking declaratory and injunctive relief from the allegedly unconstitutional exclusion of unaffiliated voters from the Democratic and Republican Parties’ primary elections for circuit court judicial candidates.” 383 Md. at 704, 862 A.2d at 5. Judges were chosen in a general election to which the judges gained access by securing placement on the ballot through victory in either of the primary elections held by the Democratic and Republican parties. Suessmann, 383 Md. at 704-05, 862 A.2d at 5. The State argued in that case, and we agreed, that “the mere fact a law imposes a burden on the right to vote does not mean the law must be subjected to strict scrutiny.” Suessmann, 383 Md. at 729-30, 862 A.2d at 20. Rather than framing the constitutional issue in terms of the generally stated fundamental right to vote, we reviewed the election laws narrowly, and in terms of whether “the State
Our task, therefore, is to determine whether the right to same-sex marriage is so deeply embedded in the history, tradition, and culture of this State and Nation that it should be deemed fundamental. We hold that it is not.
It is well-established that the concepts of equal protection and due process embodied in Article 24, similar to the Fourteenth Amendment, are viewed as somewhat flexible and dynamic in order to accommodate advancements in the contemporary political, economic, and social climate. As we have stated,
while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee. Thus, while we may not depart from the Constitution’s plain language, we are not bound strictly to accept only the meaning of the language at the time of adoption.... Thus, we construe the Constitution’s provisions to accomplish in our modern society the purposes for which they were adopted by the drafters.
Benson v. State, 389 Md. 615, 632-33, 887 A.2d 525, 535 (2005) (citations omitted); see also Lawrence, 539 U.S. at 579, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (“As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”). Mere acquiescence for any length of time, however, will not serve as an adequate foundation for the constitutionality of a particular legislative enactment. We therefore consider the current economic, political, and social climate in order to determine whether same-sex marriage is a fundamental right.
There is no doubt that the legal landscape surrounding the rights of homosexual persons is evolving. A trend toward gay, lesbian, and bisexual persons gaining more rights seems evident within Maryland, see generally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a “Sexual Orientation-Blind” System in Maryland and the Recognition of Same-Sex Marriage, 35 U. Balt. L.Rev. 73, 75-92 (2005) (cataloging recent trends toward
The breadth of precedent, particularly Romer and Lawrence, falls short of establishing as deeply rooted the concept of same-sex marriage. In Romer, while the Supreme Court held that it was unconstitutional for Colorado to amend its constitution to preclude state legislative enactments protecting from discrimination based on sexual orientation, the Court did so on the basis of equal protection. The Court determined, furthermore, that a “disadvantage imposed [that] is born of animosity toward the class of persons affected,” thereby reflecting “a bare ... desire to harm a politically unpopular
Nor does Lawrence establish as deeply rooted the right to same-sex marriage. First, while the Court in that case overturned Bowers and declared unconstitutional the Texas statute on the basis that “[the law and traditions in the past half century] show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 571-72, 123 S.Ct. at 2480, 156 L.Ed.2d 508, it did so on what appears to be rational basis review. 539 U.S. at 579, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”) (emphasis added). Nor did the Court in that case state expressly that the right to sexual intercourse between two individuals of the same-sex was fundamental. Lawrence, 539 U.S. at 586, 123 S.Ct. at 2488, 156 L.Ed.2d 508 (Scalia, J., dissenting) (“Though there is discussion of ‘fundamental proposition^],’ ..., and ‘fundamental decisions,’ ..., nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ ”). If the Court in Lawrence was unwilling to declare that the right of
Indeed, the Supreme Court in Lawrence, after declaring unconstitutional the Texas statute that forbade same-sex intimate conduct, held that
[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Lawrence, 539 U.S. at 578-79, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (emphasis added). Lawrence does not establish a fundamental right to same-sex marriage. Several of the holdings by other courts that have addressed the issue are in accord. See, e.g., Standhardt, 77 P.3d at 456-57 (determining that the Supreme Court’s holding in Lawrence cannot be interpreted to provide for same-sex marriage); Wilson, 354 F.Supp.2d at
We are unwilling to hold that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland. Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268, 138 L.Ed.2d 772. Even a quick glance at the laws of Maryland indicate that this State has long regarded marriage as a union between a man and a woman. The consanguinity statute, for example, addresses only those marriages with a certain degree of blood relation as between members of the opposite sex. Family Law § 2-202. The statutory scheme regulating dealings between spouses refers to the parties in terms of a “married woman” and “her husband.” Family Law §§ 4-201 to 4-205. Family Law § 4-301, furthermore, involves liabilities for, and protection from, the obligations of a spouse. The statute addresses only those liabilities as between “husband” and “wife.” These are only a few of the examples of Maryland family law statutes that recognize sex-specific language when referring to the marital relationship. The point is that despite the long-established presence of Family Law § 2-201, the laws of our State historically, and continue to, employ sex-specific language that reflects Maryland’s adherence to the traditional understanding of marriage as between a man and woman.
In spite of the changing attitudes about what constitutes a “nuclear family,” Congress, as well as nearly every state in the Nation, has taken legislative action or otherwise enacted constitutional amendments limiting explicitly the institution of marriage to those unions between a man and a woman.
We are not unmindful of the fact that the relationships gay, lesbian, and bisexual persons seek to enter involve intimate and private decisions that extend to the core of the right to personal autonomy. Those decisions do not necessarily require us or the State to recognize formally those relationships in the form of State-sanctioned marriage. That a liberty interest such as the argued-for right to marry a person of the sex of one’s choosing, even if assumed to be important, does not render automatically fundamental that liberty interest. Glucksberg, 521 U.S. at 727-28, 117 S.Ct. at 2271, 138 L.Ed.2d 772; Hornbeck, 295 Md. at 649, 458 A.2d at 786 (‘Whether a claimed right is fundamental does not turn alone on the relative desirability or importance of that right.”). When dealing in the realm of due process, furthermore, we are hesitant to recognize new fundamental rights, especially when the Supreme Court has either failed or declined to do so. “[W]here social or economic legislation [such as the regulation of marriage] is involved, ... [we] have generally avoided labeling a right as fundamental so as to avoid activating the
Y. Family Law § 2-201 Comports with Notions of Rational Basis Review.
Because Family Law § 2-201 does not discriminate on the basis of sex, burden significantly a fundamental right, or otherwise draw a classification based on suspect or quasi-suspect criteria, rational basis review is the correct standard of constitutional review under which we consider the Maryland marriage statute. Under that standard,
the State[] [is afforded] a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended*316 only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. [The General Assembly is] presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
McGowan, 366 U.S. at 425-26, 81 S.Ct. at 1105, 6 L.Ed.2d 393; Murphy, 325 Md. at 355, 601 A.2d at 108 (“[A] court ‘will not overturn’ the classification ‘unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude the [governmental] actions were irrational.”). Rational basis review “does [not] authorize ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam)); Md. Aggregates Ass’n, Inc. v. State, 337 Md. 658, 655 A.2d 886 (1995) (“ ‘[C]ourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ ”) (citations omitted). Thus, Family Law § 2-201 is presumed constitutional, and the burden is on Appellees to establish the unconstitutionality of the statute. Whiting-Turner Contracting Co., 304 Md. at 352, 499 A.2d at 185 (holding that a statute reviewed under the “rational basis” test “enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary”). This burden requires Appellees to “‘negative every conceivable basis which might support [the statute],’ whether or not the basis has a foundation on the record.” Heller, 509 U.S. at 320-21, 113 S.Ct. at 2643, 125 L.Ed.2d 257 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)).
We agree that the State’s asserted interest in fostering procreation is a legitimate governmental interest. As one of the fundamental rights recognized by the Supreme Court as a matter of personal autonomy, procreation is considered one of the most important of the fundamental rights. Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655 (“Marriage and procreation are fundamental to the very existence and survival of the race.”) (emphasis added); Zablocki, 434 U.S. at 386, 98 S.Ct. at 681, 54 L.Ed.2d 618 (“It is not surprising that the decision to marry has been placed in the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of family in our society.”); Meyer, 262 U.S. at 399, 43 S.Ct. at 626, 67 L.Ed. 1042 (recognizing that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause). In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest.
The question remains whether there exists a sufficient link between an interest in fostering a stable environment for procreation and the means at hand used to further that goal,
Appellees urge in response, quite convincingly, that Family Law § 2-201 is not related rationally to the governmental objective of fostering optimal relationships for procreation because it is at once over-inclusive and under-inclusive. Appellees argue that it is overinclusive because children may be born into same-sex relationships through alternative methods of conception, including surrogacy, artificial insemination, in vitro fertilization, and adoption. The statute is also under-inclusive, according to Appellees, because not all opposite-sex couples choose to bear children, or are able to do so because of infertility or otherwise. Lastly, Appellees posit that the marriage statute is not linked sufficiently to the interests in procreation because allowing same-sex couples to marry will not impact interests in procreation in that “[o]pposite-sex couples will continue to bring children into their families through ‘traditional’ procreation regardless of whether same-sex couples are permitted to marry.”
The statistics are not limited to households in which children live with one or both biological/genetic parents. Indeed, reports from the U.S. Census Bureau show that of the 72.1 million children in the United States in 2000, only 68 percent live in a married couple family home. Terry Lugalia, Julia Overturf, U.S. Census Bureau, Children and the Households They Live In: 2000, CENSR-14, at 8 (2004), available at http://www.census.gov/prod/2004pubs/censr-14.pdf (hereinafter “Children and the Households They Live In ”). Four million, four hundred thousand children (6.1% of the total
A legislative enactment reviewed under a rational basis standard of constitutional review need not be drawn with mathematical exactitude, and may contain imperfections that result in some degree of inequality. Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 644-45, 837 A.2d 931, 944 (2003) (“[A] state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ”) (citations omitted); Whiting-Turner, 304 Md. at 352, 499 A.2d at 185 (“[A] classification [subject to rational basis review] having some reasonable basis need not be made with mathematical nicety and may result in some inequality”). Looking beyond the fact that any inquiry into the ability or willingness of a couple actually to bear a child during marriage would violate the fundamental right to marital privacy recognized in Griswold, 381 U.S. at 484-86, 493, 85 S.Ct. at 1681, 14 L.Ed.2d 510, the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation. In such a
Because Family Law § 2-201 does not abridge the fundamental right to marriage (as we understand that right), does not discriminate on the basis of sex in violation of Article 46, and does not otherwise implicate a suspect or quasi-suspect class, the marriage statute is subject to rational review. As such, it carries a strong presumption of constitutionality. Under rational review, “[w]here there are ‘plausible reasons’ for [the General Assembly’s] action, ‘our inquiry is at an end.’ ... [Rationale basis review] is a paradigm of judicial restraint. ‘The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that the judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (citations omitted). In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED; STAY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DECLARE CONSTITUTIONAL THE STATUTE AT ISSUE AND TO DENY INJUNCTIVE RELIEF TO APPELLEES. COSTS TO BE PAID BY APPELLEES.
BELL, C.J., and BATTAGLIA, J., Dissent.
. Md.Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201, provides that “[o]nly a marriage between a man and a woman is valid in this State.”
. Article 46 of the Maryland Declaration of Rights (“Article 46”) states that "[ejquality of rights under the law shall not be abridged or denied because of sex.”
. Article 24 of the Maryland Declaration of Rights ("Article 24’’) states that "no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”
. The nine same-sex couples who applied for marriage licenses are as follows: Gitanjali Deane and Lisa Polyak; Charles Blackburn and Glen
. Although Lestitian has not applied for a marriage license, he plans to do so in the future and, according to Appellees, the Clerk of the Circuit Court for Washington County would deny his application under the current statutory scheme. There is scant doubt about the accuracy of this prediction.
. Through the efforts of Appellees’ counsel, we are directed to 339 Maryland laws that provide for benefits, conditioned on marital status, which grant rights and responsibilities to married couples, to the effective exclusion of same-sex couples. They include, but are not limited to, the areas of taxation, business regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding spousal health care, insurance, labor and employment, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements. This is but a partial list of the benefits provided in Maryland to married couples and denied to same-sex couples prohibited from marriage.
In terms of federal benefits, the Government Accounting Office (GAO) compiled in 1997, and updated in 2004, a list of federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. According to the study, there were 1,138 federal statutes providing such benefits. A.B.A. Sec. of Fam L., A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 38 Fam. L.Q. 339, 366, n. 98 (citing Report No. 04-353R (4 January 2004), available at http://www.gao.gOv/new.items/d 04353r.pdf). Although disposition of the present case would have no effect on Appellees’ eligibility for those federal benefits under the Federal Defense of Marriage Act, it illustrates the current regulatory landscape regarding same-sex marriage and the marital benefits from which Appellees are excluded.
The privileges that accompany marriage, according to Appellees, are not limited to demonstrable statutory benefits. Same-sex couples suffer, it is proffered, various intangible harms, which include the stigma
. Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-202.
. Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-301.
. Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-402(b)(l)(v)-(vi).
. According to the record, four of the couples reside in Baltimore City; three couples reside in Prince George's County; one member of another couple resides in St. Mary's County, while the other member resides in Costa Rica; Mr. Lestitian resides in Washington County; and one couple resides in Dorchester County.
. Appellees filed a motion to strike the accompanying declarations of Lisa Ayers, Esquire; Judith Stacey, Ph. D; Nancy F. Cott, Ph.D; and, M.V. Lee Badgett, Ph. D. These declarations purported to be expert opinions debunking the General Assembly's assumed factual underpinnings for Family Law § 2-201. The trial judge granted Appellants' motion as to the declaration of Ms. Ayers.
. Maryland Rule 2—632(f) provides that "[w]hen an appeal is taken from an order or a judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the adverse party.” Although the record is unclear whether this Rule was relied on as the basis for the grant of the stay, the validity of the stay is unchallenged here.
. If Family Law § 2-201 discriminates on the basis of sex, as the Appellees assert, this Court would examine the statute with the strictest of scrutiny. Tyler v. State, 330 Md. 261, 266, 623 A.2d 648, 651 (1993) (holding that, "because of Article 46 of the Maryland Declaration of Rights, sex-based classifications are suspect and are subject to strict scrutiny”); Murphy v. Edmonds, 325 Md. 342, 357 n. 7, 601 A.2d 102, 109 n. 7 (1992) (holding that classifications based on sex are suspect and subject to strict scrutiny review under the Equal Rights Amendment of Article 46); State v. Burning Tree Club, Inc., 315 Md. 254, 295-96, 554 A.2d 366, 387 (1989) (“Burning Tree II"). If it is determined that Family Law § 2-201 does not draw a sex-based classification, however, our cases instruct us to analyze the constitutionality of the statute under rational basis review. See Murphy, 325 Md. at 355-56, 601 A.2d at 108-09 (1992) (holding that statutory classifications that do not affect a suspect or quasi-suspect class are subject to rational basis review, and will be upheld so long as the statute is rationally related to a legitimate governmental purpose).
Judge Battaglia's dissent goes to great lengths to explain that "[t]he majority in the present case fails to recognize that Burning Tree II clearly adopted strict scrutiny as the standard in ERA cases.” Judge Battaglia's Dissent op. at 383, 932 A.2d 670. To the contrary, the Majority recognizes that strict scrutiny should be applied when the ERA is implicated. But in order for strict scrutiny to be the approach standard, it must first be found that the statute discriminates on the basis of sex. We conclude that it does not.
. As will be described infra, each case relied on by Appellees in support of their argument involved legislative classifications that gave certain rights to an entire class of men or women, to the exclusion of the opposite sex. The classifications in those cases are so obviously sex-based that they are of negligible value in demonstrating the invalidity of a statute such as Family Law § 2-201 that, on its face, applies equally to the members of both sexes.
. Originally introduced in 1923 to Congress by the National Women’s Party, Renee Feinberg, The Equal Rights Amendment 16 (1986), the proposed federal equal rights amendment, upon which the Maryland counterpart was based, was proposed in every Congressional session since then and through the 1971 Ninety-Second session. Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J.Women & L. 113, 116 (1997). "Propelled by a wave of political support for women's rights reform, the amendment passed Congress by an overwhelming majority----” Id. The proposed amendment passed in the House by a vote of 354 to 24 and in the Senate 84 to 8. 117 Cong. Rec. 35,815 (1971); 118 Cong. Rec. 9598 (1972). Three-quarters of the States (38 at the time) were required to
. The proposed federal amendment read in pertinent part: "SECTION 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Proposed Amendment to the United States Constitution, H.R.J. Res. 208, 92d Cong., 2d Sess., 86 Stat. 1523 (1972).
. As we have stated in the past,
[i]f the text [of a constitutional provision] is ambiguous, the Court should first endeavor to ascertain its meaning from other parts of the instrument. It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid. When that becomes necessary, however, it is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereby....
Reed v. McKeldin, 207 Md. 553, 560-61, 115 A.2d 281, 285 (1955) (emphasis added).
We are mindful, however, of pitfalls and limitations in relying on contemporary newspaper'accounts in interpreting legislative intent. In re Jason W., 378 Md. 596, 607-11, 837 A.2d 168, 175-78 (2003) (Harrell, J., concurring) (stating that, on the “rare occasion[] when it is appropriate for a court to consider, to some degree, relatively contemporaneous relevant newspaper articles in ascertaining the legislative intent of an enactment of comparable vintage ..., the use of newspaper accounts should be approached with caution and selectivity,” and cataloging cases from various jurisdictions in which courts have declined to consider contemporaneous newspaper articles as conclusive evidence of legislative intent); see also Hornbeck, 295 Md. at 661, 458 A.2d at 792 (Cole, J., dissenting) (“Newspaper articles ... are hardly the most reliable sources for extrapolating legislative intent; they certainly are not adequate substitutes for cogent analysis of the purpose of a provision as discerned from its historical context and basic goals.”). We consider the contemporaneous newspaper accounts here
. The Wiggins Amendment provided for an additional clause in the proposed ERA that stated that "[t]his article shall not impair the
. In Burning Tree I, the preferential tax assessment was conditioned upon the club’s compliance with an anti-discrimination clause in the statutory scheme granting the tax benefits, which read, in pertinent part, as follows:
In order to qualify under this section, the club shall not practice or allow to be practiced any form of discrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons. The determination as to whether or not any club practices discrimination shall be made by the Office of the Attorney General after affording a hearing to the club. The provisions of this section with respect to discrimination in sex shall not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or*255 benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times.
Burning Tree I, 305 Md. at 57-58, 501 A.2d at 819 (emphasis added). Central to the plurality opinion of this Court that the statute violated the Maryland Declaration of Rights, was the ‘‘primary purpose” qualification to the anti-discrimination provision emphasized in italics above. Based on this "primary purpose” provision, the Attorney General found that the club did not discriminate on the basis of sex because the club, pursuant to the statute, operated for the “primary purpose” of benefit-ting one sex, namely men. Burning Tree I, 305 Md. at 59, 501 A.2d at 820.
. Respected commentators such as Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman, have discussed the intended scope of the Equal Rights Amendment. In their oft-cited law review article, the authors examined generally the need for an equal rights amendment:
An amendment that deals with all sex discrimination, and only sex discrimination, corresponds roughly to the boundaries of a distinct and interrelated set of legal relationships.... [A] woman’s status before the law in one area, such as employment, relates both practically and theoretically to her status in other areas, such as education or responsibility for family support. Coming to grips with the dynamics of discrimination against women requires that we recognize the indications of, the excuses for, and the problems presented by women’s inferior status. An understanding of these dynamics in any one field informs and enlightens understanding of sex bias elsewhere in the law. This is because, in the past, the legal and social systems have been permeated with a sometime inchoate, but nevertheless pervasive, theory of women’s inferiority.
without a constitutional mandate, women’s status will never be accorded the special concern which race now receives because of the history of the Fourteenth Amendment. For these reasons it is important to have a constitutional amendment directed to this specific area of equality, out of which a special body of new law can be created.
Id. (emphasis added).
. In Burning Tree II, two members of the country club attacked as unconstitutional a statute, enacted in response to Burning Tree I, that excluded from preferential tax treatment those clubs that discriminated on the basis of race, color, creed, sex, or national origin. 315 Md. at 261, 554 A.2d at 370. The plaintiffs in that case argued that the statute burdened unconstitutionally the club's First Amendment freedom of association and constituted a violation of Art. 1, § 10 (the Contract Clause) of the U.S. Constitution and Article III, § 33 of the Maryland Constitution. Burning Tree II, 315 Md. at 261-62, 554 A.2d at 370. This Court affirmed summarily the holdings of Burning Tree I that the discriminatory practices of the country club violated Article 46. Burning Tree II, 315 Md. at 263, 554 A.2d at 371.
. The common law doctrine of inter-spousal immunity barred a wife from bringing a cause of action, without her husband’s concurrence, in order to recover for losses sustained as a result of either person or property injury. Boblitz v. Boblitz, 296 Md. 242, 244, 462 A.2d 506, 507 (1983). In Boblitz, Ms. Lauretta Baseman-Boblitz was injured as a result of her husband's negligent operation of an automobile. Boblitz, 296 Md. at 243, 462 A.2d at 507. In that case, therefore, we were called upon to determine whether the common law doctrine remained viable, in light of Article 46, as an affirmative defense to an action arising in tort when the wife’s personal injury occurred as the result of negligence of her husband. Boblitz, 296 Md. at 244, 462 A.2d at 507. As Appellees point out, we held there that “any deprivation of rights based upon sex would contravene the basic law of this State.” Our decision to abrogate the common law doctrine, however, was based on the premise that such an archaic doctrine, founded entirely on the "derogation of married women,” Boblitz, 296 Md. at 245, 462 A.2d at 507, had no place in modern society. We find, therefore, that Appellees’ reliance on language parsed from Boblitz is misplaced.
. "Sitters” were individuals employed by a place of entertainment for the purpose of generating sales by circulating amongst the patrons in order to solicit them to purchase drinks or other items. Turner v. State, 299 Md. 565, 569, 474 A.2d 1297, 1298-99 (1984). In Turner, for example, the proprietor of a tavern required female dancers employed by the tavern to interact with patrons in order to "produce sales.” Turner, 299 Md. at 569, 474 A.2d at 1299.
. "Criminal Conversation,” at common law, was the act of adultery committed by a married woman. Kline v. Ansell, 287 Md. 585, 586-87, 414 A.2d 929, 929 (1980). Criminal conversation was actionable by a husband against the third party male who engaged in sexual intercourse with the married woman. Black’s Law Dictionary 402 (8th ed. 2004). Only a man could sue or be sued under the doctrine. Kline, 287 at 586-87, 414 A.2d at 929.
. The trend of this line of precedent, as our judicial peers in Vermont have indicated when similarly confronted, is consistent with the semi
. The dissent points out that a plurality of this Court in Burning Tree I rejected the "equal application” theory and attempts to label that
Burning Tree I concerned the constitutionality of a "primary purpose” qualification to an anti-discrimination provision upon which the receipt of preferential property tax assessments for private country clubs was based. The qualification provided that “[t]he provisions of the section [prohibiting discrimination on the basis of, among other characteristics,] sex shall not apply to any club whose facilities are operated with the primary purpose ... to serve or benefit members of a particular sex, nor to clubs which exclude certain sexes on certain days and at certain times.” Burning Tree I, 305 Md. at 57-58, 501 A.2d at 819. In other words, Burning Tree Club, an all-male country club, could discriminate against women based solely on their sex, yet still enjoy the preferential treatment pursuant to the "primary purpose” exemption, so long as the exclusion of women was total. Burning Tree I, 305 Md. at 58-59, 501 A.2d at 819-20. The circuit court held that the primary purpose provision, although gender neutral by its language, was discriminatory in its effect.
In Burning Tree I, Chief Judge Murphy, writing for two others, espoused a so-called "separate but equal” approach, 305 Md. at 79, 501 A.2d at 830, which provided essentially that, "[u]nder its terms, the primary purpose provision is sex-neutral because it operates without regard to gender.” Burning Tree I, 305 Md. at 71, 501 A.2d at 826. According to the Chief Judge, “the statute [did] no more than afford the tax benefit to all eligible private country clubs, whether comprised of all men, all women, or of mixed membership, in return for the club’s agreement to preserve its open spaces in the public interest.” Id. Because there was nothing in the statute to prohibit all-women clubs from forming and excluding all men from membership, while still enjoying the statute’s protections, Chief Judge Murphy and his two colleagues felt that the statute did not implicate the ERA. Burning Tree I, 305 Md. at 78, 501 A.2d at 830 ("The mere fact that Burning Tree is the only club presently qualifying under the primary purpose provision does not of itself change a sex-neutral statute into a nefarious state sponsored scheme to invidiously discriminate against women solely on account of their sex. Needless to say, [the statute] did not cause there to be no all-female country clubs.”). Chief Judge Murphy opined also that the State’s acquiescence in the country club’s discrimination did not amount to state action. Burning Tree I, 305 Md. at 76-77, 79, 501 A.2d at 828-29, 830. Recognizing, however, that his "separate but equal” approach was not going to command a majority of the Court, 305 Md. at 80, 501 A.2d at 830-31, Chief Judge Murphy opined that the primary purpose provision was not severable from the remainder of the anti-discrimination provision. Burning Tree I, 305 Md. at 81-84, 501 A.2d at 831-32.
Judge Eldridge, writing for himself and two other judges, disagreed completely with Chief Judge Murphy, opining that, "[i]f the views set forth in [the "majority’s”] opinion were in the future to be adopted by a majority of this Court, the effectiveness of the [E.R.A.] to the Maryland Constitution would be substantially impaired.” Burning Tree I, 305 Md. at 89, 501 A.2d at 835 (Eldridge, J., concurring in part, dissenting in part). Judge Eldridge took issue specifically with what he deemed to be the majority’s "separate but equal” approach that the "primary purpose” provision " '[did] not apportion or distribute benefits or burdens unequally among the sexes’ and ma[d]e[ ] the statutory 'benefit available to all single sex country clubs agreeing to participate in the State's open space program.' ” Burning Tree I, 305 Md. at 90-91, 501 A.2d at 836 (Eldridge, J., concurring in part, dissenting in part). Judge Eldridge criticized additionally Chief Judge Murphy’s opinion that "the express sanctioning of single sex clubs [did not] imposte] a burden upon the excluded sex, as long as the governmental action in theory equally sanctioned] discrimination by single sex facilities against persons of the other sex.” Burning Tree I, 305 Md. at 95, 501 A.2d at 838
The end result was a four member majority of concurring judges that the primary purpose provision constituted state action violative of the ERA. Because Chief Judge Murphy, joined by two other judges and Judge Rodowsky, were of the opinion that the primary purpose provision was not severable from the remainder of the anti-discrimination provision, the entire provision was invalidated.
Despite the dissent’s attempts here to turn Judge Eldridge's opinion into something it is not, the “narrow interpretation,” to which Judge Eldridge referred, pertained to Chief Judge Murphy’s proposed construction of the ERA requiring language of the challenged statute to single out, in express gender-specific terms, either "males” or "females.” Judge Eldridge's argument, in essence, was that, merely because the "primary purpose” provision did not refer either to "males” or "females” in gender-specific terms, that did not save the statute when it sanctioned total discrimination of one sex by members of the opposite sex. Burning Tree I, 305 Md. at 98-99, 501 A.2d at 835 (Eldridge, J., concurring in part, dissenting in part) ("The principal classification implicating the E.R.A. arises from the language authorizing clubs, totally segregated on the basis of sex, to maintain their discriminatory practices and, at the same time, to continue receiving significant state benefit. On the other hand, sexually integrated country clubs are generally precluded from discriminating on the basis of sex.”).
In sum, the opinions of Judges Eldridge and Rodowsky, which ultimately represented a plurality opinion of this Court, that the “primary purpose” provision was violative of the ERA, Burning Tree I, 305 Md. at 91 n. 5, 501 A.2d at 836 n. 5 ("In effect, the Court’s entire mandate in this case reflects the conclusions of only one member, Judge Rodowsky.”) (Eldridge, J., concurring in part, dissenting in part), was based on the fact that the statute allowed a club, whether comprised of all males or all females, to exclude all members of the opposite sex while still enjoying deferred assessments for the purposes of real estate taxation. Chief Judge Murphy’s "separate but equal” approach to interpreting the ERA, rejected by the plurality in Burning
. Burning Tree I, 305 Md. at 100, 501 A.2d at 841 (Eldridge, J., concurring in part and dissenting in part) ("Even when a statute is not facially discriminatory, or does not expressly draw or recognize a suspect classification, an inquiry into the actual facts, to determine the existence of a discriminatory purpose and impact, is appropriate.”) (citations omitted).
. Appellees rely additionally upon other cases containing reasoning similar to that in Loving. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (rendering unconstitutional a statute that made criminal the co-habitation between an African American and Caucasian person); Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948) (striking down California statute that prohibited interracial marriage).
Still other cases cited by Appellees, such as Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), clearly are distinguishable from the present case. In Shelley, the issue was whether a restrictive covenant prohibiting "persons of color” from real property ownership was violative of the Fourteenth Amendment to the U.S. Constitution. 334 U.S. at 4, 68 S.Ct. at 838, 92 L.Ed. 1161. Even though the defendants in that case argued that the covenant was applicable to members of all races (because the Court in previous cases was prepared to enforce similar restrictive covenants applicable to African Americans and Caucasians), Shelley, 334 U.S. at 21-22, 68 S.Ct. at 846, 92 L.Ed. 1161, the Court found no merit in the argument. We fail to see how a statute that so patently discriminated on the basis of race sheds any light on the present case.
Reliance upon Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) is likewise misplaced. In that case, the Supreme
part of the "baggage of sexual stereotypes,” Orr v. Orr, [440 U.S. 268, 283, 99 S.Ct. 1102, 1113], 59 L.Ed.2d 306 [(1979)], that presumes the father has the "primary responsibility to provide a home and its essentials,” Stanton v. Stanton, 421 U.S. 7, 10, 95 S.Ct. 1373, 1376, 43 L.Ed.2d 688 (1975), while the mother is the " 'center of home and family life.’ ” Taylor v. Louisiana, 419 U.S. 522, 534 n. 15, 95 S.Ct. 692, 699 n. 15, 42 L.Ed.2d 690 (1975).
Califano, 443 U.S. at 89, 99 S.Ct. at 2663, 61 L.Ed.2d 382. The distinction drawn by Family Law § 2-201 in the present case is not based on this sort of archaic stereotyping, and is therefore distinguishable from the federal statute at issue in Califano.
Appellees cite additionally Giffin and Burning Tree I in support of their argument. For the reasons stated earlier in this opinion, those cases also are distinguishable from the case at bar.
. See, e.g., Neifert v. Dep’t of Env’t, 395 Md. 486, 504, 910 A.2d 1100, 1111 (2006) ("Although Article 24 does not contain an express equal protection clause, this Court has held that the concept of equal protection is embodied within the Article.”); Frankel v. Bd. of Regents, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (internal citations omitted); Governor v. Exxon Corp., 279 Md. 410, 438 n. 8, 370 A.2d 1102, 1118 n. 8 (1977), aff'd, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).
. Although the Supreme Court in McLaughlin did not hold expressly that the latent purpose behind the cohabitation statute at issue was
[b]ecause the section applies only to a white person and a Negro who commit the specified acts and because no couple other than one made up of a white and a Negro is subject to conviction upon proof of the elements comprising the offense it proscribes, we hold [the statute] invalid as a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment.
McLaughlin, 379 U.S. at 184, 85 S.Ct. at 284, 13 L.Ed.2d 222.
. Judge Raker, in her Concurring and Dissenting Opinion, apparently concurs with the foregoing analysis and conclusion that the Maryland statute is not violative of Article 46 (the Equal Rights Amendment) of the Maryland Declaration of Rights.
. Article 24 of the Declaration of Rights provides
[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”
. As delineated previously, there is no express equal protection provision found within Article 24. Article 24 "embodies[, however,] the concept of equal protection of the laws to the same extent as the Equal
. The criteria by which we determine whether a statute draws a "suspect classification” or infringes on a "fundamental” right are discussed infra.
. For an in-depth discussion of whether a particular statute interferes “significantly’' with a fundamental right, see Koshko v. Haining, 398
. Although this Court has articulated over the years several derivations of the "rational basis” titling of this standard, the application of the constitutional standard has been the same across all derivations.
. As explained in Murphy, 325 Md. at 358-60, 601 A.2d at 109-10, the Supreme Court described these intermediate classifications in various ways over the years, ranging from subjecting the statute to “heightened scrutiny,’’ see Plyler v. Doe, 457 U.S. 202, 218 n. 16, 102 S.Ct. 2382, 2395 n. 16, 72 L.Ed.2d 786 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976); Mississippi University for
. Maryland, in light of the ERA, applies a strict scrutiny standard to statutes carving classifications based on sex whereas the Supreme Court applies intermediate scrutiny to sex-based governmental action. There are other areas, however, to which the Supreme Court has applied this intermediate level of scrutiny. Those specific areas triggering heightened scrutiny will be discussed infra.
. Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 ("[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility ....'”) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768 (1972)); see also Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L.Rev. 503, 507, 507 n. 11 (1994) ("[I]mmutability is not a requirement but a factor.”) (citing Bowen v. Gilliard, 483 U.S. 587, 602-03, 107 S.Ct. 3008, 3018, 97 L.Ed.2d 485 (1987)); Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d 527).
. United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84, 82 L.Ed. 1234 (1938); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).
. Mass. Bd. of Retirement, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d 520 (quoting San Antonio School District, 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d 16).
. Mass. Bd. of Retirement, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d 520; Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 (determining that sex-based classifications trigger heightened scrutiny, and that "the sex characteristic frequently bears no relation to ability to perform or contribute to society”). Even though Article 46 mandates that we apply strict scrutiny to gender-based classifications,
. E.g., Loving, 388 U.S. at 11, 87 S.Ct. at 1823.
. Graham, 403 U.S. at 372, 91 S.Ct. at 1852, 29 L.Ed.2d 534.
. Oyama v. California, 332 U.S. 633, 644-46, 68 S.Ct. 269, 274-75, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944).
. Appellees cite Tanner v. Oregon, 157 Or.App. 502, 971 P.2d 435, 447 (1998), and Children’s Hospital & Med. Ctr. v. Bonta, 97 Cal.App.4th 740, 118 Cal.Rptr.2d 629, 650 (2002), as authorities finding sexual orientation to be a suspect basis for classification. In Tanner, the Oregon Court of Appeals stated:
[W]e have no difficulty concluding that [lesbian and gay people] are members of a suspect class. Sexual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice.
Tanner, 971 P.2d at 447.
Reliance on these two cases is misplaced because both are distinguishable from the instant case or unpersuasive. Tanner involved an analysis pursuant to Oregon’s privileges and immunities clause, and does not compel a similar finding under our equal protection jurisprudence. See Andersen, 138 P.3d at 975 ("The [privileges and immunities clause] analysis bears little resemblance to the analysis that applies under the equal protection clause.”). Children’s Hospital likewise is distinguishable. While the California appellate court in that case stated that sexual orientation is a suspect classification subject to strict scrutiny, the issues did not pertain even remotely to gay and lesbian equal protection. Rather, the case involved a constitutional challenge to disparate reimbursement between in-state and out-of-state hospitals providing services under California's Medi-Cal system. The court tendered its suspect classification observation only in passing and without the benefit of any sort of supporting authority. Id. (distinguishing Children’s Hospital on the ground that it stated "only in passing, without authority, that the issue before [the California intermediate appellate court] did not relate to a suspect class 'such as race or sexual orientation.’ ”).
. We note that some cases upon which Appellants and other jurisdictions’ decisions have relied, were based, in part, on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). See e.g., High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (1990) (stating that, because sexual intimacy between same-sex
That Bowers was overturned by Lawrence, furthermore, does not compel recognition of sexual orientation as a suspect classification, as Appellees suggest. As our judicial peers in other jurisdictions have noted, the Court in Lawrence evaluated the Texas sodomy law on the basis that it did not comport even with rational basis review, but did not evaluate the statute in such a way that declared gay, lesbian, and bisexual persons as suspect classifications. See In re Kandu, 315 B.R. at 143-44; Andersen, 138 P.3d at 975-76.
. Appellees cite to several annual reports compiled by the Maryland Commission on Human Relations documenting yearly total reported instances of hate crimes and discrimination in the areas of employment, public accommodations, and housing. Of the total 511 hate-related incidents reported to the Commission for the 2006 fiscal year, 350 were race-based, while 37 were based on sexual orientation. Md Comm'n on Human Relations, 2006 Annual Report 18 (2006), at http://www.mchr. state.md.us/annrep2006.pdf. We find equally important, however, other statistics reported by the Commission in recent Annual Reports. In the 2005 Annual Report, the Commission included a table displaying the total reported instances of discrimination in housing, employment, and public accommodations according to various characteristics, including race, sex, sexual orientation, age, retaliation, disability, religion,
. For an in-depth discussion of the legislative and regulatory developments in Maryland addressing discrimination based on sexual orientation, see generally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a “Sexual Orientation-Blind" System in Maryland and the Recognition of Same-Sex Marriage, 35 U. Balt. L.Rev. 73, 75-92 (2005). While the goal of the article apparently was to highlight the legal landscape in Maryland regarding sexual orientation, and its probable amenability to the recognition of same-sex marriage, the trends presented there illustrate the evolving political influence that gay, lesbian, and bisexual individuals are exercising. See also Amer. Assoc, of Law Libraries, Social Responsibilities Special Interest Section, Standing Committee on Lesbian and gay Issues, Introduction of Sexual Orientation and the Law: A Research Bibliography Selectively Annotating Legal Literature Through 2005, at XXV("In the last twelve years, the exponential increase in judicial opinions and legislation regarding [Lesbian, Gay, Bisexual, and Transsexual] issues has been accompanied by a growth in favorable decisions and legislative enactments.").
. Md.Code (Supp. 2004), art. 49B, §§ 5(b), 8(a).
. Md.Code (2003), art. 49B §§ 16; Id. at § 14 ("It is hereby declared to be the policy of the State of Maryland, in the exercise of its police
. Md.Code (2003), art. 49B, §§ 22-24; Id. at § 19 ("It is the policy of the State of Maryland to provide for fair housing throughout the State of Maryland, to all its citizens, regardless of ... sexual orientation.”).
. Md. Regs.Code tit. 13A, § 01.04.03 ("All students in Maryland’s public schools, without exception and regardless of ... sexual orientation ... have the right to educational environments that are: A. Safe; B. Appropriate for academic achievement; and C. Free from any form of harassment.”).
. The statutes and regulations that follow in the main text are extracted from the briefs supplied by the parties and amici, and constitute only a portion of the anti-discrimination measures found within the State of Maryland’s statutes and regulations. For a full description of the various state and local enactments that prohibit discrimination on the basis of sexual orientation, see 35 U. Balt. L.Rev. 73, supra, at 86-90, 86 n. Ill (cataloging extensively Maryland regulations that eliminated sexual orientation discrimination in the administration of numerous public assistance programs and community development initiatives, and that prohibit such discrimination in the regulation of various business occupations and professions throughout the State).
. For a comprehensive list of Supreme Court, other Federal and State appellate court cases adjudicating gay and lesbian rights from 1981 to 2000, see Daniel R. Pinello, Gay Rights and American Law 167-213 (2003).
. The irony is not lost on us that the increasing political and other successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statute under review.
. No party addresses in its brief the immutability of sexual orientation and the implications of an answer to that query in determining the correct level of constitutional review to be applied to Family Law § 2-201. The issue of the immutability of sexual orientation, however, is the subject of a multitude of recent studies and nationwide debate. See J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives Gen’l Psychiatry 1089, 1093 (1991) (studying the similarities in sexual orientation between twin, non-twin, and adopted siblings, and concluding that identical twins are more likely than other types of siblings to have a similar homosexual orientation); Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu & Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X Chromosome and. Male Sexual Orientation, 261 Science 321 (1993) (finding evidence that there is a connection between male sexual orientation and a particular gene found on the X chromosome and suggesting that male sexual orientation may be linked to maternal relatives); Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 Science 1034-37 (1991) (finding that the interstitial nuclei of the anterior hypothalamus (INAH) 3, one of four cell groups found within the anterior hypothalamus region of the brain, is twice as large in heterosexual men as compared to homosexual men, and
Based on our research, no studies currently available to the public have been subjected to rigorous analysis under the Frye-Reed standard in order to determine the scientific reliability of the methodology, principles, and resultant conclusions of the foregoing studies for the purposes of evidentiary admissibility. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir. 1923) (requiring that expert testimony is admissible only when it is determined by the trial judge that the deduction is generally accepted in the particular field in which it belongs); Reed v. State, 283 Md. 374, 389, 391 A.2d 364, 373 (1978) (adopting in the State of Maryland the "general acceptance” rule annunciated in Frye); Hutton v. State, 339 Md. 480, 494 n. 10, 663 A.2d 1289, 1295 n. 10 (1995); see Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 327, 923 A.2d 939, 946 (2007); see also Committee Note to Md. Rule 5-702 ("[Rjequired scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.”). Nor were we able to locate any analyses of the studies under the
. Carey v. Population Services Int'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) ("The decision whether or not to beget or bear a child is at the very of this cluster of constitutionally protected choices.”); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (invalidating a Texas law that prohibited abortions on the basis that a woman has a Due Process right to make fundamental decisions affecting her body).
. Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
. Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (invalidating a Texas statute that criminalized private sexual intimacy by consenting same-sex couples).
. Eisenstadt v. Baird, 405 U.S. 438, 454, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (extending the reasoning employed in Griswold to
. Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 2851-52, 111 L.Ed.ld 224 (1990) (holding that every person possesses a constitutionally protected right to withdraw from unwanted life-saving medical treatment).
. It is beyond doubt that the right to marry is a fundamental liberty interest protected by the Constitution. See e.g., Turner v. Safley, 482 U.S. 78, 95, 96-97, 107 S.Ct. 2254, 2265, 2265-66, 96 L.Ed.2d 64 (1987) (holding unconstitutional a Missouri regulation that prohibited inmates from marrying, absent approval by the prison superintendent after a finding that there were compelling reasons for the marriage, even though the right to marry, as with many other constitutional rights, is restricted substantially as a result of incarceration); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978) ("[T]he right 'to marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause ....”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971) ("[M]arriage involves interests of basic importance in our society.”); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 1113-14, 86 L.Ed. 1655 (1942) (describing marriage as ''fundamental to the very existence of the [human] race.”); see also Skinner, 316 U.S. at 541, 62 S.Ct. at 1113-14, 86 L.Ed. 1655 ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”).
. Appellees rely additionally on Griswold, 381 U.S. at 486, 85 S.Ct. at 1682, 14 L.Ed.2d 510, and Eisenstadt, 405 U.S. at 453-54, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) for the proposition that the Supreme Court looks to what was enjoyed historically rather than who historically enjoyed it. They reason that in Eisenstadt the Court did not rely on history and tradition to conclude that unmarried couples were entitled to the right of sexual privacy and the use of contraceptives. Overlooking the fact that the case did not involve directly the right to marriage and that it was decided on equal protection grounds, Eisenstadt, 405 U.S. at 454, 92 S.Ct. at 1038, 31 L.Ed.2d 349, we nevertheless deem it distinguishable. As with the other cases cited supra, the decision was based on the right to produce children. The Court in Eisenstadt reasoned that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U.S. at 453-54, 92 S.Ct. at 1038, 31 L.Ed.2d 349 (citations omitted). The ability to bear or beget children is inherently a characteristic requiring at some level the participation of a man and a woman (at least until science demonstrates otherwise).
. We note, however, that this police power is not absolute. In regards to social and economic regulation, the Legislature may,
in the exercise of what is usually called its police power, [ ] regulate or restrict the freedom of the individual to act, when such regulation or restraint is essential to the protection of the public safety, health, or morals. That power, however, is itself subject to the restraints imposed by constitutions which the whole people have adopted and approved as the supreme law of the land.
(Thus), while the legislature may, in the proper exercise of the State's police power, classify the persons to whom a prescribed regulation found to be necessary to the public welfare may apply ..., or determine whether certain classes of acts may be regulated ..., nevertheless the exercise of the power must have some real and substantial relation to the public welfare ..., and the legislature may not, under the cloak of the power, exercise a power forbidden by the Constitution, or take away rights and privileges expressly guaranteed by it.
Waldron, 289 Md. at 718-19, 426 A.2d at 948-49 (quoting Dasch v. Jackson, 170 Md. 251, 262-64, 183 A. 534, 538-39 (1936)). We note that marriage is subject to the police power of the State not to employ the sort of circular reasoning urged by the State that Family Law § 2-201 is constitutional automatically, but rather to illustrate that the General Assembly and this Court have not always couched the right to marry in its most abstract sense.
. Unfortunate dicta appears in Henderson declaring void any marriage within Maryland between Caucasian and African-American persons. 199 Md. 449, 459, 87 A.2d 403, 409 (1952). This objective is obviously invalid in light of the Supreme Court’s subsequent holdings in Loving. The point of our allusion here to Henderson, however, is as an illustration that the State of Maryland may not be compelled to recognize a marriage performed in another state if that foreign marriage is repugnant to Maryland’s public policy (interracial marriage was against the public policy of Maryland at the time Henderson was decided). Id. The
. 1 U.S.C.A. § 7 (1996) ("In determining the means of any Act of Congress, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.”); Alaska Const. art. I, § 25; Ark. Const. amend. 83, § 1; Ga. Const. art. I, § IV, ¶¶1; Haw. Const. art. I, § 23; Kan. Const. art. XV, § 16; Ky. Const.
. Judge Raker agrees that rational basis review is the appropriate standard to apply to analysis of Appellees’ Article 24 argument (Raker dissent, op. at 328-29, 932 A.2d 637-38), whether viewed in support of a claim that gay and lesbian couples should have a right to marry in Maryland or, as Judge Raker supplies for Appellees, an alternate claim of relief that they should be granted civil union, domestic partners registration, or some other relief short of marriage.
. Judge Battaglia’s dissent, in response to the State’s assertion that it has an interest in marriage “as an institution of transcendent importance to social welfare,” posits that, “until the recent advances in assisted reproductive technology, there was a close[,] albeit imperfect fit[,] between opposite-sex marriage and the inherent biological fact that reproduction of our species could result only from the sexual union of a man and a woman.... The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today.” Judge Battaglia’s Dissent, op. at 418, 932 A.2d at 691. In that vein, the dissent árgues that
[t]he phenomena of assisted reproduction and same sex marriage are so new and radical that there exists no evidence thus far to support or refute the asserted link [between reproduction and the State’s asserted interest in marriage as an “institution of transcendent importance to social welfare”] and its concomitant external effects. Thus far, courts that have weighed this argument favorably have done so under rational basis review. The State’s contention that the same-sex marriage ban arises organically from the nature of marriage itself, and that the much later codification accomplished by [Family Law § ] 2-201 merely clarifies society’s compelling interest in "the historic family unit as a mechanism for protecting the progeny of biological unions,” actually asserts the State interest in promoting an orderly,*320 stable society. On the present state of the record, I believe neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.
Judge Battaglia's Dissent, op. at 420, 932 A.2d at 692-93 (citations omitted). As such, Judge Battaglia and Chief Judge Bell would remand, pursuant to Maryland Rule 8-604(d) ("If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court”), in order to conduct an evidentiary hearing regarding what it refers to as "the State’s unrebutted contention regarding the broad societal interest in retaining traditional marriage.” Id.
In ordering a remand for the purposes of additional evidentiary hearings, a Court exercising appellate jurisdiction must explain expressly its reasons for doing so. Md. Rule 8-604(d)(l). The problem with remanding in the present case lies in the fact that neither the record nor the briefs of the litigants reflect a dispute of material fact of the kind imagined by the dissent. Although Appellees argue generally that the distinction made by Family Law § 2-201 is over-inclusive and, at the same time, under-inclusive, they do not point to an evidentiary conflict necessitating remand for the purpose of an evidentiary hearing and resolution of a factual dispute. Appellees instead assert that they are entitled to summary judgment by virtue of what they deem to be a flaw fatal in the constitutionality of the marriage statute.
If this Court were to accept the reasoning of Judge Battaglia’s dissent and reverse the grant of summary judgment, pursuant to Maryland Rule 2-501 (a), (f) (providing that a motion for summary judgment may be granted only when there exists on the record no genuine disputes of material facts and the movant is entitled to judgment as a matter of law), we essentially would be recognizing in the record an illusory dispute of fact fatal to the grant of summary judgment when one does not exist. This we should decline to do. See Haas v. Lockheed Martin Corp., 396 Md. 469, 478, 914 A.2d 735, 740 (2007) (holding that, when reviewing a circuit court’s grant of summary judgement, ”[w]e consider, de novo, first, whether a material fact was placed in genuine dispute, thus requiring a trial, and ... whether the Circuit Court was legally correct in granting summary judgment.”) (citing Livesay v. Baltimore County, 384 Md. 1, 9, 862 A.2d 33, 38 (2004)) (emphasis added); Neifert v. Dep’t of Env’t, 395 Md. 486, 910 A.2d 1100 (2006) ("In reviewing a grant of summary judgment, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a
. Because we find that the State's interest in fostering procreation sufficient to sustain Family Law § 2-201, we need not address the alternative, and rather circular, justification offered by Appellants based on the State’s interest in maintaining its police power over the social institution of marriage.
. Judge Raker’s dissent, which follows closely the legal reasoning employed by the New Jersey Supreme Court in Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006), essentially rests on two strata: (1) the Due Process Clause of Article 24 of the Maryland Declaration of Rights; and (2) the Equal Protection Clause embodied in Article 24. See, e.g., State v. Good Samaritan Hospital of Md., Inc., 299 Md. 310, 326 n. 7, 473 A.2d 892, 900 n. 7 (1984) ("The Maiyland Constitution does not contain an express equal protection clause; the concept of equal protection is, however, embodied in Article 24 of the Declaration of Rights.”) (citing Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 616, 458 A.2d 758 (1983)).
In line with the majority opinion here, Judge Raker’s dissent posits initially that, even though Maryland’s citizenry is a diverse and tolerant group, and there exists in Maryland precedent and statutory authority that evidence increasing social acceptance of homosexual persons, the same-sex couples do not have a fundamental right to marry. Despite the absence of a fundamental right of same-sex couples to marry, however, the dissent reasons additionally that Article 24’s equal protec
We disagree with Judge Raker’s dissent for, other than the reasons advanced in the body of the majority opinion, the simple reason that Appellees here expressly disavowed any present desire to obtain the alternate relief she proposes. Ordinarily in Maryland, a court, whether trial or appellate, does not fashion relief where the record reflects that the parties to be benefitted repudiated expressly the proposed relief.
Appellees, in this record, cited a number of "intangible protections of marriage for themselves and especially for their children.” One such benefit relates to the sense of dignity that would accompany recognition of same-sex marriage in Maryland. Appellees refer, not only to the dignity that may be felt by the same-sex couples themselves, but also to their children in that the children, if their same-sex parents were able to marry, would "feel proud of who they are and where they come from.” One Appellee stated, in support of Appellees’ motion for summary judgment, that "[t]he legal sanction of [their] relationship through the institution of civil marriage would greatly diminish the stigma that [their] daughters will otherwise bear, simply because their parents are a same-sex couple.” Another Appellee noted that she "suffer[s] dignitary harm on account of the fact that the law effectively requires [her] to choose between [her] life in Maryland and [her] relationship with [her partner], simply because [they] are not recognized as spouses.”
Several Appellees iterated, in support of their motion for summary judgment, that the grant of benefits of marriage without actually recognizing same-sex marriage only would perpetuate the dignitary harm that they now claim to experience. Charles Blackburn wrote that “anything short of civil marriage for same-sex couples would perpetuate second-class citizenship for lesbian and gay families. While we respect the freedom of religious organizations to decline to perform religious wedding ceremonies for same-sex couples, we believe that such religious freedom cannot prevent our state from recognizing our relationship. We believe that, rather than undermining the institution of marriage, a commitment such as our[s] honors it. We believe that we, too, are entitled to the dignity and respect that marriage bestows.” Steven Palmer wrote that he and his partner "[s]till risk discrimination fostered by the stigmatizing message about the worth of [their] relationship that [their] government sends to [the] community by excluding [them] from marriage.” Finally, Patrick Wojahn wrote that "[m]ost of all, [he and his partner] wish for [their] relationship to enjoy that same social recognition as well as legal recognition as the relationships of [their] heterosexual peers. [Their] relationship can attain this level of respect only through the institution of marriage.”
Concurring in Part
RAKER, J., concurring in part and dissenting, in which BELL, C.J., joins in part:
I respectfully concur and dissent. Appellees assert that Maryland excludes them and their children from the protections unique to marriage solely because the person whom they love is a person of the same sex. Appellees seek the right to marry, understanding that a civil marriage license entitles married couples to a vast array of economic and social benefits and privileges—the rights of marriage—as well as other intangible benefits. Because in my view entitlement to the rights of marriage and the right to marry are distinct issues, I analyze them separately.
I would adopt the same analysis that the Supreme Court of New Jersey embraced in Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006), in which same-sex couples sued state officials, seeking both a declaration that New Jersey’s laws banning same-sex marriage violated the equal protection guarantees of the New Jersey Constitution as well as injunctive relief compelling the State to grant them marriage licenses. The New Jersey Court noted that the legal battle in the case had been waged over one overarching issue—the right to marry. The court rejected this “all-or-nothing” approach. Id. at 206. Instead, the court distinguished between the right to marry, on the one hand, and the rights of marriage on the other hand. Id. Specifically, the court considered appellees’ equal protection claim to consist of two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name marriage. I view the instant case before this Court in the same way, i.e., the issue presented as having two components.
The Vermont Supreme Court reached the same conclusion and adopted a similar approach. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999). Like the New Jersey plaintiffs, (and the Maryland plaintiffs), the Vermont plaintiffs “sought injunctive and declaratory relief designed to secure a marriage license,
“We hold that the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law. Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel ‘domestic partnership’ system or some equivalent statutory alternative, rests with the Legislature. Whatever system is chosen, however, must conform with the constitutional imperative to afford all Vermonters the common benefit, protection, and security of the law.”
Baker, 744 A.2d at 867.
I.
Under Maryland’s traditional equal protection jurisprudence, a legislative classification which does not discriminate
As the majority notes, a statute subject to rational basis review will be upheld generally unless the classification is “wholly irrelevant to the achievement of the State’s objective.” Attorney General v. Waldron, 289 Md. 683, 707, 426 A.2d 929, 942 (1981) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961) and McDonald v. Bd. of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969)). Furthermore, a classification subject to rational basis review may result in some inequality so long as the state can produce any conceivable “state of facts” to justify the
It is incorrect, however, to presume that rational basis review is effectively no review at all, particularly where vital personal interests are affected by a statutory classification.
‘We have not hesitated to carefully examine a statute and declare it invalid if we .cannot discern a rational basis for its enactment. ‘The vitality of this State’s equal protection doctrine is demonstrated by our decisions which, although applying the deferential standard embodied in the rational basis test, have nevertheless invalidated many legislative classifications which impinged on privileges cherished by*331 our citizens.’ ”6
Id., at 315, 761 A.2d at 333 (quoting Verzi v. Baltimore County, 333 Md. 411, 419, 635 A.2d 967, 971 (1994)). In practice, we have reviewed closely a legislative classification when important personal interests of distinct groups of Maryland residents are at stake or when legislation distributes benefits and burdens unequally between residents of the State.
II.
Maryland’s marriage law, Family Law § 2-201, entitles only opposite-sex couples to the rights of marriage. Md.Code (1984, 2006 RepLVol.), § 2-201 of the Family Law Article. As
A. Current Laws—Rights and Limits
In order to determine whether Maryland’s marriage law is rationally related to a legitimate governmental interest, it is first necessary to review how the Maryland statutory, regulatory, and case law has evolved to expand rights to gays and lesbians. It is highly significant that throughout this State, based on statutes and ordinances, discrimination against gays and lesbians is not tolerated or acceptable. As I will outline, discrimination on the basis of sexual orientation is against the law in this State. This context is important for analyzing whether the State’s proffered interest is legitimate, and whether the State’s means fit sufficiently the ends sought by the statute.
1. Rights
Over the past decade, Maryland has sought to eliminate discrimination based on sexual orientation and to reduce the disparate treatment of people based on sexual orientation, particularly in the areas of family law, criminal law, and anti-discrimination legislation.
Starting in the mid-1990’s, Maryland appellate courts rejected the notion that homosexual individuals should be treat
Maryland appellate courts have not considered sexual orientation as a factor when determining third party custody rights. In a custody dispute between two homosexual women, the Court of Special Appeals held that the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by the biological mother’s former same-sex partner under the Uniform Child Custody Jurisdiction Act, even if Tennessee was the more convenient forum. Gestl v. Frederick, 133 Md.App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000). The court noted that the former partner, who was not a biological parent, would lack standing to bring an action in Tennessee absent a finding that parental custody would result in substantial harm to the child, whereas Maryland law entitled the third party an opportunity to show that exceptional circumstances existed that would make it in the child’s best interests to grant
Although the issue of same-sex adoption has not been addressed by this Court, Maryland law does not appear to
Maryland has acted to protect gays and lesbians in the area of criminal law. The General Assembly has amended Maryland’s hate crime statutes to prohibit committing a crime upon a persons or property because of sexual orientation. See Md.Code (2002, 2006 Cum.Supp.), §§ 10-301 to 10-306 of the Criminal Law Article.
Maryland has addressed the decriminalization of sexual acts for both heterosexual and homosexual couples. In Schochet v. State, 320 Md. 714, 580 A.2d 176 (1990), this Court held that Maryland’s statute criminalizing “unnatural or perverted sexual practices” did not encompass private, consensual, noncommercial, heterosexual activity between adults.
Maryland public policy prohibits discrimination based on sexual orientation in public accommodation, housing, and employment. See Anti-discrimination Act, 2001 Md. Laws Chap. 340. The Anti-discrimination Act of 2001 bans discrimination based on sexual orientation, defined as “the identifica
There are a multitude of other state-wide laws and regulations that prohibit discrimination based on sexual orientation in a variety of categories. It is unlawful for social workers, judges, and the Washington Suburban Sanitary Commission, for example, to discriminate based on sexual orientation. Md. Code (1981, 2005 Repl. Vol, 2006 Cum.Supp.), § 19-311 of the Health and Occupations Article; Md. Rule 16-813 Canon 3A (“A judge shall perform the duties of judicial office ... impartially, and without having or manifesting bias or prejudice, including bias or prejudice based on ... sexual orientation. ...”); Md.Code (1957, 2002 Repl. Vol), Art. 29, § 1-107. Maryland has regulated several other areas to further the goal of sexual orientation equality.
Amongst these counties, Montgomery County is unique because it has extended certain employment benefits to the same-sex domestic partners of County employees—rights previously only enjoyed by heterosexual couples through the civil contract of marriage.
This Court upheld the constitutionality of the Montgomery County Act. See Tyma v. Montgomery County, 369 Md. 497, 801 A.2d 148 (2002) (holding that a home rule county does not exceed its local lawmaking authority or otherwise undermine State and federal law by providing benefits to the domestic partners of its employees). We held that the Act did not implicate Maryland’s marriage laws. Id. at 514-15, 801 A.2d at 158. Instead, we determined that the County had demonstrated a valid public purpose for extending employment benefits, namely “recruiting] and retaining] qualified employees and ... promoting] employee loyalty.” Id. at 512, 801 A.2d at 157. Thus, under this State’s home rule authority, Montgomery County was within its right to provide for the health and welfare of the County not already provided for by the public general law. Md.Code (1957, 1985 Repl.Vol., 2001 Cum.Supp.), Art. 25A, § 5(S).
Despite Maryland’s recent statutory, regulatory, and case law that has evolved to equalize some legal protections of heterosexuals and homosexuals, same-sex couples are denied the protection of hundreds of laws simply because they are not yet entitled to the rights and benefits flowing from marriage. Appellees have directed us to over 425 statutory protections that are afforded to married couples and, as a result, to their children under state law, protections that appellees are denied.
Health related benefits are among the rights afforded to married couples but denied to committed same-sex couples. A spouse is automatically entitled to act as a surrogate regarding health care decisions necessary for an incapacitated spouse absent the existence of an appointed guardian. Md.Code (1982, 2005 Repl.Vol., 2006 Cum.Supp.), § 5-605 of the
Married individuals benefit also from certain default provisions associated with the death of a spouse. A surviving spouse automatically has the right to arrange for the final disposition of the body of a decedent spouse in absence of written instructions. Md.Code (1982, 2005 Repl.Vol., 2006 Cum.Supp.), § 5-509 of the Health-General Article. A spouse is exempt from inheritance tax on benefits plans or real property passed on by the decedent. Md.Code (1988, 2004 ReplVol., 2006 Cum.Supp.), § 7-203 of the Tax General Article. A spouse is entitled to a family allowance of $5,000, which is exempt from and has priority over all claims against the estate. Md.Code (1974, 2001 ReplVol, 2006 Cum.Supp.), § 3-201 of the Estates and Trusts Article. A spouse may bring a cause of action for the wrongful death of a spouse. Md.Code (1974, 2006 ReplVol.), § 3-904 of the Courts and Judicial Proceedings Article. Furthermore, health insurance providers are required to continue coverage for surviving spouses. Md.Code (1997, 2006 Repl.Vol., 2006 Cum.Supp.), § 15-407 of the Insurance Article. Same-sex couples must incur the expense of attempting to gain and to protect these rights through wills and other legal instruments.
Beyond the realm of health and death benefits, married couples enjoy the right to freely transfer joint ownership in property to a spouse without having to pay transfer or recordation tax. Md.Code (1986, 2001 Repl.Vol., 2006 Cum.Supp.), §§ 12-108, 13-403 of the Tax-Property Article. Married couples may own property as tenants by the entirety, Md.Code (1974, 2003 ReplVol, 2006 Cum.Supp.), § 4-204 of the Real Property Article, which can, for example, protect the property from forfeiture in certain circumstances. Md.Code (2001, 2001 ReplVol, 2006 Cum.Supp.), § 12-103 of the Criminal Procedure Article. In judicial proceedings, married individuals may
The statutes determining relationships between child and parent are particularly relevant. Maryland Code (1974, 2001 Repl.Vol., 2006 Cum.Supp.), § 1-206 of the Trusts and Estates Article states as follows:
“(a) A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in § 1-207,[21 ] a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.
“(b) A child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presumed.”
Although a child conceived by artificial insemination of a married woman can automatically be the legitimate child of both individuals in the marriage, a same-sex couple must go through the process of second-parent adoption, which necessarily involves a period of some delay.
It cannot be argued that same-sex couples are not denied significant benefits accorded to heterosexual couples. It is clear that there are significant differences in the benefits provided to married couples and same-sex couples in the areas
2. Analysis of State’s Interests
As the majority notes, the State asserts two rationales in support of the statute governing marriage, Family Law § 2-201. First, the State argues that, “Maryland law preserving the historic definition of marriage to include a man and a woman is eminently reasonable and unquestionably bears a fair and substantial relation to the State’s legitimate interest in maintaining and promoting the traditional institution of marriage.” This rationale addresses solely the definition of marriage, as opposed to the rights and benefits that flow from marriage. Because I write separately to address the rights and benefits, I do not address this proffered State interest.
The State asserts also that, encouraging “the definition of marriage to include a man and woman is rationally related to a legitimate government interest in providing for the offspring that may result from heterosexual intimacy.” Again, my focus is on whether the State may rationally deny same-sex couples the full rights and benefits of marriage in order to foster its asserted interest in a stable environment for procreation and child rearing.
Maryland public policy supports procreation that occurs in both opposite-sex and same-sex couple environments. Maryland appears to grant adoptions to both homosexual and heterosexual couples, and adoption agencies “may not deny an individual’s application to be an adoptive parent because ... [o]f the applicant’s ... sexual orientation.” COMAE 7.05.03.09(A); see also COMAE 7.05.03.15(C)(2). Maryland courts alfio grant second-parent adoptions to same-sex partners and the Department of Health & Mental Hygiene issues birth certificates recognizing same-sex partners as co-parents. Furthermore, \ Maryland courts must disregard the sexual orientation of each parent in child custody and visitation disputes. See Boswell, 352 Md. 204, 721 A.2d 662. These laws do not demonstrate that Maryland has an interest in favoring heterosexual parents over homosexual couples with regard to procreation and child rearing. Indeed, the State specifically treats homosexual couples and heterosexual couples similarly in this context.
Despite the fact that Maryland provides some rights and benefits in the area of procreation to same-sex couples, the State asserts it has a rational basis for excluding same-sex couples from the full benefits of marriage. This is not a rational assertion. There is no doubt that the State has a legitimate interest in promoting procreation and child rearing, but it cannot rationally further this interest by only granting the full rights of marriage to opposite-sex couples when it already provides some legal protections regarding procreation and child rearing to same-sex couples.
What is striking, in fact, is that the State’s proffered interest—providing a stable environment for procreation and child rearing—is actually compromised by denying same-sex families the benefits and rights that flow from marriage. That is, there is not a sufficient link between the State’s proffered legitimate interest and the means utilized by the State to further that interest.
The State has determined arbitrarily which benefits may be extended to same-sex couples and the inequality that results is more than merely “some inequality.” For example, there is no rational basis why a surviving spouse of a state employee
I agree with the Supreme Court of Vermont, which recognized both the multitude and significance of the benefits and protections incident to a marriage. The Vermont Supreme Court stated as follows:
“While other statutes could be added to this list, the point is clear. The legal benefits and protections flowing from a marriage license are of such significance that any statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned. Considered in light of the extreme logical disjunction between the classification and the stated purposes of the law—protecting children and ‘furthering the link between procreation and child rearing’—the exclusion falls substantially short of this*351 standard. The laudable governmental goal of promoting a commitment between married couples to promote the security of their children and the community as a whole provides no reasonable basis for denying the legal benefits and protections of marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts. Promoting a link between procreation and childrearing similarly fails to support the exclusion.”
Baker, 744 A.2d at 884.
The classification in Family Law § 2-201 is significantly over—and under-inclusive, and creates more than merely an imperfect fit between means and ends with regard to the disbursement of the rights and benefits of marriage. Denying same-sex couples the rights and benefits appurtenant to marriage is not a means to legitimately meet the State’s interest in furthering procreation and child-rearing. Moreover, the classification creates more than merely “some inequality”—it creates a grossly unequal distribution of benefits and privileges to two similarly situated classes of people. The State has failed to provide a legitimate State interest in denying the protections and responsibilities of marriage that is rationally furthered by the classification in Family Law § 2-201. As discussed, supra, this State has demonstrated that it is on a path to providing full equality regardless of sexual orientation, and it is unreasonable and irrational for the State to arbitrarily grant to same-sex couples certain rights and benefits incident to marriage considering the full range of protections and responsibilities that come with marriage. In short, while there may be a legitimate basis for retaining the definition of marriage as one between a man and a woman, there is no legitimate basis for denying committed same-sex couples the benefits and privileges of marriage.
The reality of Maryland today is that heterosexual couples are not the only people that participate in procreation and child rearing. Maryland’s laws recognize and promote this reality, and each child raised in a household headed by a committed same-sex couple in Maryland needs and is entitled
C. Remedy
The State has not demonstrated a rational relationship between denying committed same-sex couples the benefits and privileges given to their married heterosexual counterparts and the legitimate government purpose of promoting procreation and child-rearing. Under the equal protection guarantee of Article 24 of the Maryland Declaration of Rights, the State must provide committed same-sex couples, on equal terms, the same rights, benefits, and responsibilities enjoyed by married heterosexual couples.
It is up to the General Assembly to meet the equal protection guarantee of Article 24 of the Maryland Declaration of Rights. It is not this Court’s role to craft a constitutional statutory scheme, but the General Assembly could satisfy the constitutional mandate by creating a separate statutory structure similar to the civil union or domestic partnership laws present in our sister jurisdictions.
Each state’s statutory scheme differs in the rights and benefits granted to same-sex couples,
New Jersey’s legislature acted and chose to establish civil unions by amending the State’s current marriage statute to include same-sex couples. See 2006 N.J. Laws 975. In doing so, the legislature stated that it was “continuing its longstanding history of insuring equality under the laws for all New Jersey citizens by providing same-sex couples with the same rights and benefits as heterosexual couples who choose to marry.” N.J. Stat. Ann. § 37:1-28® (West 2007).
The New Jersey Legislature set forth three requirements that two persons seeking to establish a civil union must meet: (1) not be a party to another civil union, domestic partnership or marriage in New Jersey; (2) be of the same sex; and (3) be at least 18 years of age, with certain exceptions.
Under Md. Rule 8-606, the disposition of an appeal is evidenced by the issuance of a mandate by the Clerk of Court in conformance with the opinion, not by the opinion itself. Generally, the mandate—the judgment of the Court—is issued 30 days after the filing of the opinion, but Rule 8—606(b) permits the Court to advance or delay the issuance of the
Similar to the situation in New Jersey prior to passage of that State’s civil union law, there is an unconstitutional disparity of rights, benefits, and responsibilities between committed same-sex couples and heterosexual couples in Maryland. The constitutional relief to which appellants are entitled would necessarily require the cooperation of the General Assembly. As a result, such relief could not be immediate. The General Assembly should, however, work to create a scheme that safeguards the individual liberties protected by the Maryland Declaration of Rights. In this case, I would retain jurisdiction in this Court and instruct the Clerk to withhold the mandate for 180 days to give the General Assembly time to consider and enact legislation consistent with the views expressed in this dissenting opinion. In my view, the General Assembly should either amend the marriage statutes or enact an appropriate statutory scheme to provide appellees with their full rights under Maryland’s equal protection guarantee in a timely manner.
Chief Judge Bell authorizes me to state that he agrees with, and joins this dissenting opinion to the extent that it endorses and advocates that committed same-sex couples are entitled to the myriad statutory benefits that are associated with and flow from marriage. He does not join the part of this opinion that accepts the majority’s analysis and determination that rational basis review is the appropriate standard to be applied in this case. See Bell, C.J., dissenting opinion.
. The majority analyzes whether appellees have a constitutional right to have their relationships recognized by the name marriage, but fails to
. Article 24 of the Maryland Declaration of Rights states "[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws.” Although Article 24 does not contain an express equal protection clause, this Court has held that the same concept of equal treatment is embodied in the due process requirement of Article 24 of the Declaration of Rights. Frankel v. Board of Regents, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (quoting Renko v. McLean, 346 Md. 464, 482, 697 A.2d 468, 477 (1997)). United States Supreme Court cases applying the Equal Protection Clause of the Fourteenth Amendment are binding on this Court when applying that clause and are persuasive when we undertake to interpret and apply Article 24 of the Declaration of Rights. Id. at 313, 761 A.2d at 332. We reiterate that each provision is independent, however, and a violation of one is not necessarily a violation of the other. See, e.g., Dua v. Comcast, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002). It is well accepted that this Court may apply a more stringent standard of review as a matter of state law under Maryland's equivalent to the Equal Protection Clause. See Minnesota v. Clover Leaf Creamery Company, 449 U.S. 456, 461-63 n. 6, 101 S.Ct. 715, 722-23 n. 6, 66 L.Ed.2d 659 (1981).
. The Vermont court made clear that the Legislature could and should fashion the appropriate remedy, stating as follows:
"We hold only that plaintiffs are entitled under Chapter I, Article 7, of the Vermont Constitution to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples. We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate, other than to note that the record here refers to a number of potentially constitutional statutory schemes from other jurisdictions. These include what are typically referred to as 'domestic partnership’ or ‘registered partnership’ acts, which generally establish an alternative legal status to marriage for same-sex couples, impose similar formal requirements and limitations, create a parallel licensing or registration scheme, and extend all or most of the same rights and obligations provided by the law to married partners. See Report, Hawaii Commission on Sexual Orientation and the Law (Appendix D-1B) (1995) (recommending enactment of 'Universal Comprehensive Domestic Partnership Act’ to establish equivalent licensing and*329 eligibility scheme and confer upon domestic partners 'the same rights and obligations under the law that are conferred on spouses in a marriage relationship') (emphasis added); C. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a 'Simulacrum of Marriage’, 66 Fordham L.Rev. 1699, 1734-45 (1998) (discussing various domestic and foreign domestic partnership acts); A. Friedman, Same-Sex Marriage and the Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based Definitions of Marriage, 35 How. L.J. 173, 217-20 n. 237 (1992) (reprinting Denmark’s 'Registered Partnership Act’); see generally, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 Colum. L.Rev. 1164 (1992) (discussing local domestic partnership laws); M. Pedersen, Denmark: Homosexual Marriage and New Rules Regarding Separation and Divorce, 30 J. Fam. L. 289 (1992) (discussing amendments to Denmark’s Registered Partnership Act); M. Roth, The Norwegian Act on Registered Partnership for Homosexual Couples, 35 J. Fam. L. 467 (1997) (discussing Norway’s Act on Registered Partnership for Homosexual Couples). We do not intend specifically to endorse any one or all of the referenced acts, particularly in view of the significant benefits omitted from several of the laws.” Baker v. State, 170 Vt. 194, 744 A.2d 864, 886-87 (1999).
. Professor Cass Sunstein has documented that the United States Supreme Court has departed from the deferential rational basis standard without defining a new level of scrutiny. See Cass Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.Rev. 4, 59-61 (1996). These cases include Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 1628-29, 134 L.Ed.2d 855 (1996) (holding Colorado statute that banned state or local laws forbidding sexual-orientation discrimination was not rationally related to legitimate governmental objective), City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450, 105 S.Ct. 3249, 3259-60, 87 L.Ed.2d 313 (1985) (applying rational basis review, Court invalidated zoning discrimination against mentally retarded as based on "irrational prejudice”), and United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2825-26, 37 L.Ed.2d 782 (1973) (invalidating regulation that excluded nonfamily members of household from food stamp program). In each of these decisions, the Court employed a highly contextual, fact-based analysis balancing private rights and public interests even while ostensibly applying minimal rational basis review.
. We noted that, "such invalid regulations have often imposed economic burdens, in a manner tending to favor some Maryland residents over other Maryland residents." Frankel, 361 Md. at 315, 761 A.2d 324 (quotations omitted) (citing Maryland Aggregates v. State, 337 Md. 658, 672 n. 9, 655 A.2d 886, 893 n. 9 (1995)).
. See Lawrence v. Texas, 539 U.S. 558, 580, 123 S.Ct. 2472, 2485, 156 L.Ed.2d 508 (2003) (O’Connor, J., concurring) ("We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.”).
. See, e.g., Frankel, 361 Md. 298, 761 A.2d 324 (striking down, on rational basis review, tuition policy discriminating against certain instate residents); Verzi v. Baltimore County, 333 Md. 411, 635 A.2d 967 (1994) (striking down, on rational basis review, ordinance discriminating against tow operators without a place of business in the county); Attorney General v. Waldron, 289 Md. 683, 426 A.2d 929 (1981) (striking down, on rational basis review, statute discriminating against retired judge practitioners); Kirsch v. Prince George’s County, 331 Md. 89, 626 A.2d 372 (1993) (striking down, on rational basis review, zoning ordinance discriminating against university student tenants); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973) (striking down, on rational basis review, statute discriminating against cosmetologists); Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 276 A.2d 200 (1971) (striking down, on rational basis review, statute discriminating against out-of-county crabbers and oystermen); City of Balto. v. Charles Ctr. Parking, 259 Md. 595, 271 A.2d 144 (1970) (striking down, on rational basis review, ordinance discriminating against painted signs); Md. Coal Etc. Co. v. Bureau of Mines, 193 Md. 627, 69 A.2d 471 (1949) (striking down, on rational basis review, mining statute discriminating against non-exempt counties); Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936) (striking down, on rational basis review, statute discriminating against paper-hangers); Havre de Grace v. Johnson, 143 Md. 601, 123 A. 65 (1923) (striking down, on rational basis review, an ordinance discriminating against out-of-city automobiles for hire).
. To reiterate, I do not address whether same-sex partners have the right to define their relationship by the name of marriage or whether the State has a legitimate interest in protecting the traditional institution of marriage by name. In this dissent, I analyze solely whether same-sex couples are entitled to the same rights of marriage that are provided in Maryland to heterosexual partners.
. This Court stated recently that "where private third parties are attempting to gain custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a trial court should consider the " ‘best interests of the child’ standard as a means of deciding the dispúte.” McDermott v. Dougherty, 385 Md. 320, 325, 869 A.2d 751, 754 (2005); see also Shurupoff v. Vockroth, 372 Md. 639, 662, 814 A.2d 543, 557 (2003) ("[W]hen the dispute is between a parent and a third party, it is presumed that the child's best interest lies with parental custody. If there is a sufficient showing that the parent is unfit, however, or that exceptional circumstances exist which would make parental custody detrimental to the child's best interest, the presumption is rebutted and custody should not be given to the parent, for, in either situation, parental custody could not possibly be in the child's best interest. So long as the best interest of the child remains the definitive standard and there is any reasonable alternative, it defies both logic and common sense to place a child in the custody of anyone, including a parent, when either that person is unfit to have custody or such action, because of exceptional circumstances, would be detrimental to the child's best interest.”)
. The statutory requirements for adoption do not specifically address sexual orientation. Section 5-3A-29 of the Family Law Article of the Maryland Code sets forth the requirements as follows:
(a) Age—Any adult may petition a court for an adoption under this subtitle.
(b) Minimum period of placement—A petitioner may petition for adoption of a child 180 days or more after a child placement agency places the child with the petitioner.
(c) Marital status—(1) If a petitioner under this section is married, the petitioner’s spouse shall join in the petition unless the spouse:
(1) is separated from the petitioner under a circumstance that gives the petitioner a ground for annulment or divorce; or
(ii) is not competent to join in the petition.
(2) If the marital status of a petitioner changes before entry of a final order, the petitioner shall amend the petition accordingly.
Md.Code (1984, 2006 Repl.Vol.), § 5-3A-29 of the Family Law Article.
. Other states expressly prohibit adoptions by gays and lesbians. See Fla.Stat.Ann. § 63.042(3) (West 2005) ("No person eligible to adopt under this statute may adopt if that person is a homosexual.”); Miss. Code Ann. § 93-17-3(5) (2004 & Supp. 2006) ("Adoption by couples of the same gender is prohibited.”); Utah Code Ann. § 78-30-9(3)(a) (2002) ("The Legislature specifically finds that it is not in a child’s best interest to be adopted by a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state.”).
. See In re Petition of D.L.G. & M.A.H., No. 95-179001/CAD, 2 MFLM Supp.21 (1997) (Cir. Ct. Balt. City, June 27, 1996). According to www.
. A jury had convicted Schochet of participating in the unnatural or perverted sexual practice of fellatio under the Md.Code (1957, 1987 Rep. Vol.), Art. 27 § 554. Schochet v. State, 320 Md. 714, 718, 580 A.2d 176, 178 (1990). Schochet did not directly address homosexual acts. See id.
. Interestingly, although this Court has not opined on Williams, the Maryland Office of the Attorney General issued an Advice Letter to Delegate Sue Hecht on October 29, 1999 stating that, “although Williams is a circuit court decision, the Court of Appeals would likely reach the same conclusion.” See Advice Letters, Advice and Legislation Quarterly News, Office of the Attorney General, October-December 1999, at 2-3, available at http://www.oag.state.md.us/Opinions/news/994.htm.
. The American Civil Liberties Union reports that The Office of the Attorney General, in a consent decree signed on January 19, 1999, agreed to both not appeal Williams v. Glendening, No. 98036031/CL-1059, 1998 WL 965992 (Md.Cir.Ct. Oct. 15, 1998) and not enforce Maryland’s sodomy statute. See In Historic Settlement with ACLU, Maryland Clears Last of its Sodomy Laws From the Books, (1991), http://aclu.org/lgbt/discrim/11991prs19990119.html; see also Scott Calvert, Ruling on Gays Stirs Up Emotions, Balt. Sun, June 28, 2003, at 1A.
. Maryland is one of twenty-one jurisdictions that have passed sexual orientation nondiscrimination laws. See Thetaskforce.org, State Nondiscrimination Laws in the U.S. (2007), http://www.thetaskforce.or^ downloads/reports/issue_maps/non_discrimination_07_07_color.pdf. The other jurisdictions are: California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Washington, Wisconsin, Vermont.
. See Gregory Care, Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a "Sexual Orientation-Blind” Legal System in Maryland and the Recognition of Same-Sex Marriage, 35 U. Balt. L.Rev. 73 at n. Ill (2006) ("Md.Code Regs. 01.01.1995.19(I)(A)(11) (2004) (executive order to establish an equal employment opportunity program for state government to ensure personnel actions taken "without regard to ... [sjexual orientation”); id. 01.04.04.04(B)(7) (2004) (requiring the board of directors of Residential Child Care Programs to ensure that such programs do not discriminate on the basis of sexual orientation); id. 05.04.11.18(A) (2005) (prohibiting sexual orientation discrimination by sponsors or contractors in the Special Housing Opportunities Program); id. 05.05.02.14(A) (2005)
. Certain requirements must be met for a couple to qualify as a domestic partnership. Section 33-22(c)(l) of the County Code provides:
"(c) Requirements for domestic partnership. To establish a domestic partnership, the employee and the employee’s partner must ... "(1) satisfy all of the following requirements:
"(A) be the same sex ...;
“(B) share a close personal relationship and be responsible for each other’s welfare;
"(C) have shared the same legal residence for at least 12 months;
"(D) be at least 18 years old;
"(E) have voluntarily consented to the relationship, without fraud or duress;
"(F) not be married to, or in a domestic partnership with, any other person;
"(G) not be related by blood or affinity in a way that would disqualify them from marriage under State law if the employee and partner were ... opposite sexes;
“(H) be legally competent to contract; and
*342 "(I) share sufficient financial and legal obligations to satisfy subsection (d)(2).”
Section (d) addresses the acceptable evidence of domestic partnership. Pursuant to subsection (d)(1), such evidence consists of either "an affidavit signed by both the employee and the employee's partner under penalty of perjury” or an official copy of the domestic partner registration, and under subsection (d)(2), evidence that the employee and partner share certain of several enumerated items, such as a joint lease, see § 33-22(d)(2)(A), or checking account, see § 33-22(d)(2)(C), that may document a domestic partnership.
. As the majority notes, there are literally over a thousand federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. See A.B.A. Sec. of Fam. L., A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 38 Fam. L.Q. 339, 366 n. 98 (citing U.S. Gen. Accounting Office, GA O Rep. No. 04-4353R, Defense of Marriage Act: Update to Prior Report (2004), available at http://www.gao.gov/new. items/d04353r.pdf). The majority notes correctly, in footnote 6 of their opinion, that "[ajlthough disposition of the present case would have no effect on Appellees’ eligibility for those federal benefits under the Federal Defense of Marriage Act, it illustrates the current regulatory landscape regarding same-sex marriage and the marital benefits from which Appellees are excluded.”
. It is not practical to fully discuss here the privileges that are provided to married individuals and denied to committed same-sex couples. For a full description see Equality Maryland., Marriage Inequality in the State of Maryland (2006), http://www.equalitymaryland. org /marriage/marriage_mequality_in_maryland.pdf.
. Md.Code (1974, 2001 Repl.Vol., 2006 Cum.Supp.), § 1-207 of the Estates and Trusts Article states that an "adopted child shall be treated as a natural child of his adopting parent or parents.”
. There is no doubt that the State has a legitimate interest in the welfare of children. The question is whether Family Law § 2-201 rationally furthers this interest.
. As noted in Baker, 744 A.2d at 881, “it is undisputed that most of those who utilize nontraditional means of conception are infertile married couples, and that many assisted-reproductive techniques involve only one of the married partner’s genetic material, the other being supplied by a third party through sperm, egg, or embryo donation.” (citations omitted).
. Whether a child was conceived through "accidental” heterosexual sex or entered a family after planning by a different or a same-sex couple does not alter the State’s interest in encouraging that every child be raised in the most stable setting possible. There is no rational basis for concluding that excluding same-sex couples from the rights of marriage will influence heterosexual couples to have procreative sexual relations only within marriage or to pursue marriage after procreation.
. Maryland’s equal protection jurisprudence requires that the legislative distinction further a legitimate state interest. Chief Judge Judith Kaye, writing for the dissent in Hernandez v. Robles, 7 N.Y.3d 338, 391, 821 N.Y.S.2d 770, 855 N.E.2d 1, 30 (2006), explained as follows:
"Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself. Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.” (citation omitted).
. The focus of this dissent is not on the definition of marriage, but it should be noted that the General Assembly could also act to remedy the current equal protection violations by modifying the definition of marriage in Family Law § 2-201 to include committed same-sex couples. Alternatively, the Legislature could elect to title all partnerships between two people, whether heterosexual or homosexual, as civil unions, domestic partnerships, etc.
. Connecticut, New Jersey, New Hampshire and Vermont, for example, have passed legislation that allows or authorizes civil unions for same-sex couples. See Conn. Gen.Stat. §§ 46b-38aa to -38pp (2006 Supp.); 2007-2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis); N.J. Stat. Ann. § 26:8A-1 to A-12 (West 2007); Vt.Stat.Ann. tit. 15, §§ 1201-1207 (2002). California, the District of Columbia, Hawaii, Maine, Oregon, and Washington enacted legislation providing for the
. Certain marriages or civil unions are prohibited outright, such as those between relatives. See N.J. Stat. Ann. § 37:1-1 (West 2007).
. The non-exclusive list of legal benefits, protections and responsibilities stated in the New Jersey Civil Union statute, N.J. Stat. Ann. § 37:1-32 (West 2007), includes the following:
"a. laws relating to title, tenure, descent and distribution, intestate succession, survivorship, or other incidents of the acquisition, ownership or transfer, inter vivos or at death, of real or personal property, including but not limited to eligibility to hold real and personal property as tenants by the entirety;
"b. causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, or other torts or actions under contracts reciting, related to, or dependent upon spousal status;
"c. probate law and procedure, including nonprobate transfer;
"d. adoption law and procedures;
“e. laws relating to insurance, health and pension benefits;
"f. domestic violence protections pursuant to the "Prevention of Domestic Violence Act of 1991,” P.L.1991, c. 261 (2C:25-17 et seq.) and domestic violence programs;
"g. prohibitions against discrimination based upon marital status;
"h. victim’s compensation benefits, including but not limited to compensation to spouse, children and relatives of homicide victims;
"i. workers’ compensation benefits pursuant to chapter 15 of Title 34 of the Revised Statutes, including but not limited to survivors’ benefits and payment of back wages;
"j. laws relating to emergency and nonemergency medical care and treatment, hospital visitation and notification, and any rights guaranteed to a hospital patient pursuant to P.L.1989, c. 170 (C.26:2H-12.7*355 et seq.) or a nursing home resident pursuant to P.L.1976, c. 120 (C.30:13-l etseq.);
“k. advance directives for health care and designation as a health care representative pursuant to P.L.1991, c. 201 (C.26:2H-53 et seq.);
"1. family leave benefits pursuant to P.L.1989, c. 261 (C.34:11B-1 et seq.);
"m. public assistance benefits under State law, including, but not limited to: Work First New Jersey benefits pursuant to P.L.1997, c. 38 (C.44:10-55 et seq.); medical assistance pursuant to P.L.1968, c. 413 (C.30:4D-1 et seq.); Supplemental Security Income pursuant to P.L.1973, c. 256 (0.44:7-85 et seq.); pharmaceutical assistance pursuant to P.L.1975, c. 194 (C.30:4D-20 et seq.) and P.L.2001, c. 96 (C.30:4D-43 et seq.); hearing aid assistance pursuant to P.L.1987, c. 298 (C.30:4D-36 et seq.); and utility benefits pursuant to P.L.1979, c. 197 (0.48:2-29.15 et seq.) and P.L.1981, c. 210 (0.48:2-29.30 et seq.); “n. laws relating to taxes imposed by the State or a municipality including but not limited to homestead rebate tax allowances, tax deductions based on marital status or exemptions from realty transfer tax based on marital status;
"o. laws relating to immunity from compelled testimony and the marital communication privilege;
"p. the home ownership rights of a surviving spouse;
"q. the right of a spouse to a surname change without petitioning the court;
"r. laws relating to the making of, revoking and objecting to anatomical gifts pursuant to P.L.1969, c. 161 (C.26:6-57 et seq.);
"s. State pay for military service;
"t. application for absentee ballots;
"u. legal requirements for assignment of wages; and
"v. laws related to tuition assistance for higher education for surviving spouses or children.”
Dissenting Opinion
dissenting.
I respectfully dissent. In this case, the majority erroneously relies on the opinion of Chief Judge Robert C. Murphy in Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 501 A.2d 817
I. Determining the Applicable Standard of Review
A. Burning Tree I
1. The Primary Case
In Burning Tree I, Stewart Bainum, in his role as taxpayer,
In 1974, the General Assembly amended Section 19(e) to add an anti-discrimination provision, which conditioned the tax benefit on an agreement not to discriminate on account of race, color, creed, sex, or national origin, unless the clubs were “operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex.” Burning Tree I, 305 Md. at 57, 501 A.2d at 819 (emphasis added); 1974 Md. Laws, Chap. 870. The amended statute also contained a so-called periodic discrimination clause, exempting from the anti-discrimination provision those “clubs which exclude certain sexes only on certain days and at
There were several issues
Chief Judge Murphy, joined by Judges Charles E. Orth, Jr. and Marvin H. Smith, took the position that the involvement of the State and the Department in the open space program did not constitute state action. Id. at 64-65, 501 A.2d at 822-23. In Chief Judge Murphy’s opinion, Section 19(e)(4)(i) was facially neutral, id. at 71, 501 A.2d at 826, and the State bore no responsibility for the Club’s discrimination, because the State did not initiate the Club’s discriminatory membership policy, the State did not cause the Club to implement those policies through coercion or inducement, and the statutory purpose
A majority of the Court, consisting of Judge Rodowsky, id. at 88, 501 A.2d at 834-35, and Judges Eldridge, Cole and Bloom, id. at 91, 501 A.2d at 836, held that the “primary purpose” clause on its face violated the ERA. Because Judge Rodowsky disagreed with Judge Eldridge about severability, id. at 91 & n. 5, 501 A.2d at 836 & n. 5, a different majority consisting of Chief Judge Murphy, and Judges Orth and Smith, id. at 84, 501 A.2d at 832-33, agreed with Judge Rodowsky, id. at 85, 501 A.2d at 833, holding that the “primary purpose” clause was not severable from Section 19(e)(4)©, thereby invalidating the entire anti-discrimination provision (and rendering the periodic discrimination clause moot).
On the ERA issue, Chief Judge Murphy, writing for himself and two other judges, concluded that the “primary purpose” clause did not implicate the ERA and therefore, was not subject to strict scrutiny, because the clause benefitted and burdened both sexes equally, id. at 71, 501 A.2d at 826, and because the ERA was “essentially limited in its scope to unequal treatment imposed by law as between the sexes.” Id. at 65, 501 A.2d at 823 (emphasis added). According to Chief Judge Murphy, enactment and administration of Section 19(e)(4) constituted “action by the State,” id. at 70, 501 A.2d at 826; nevertheless, the statute “[did] not apportion or distribute benefits or burdens unequally among the sexes, but rather [made] the tax benefit equally available to all single sex country clubs agreeing to participate in the State’s open space program.” Id. at 71, 501 A.2d at 826. Furthermore, “[t]he only burden [was] that imposed on the public treasury as a
Judge Eldridge, writing for himself and two other judges, rejected the Chief Judge’s “gender neutral” analysis, warning that “Chief Judge Murphy’s opinion seems to embrace a type of ‘separate but equal’ doctrine for purposes of the E.R.A.” Id. at 91, 501 A.2d at 836. Judge Eldridge stated that regardless of whether the sexes are benefitted or burdened equally, any statute that implicates gender classifications on its face must be subject to strict scrutiny, id. at 99, 501 A.2d at 840, and explained the scope of the ERA:
While it is true that many of our prior cases have involved government action directly imposing a burden or conferring a benefit entirely upon either males or females, we have never held that the E.R.A. is narrowly limited to such situations. On the contrary, we have viewed the E.R.A. more broadly, in accordance with its language and purpose.
Id. at 95, 501 A.2d at 838 (emphasis added). He then looked to our jurisprudence in Rand, in which we stated that the language of the ERA was “ ‘unambiguous’ ” and “ ‘can only
In a concurring opinion, Judge Rodowsky agreed with Judge Eldridge that the “primary purpose” clause on its face violated the ERA, which represented the holding of the case. Id. at 85, 501 A.2d at 833. Indeed, in Judge Rodowsky’s view, not only was the “primary purpose” clause constitutionally infirm, but the periodic discrimination provision failed for exactly the same reasons. Id. at 86-87, 501 A.2d at 834. Judges Eldridge and Rodowsky differed on the severability issue; Judge Rodowsky agreed with the Chief Judge that the “primary purpose” clause was nonseverable, and hence, the entire anti-discrimination provision was void. Id. at 85, 501 A.2d at 833.
A principal point of contention in Burning Tree I was the particular level of application of the disputed anti-discrimination provision. The Chief Judge regarded Section 19(e)(4)(i) as neutral, because in principle an all-female club could operate as a mirror-image of Burning Tree and enjoy the state tax benefit, so that the universe of consideration was the set of all eligible country clubs. Id. at 71, 501 A.2d at 826. According to this view, all country clubs were situated equally with respect to the open space program; all-female clubs and all-male clubs were free to discriminate equally, and hence, there was no ERA violation. The fact that a single all-male club just happened to be the only eligible entity under Section 19(e)(4)(i) was, in this view, an irrelevant coincidence.
A majority of the Court, however, held that the universe of consideration was each particular participating club. Judge Rodowsky stated this proposition explicitly:
*366 It is not an answer to the subject argument of the appellees to say that at the elevated level of the statewide open space program established by § 19(e) the program is neutral with respect to sex, in the sense that an all female or an all male country club is eligible to participate. The ostensible prohibition against sex discrimination applies to each individual country club participating in the open space program. The universe of consideration for the particular problem created by this antidiscrimination law is any participating country club, in and of itself
Id. at 87, 501 A.2d at 834 (emphasis added), and Judge Eldridge agreed, because he directly refuted the position of the Chief Judge. Id. at 95, 501 A.2d at 838 (“[T]he three apparently do not view the express sanctioning of single sex clubs as imposing a burden upon the excluded sex, as long as the governmental action in theory equally sanctions discrimination by single sex facilities against persons of the other sex.”).
Ironically, the positions set out by Judges Eldridge and Rodowsky find support in an article by Barbara A. Brown, Thomas I. Emerson, Gail Falk & Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 889-93 (1971), cited at several points as support in the minority opinion of Chief Judge Murphy. Burning Tree I, 305 Md. at 64 & n. 3, 70, 79, 501 A.2d at 822 & n. 3, 825, 830. The Brown article defines why the separate but equal theory implicit in the Chief Judge’s opinion ultimately subverts the meaning and purpose of the ERA. Because the “basic principle” of the ERA is that “sex is not a permissible factor” in determining the legal rights of women and men, it follows that “the treatment of any person ”
To summarize, in Burning Tree I a majority of this Court applied strict scrutiny to invalidate an ostensibly neutral statute that drew sex-based classifications. The analysis focused on the individual level to determine whether the State had granted a benefit or imposed a burden on the basis of sex. Four Judges of this Court rejected the separate but equal approach suggested in Chief Judge Murphy’s minority opinion.
2. Maryland ERA Jurisprudence Before Burning Tree I
Because I disagree with the majority about the meaning and purpose of the ERA, and because the legislative history of the ERA is so sparse,
In Maryland State Board of Barber Examiners v. Kuhn, 270 Md. at 498, 312 A.2d at 217-18, a group of cosmetologists mounted a constitutional challenge to a statutory scheme that prohibited them from cutting and shampooing men’s hair on the same basis as women’s. One of the statutes at issue, Section 529(a) of Article 43, Maryland Code (1957, 1973 Supp.), defined the professional services performed by cosmetologists as “work ... for the embellishment, cleanliness and beautification of women’s hair.”
In holding that Article 46 was inapplicable, id. at 505-06, 312 A.2d at 221-22, this Court said that “the statute [did] not discriminate against cosmetologists of either sex; nor, for that matter, [was] there discrimination based on sex between barbers.” Id. at 505, 312 A.2d at 221. The Court conceded that “if a group of males, individually and on behalf of others similarly situated, were complaining that because of their sex, they were being denied the services of cosmetologists,” the result would have been different. Id. at 505-06, 312 A.2d at 221. Rather, Article 46 was inapplicable because the statute at issue treated every cosmetologist and barber exactly the same, and because the victims of discrimination were not parties to the case. Therefore, Kuhn stands for the proposi
In Rand v. Rand, 280 Md. at 510-11, 374 A.2d at 902, this Court considered whether the common law duty of paternal support of minor children survived the enactment of the ERA. In a unanimous opinion, the Court held:
The words of the E.R.A. are clear and unambiguous; they say without equivocation that “Equality of rights under the law shall not be abridged or denied because of sex.” This language mandating equality of rights can only mean that sex is not a factor.
Id. at 511-12, 374 A.2d at 902-03. Therefore, the ERA mandated that the parental duty of child support was shared jointly by both parents, in derogation of the common law rule. Id. at 517, 374 A.2d at 905.
In its interpretation of the Maryland ERA, the Rand Court examined eases from a number of other states construing similar provisions in their own constitutions. Id. at 512-16, 374 A.2d at 903-05. At the conclusion of its analysis, a unanimous Court stated:
It is thus clear that the tests employed under constitutional provisions dealing with equality of rights range from absolute to permissive. Like the Supreme Court of Washington, however, we believe that the “broad, sweeping, mandatory language” of the amendment is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the E.R.A. in this [Sjtate was intended to, and did, drastically alter traditional views of the validity of sex-based classifications.
Other cases prior to Burning Tree I invalidated sex-based classifications on the basis of Article 46. For example, in Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980), this Court considered whether the common law cause of action for criminal conversation remained viable in light of the ERA. At common law,
the cause of action for criminal conversation was available only to a man. The gravamen of this action was adultery. Its elements consisted of a valid marriage and an act of sexual intercourse between a married woman and a man other than her husband. The fact that the wife consented, that she was the aggressor, that she represented herself as single, that she was mistreated or neglected by her husband, that she and her husband were separated through no fault of her own, or that her husband was impotent, were not valid defenses.
Id. at 586-87, 414 A.2d at 930 (citations omitted). The Court applied Article 46, as construed in Rand, to abrogate the cause of action for criminal conversation. Id. at 593, 414 A.2d at 933.
In the present case, the majority interprets Kline to buttress its view that the ERA must be applied under a benefits/burdens analysis. See op. at 258-59 & n. 24, 932 A.2d at 594 & n. 24; Kline, 287 Md. at 592, 414 A.2d at 932 (“explicating this Court’s holding that it would be unconstitutional to impose a burden on fathers which was not equally imposed on
Because the elements of the tort of criminal conversation were a valid marriage and an act of sexual intercourse between the wife and a man other than her husband, it is obvious that the wife lacked a legally cognizable cause of action against the (hypothetical) mistress of her husband, whereas, at common law, the husband had a valid cause of action against the paramour of his wife. Kline, 287 Md. at 586-87, 414 A.2d at 930. But for the fact that the husband was male, he would have been unable to sustain the cause of action. It was obvious to the Court that the unequal rights under the law enjoyed by the wife, compared to the husband, could not survive the scrutiny mandated by the ERA. Id. at 593, 414 A.2d at 933 (“A man has a cause of action for criminal conversation, but a woman does not.”).
The same conclusion results from a comparison of the legal obligations of the paramour and a hypothetical female mistress of the husband. At common law as it existed in this State up to 1980, for the act of engaging in sexual relations with the wife, the paramour was liable for damages to the husband. But for the fact he was male, the paramour would have suffered no liability. The hypothetical female mistress in our example could not have been sued for criminal conversation if she had engaged in sexual relations with the husband, even though she had engaged in the same conduct as the paramour. Clearly, such a sex-based classification scheme could not withstand the scrutiny mandated by the ERA. Id. (“The common law cause of action for criminal conversation ... cannot be reconciled with our commitment to equality of the sexes.”).
It is also noteworthy that the Kline Court examined the legislative history surrounding criminal conversation and determined that, standing alone, history would have supported the inference that the General Assembly had intended to leave the common law doctrine in place. 287 Md. at 590-91, 414 A.2d at 931-32. In 1945, the General Assembly had abolished the closely related cause of action for alienation of affections,
In Condore v. Prince George’s County, 289 Md. 516, 425 A.2d 1011 (1981), this Court considered whether the common law doctrine of necessaries survived the enactment of the ERA. The majority determined that the ERA abrogated the doctrine, under which “the husband had a legal duty to supply his wife with necessaries suitable to their station in life, but the wife had no corresponding obligation to support her husband, or supply him with necessaries, even if she had the financial means to do so.” Id. at 520, 425 A.2d at 1013. The Court agreed unanimously that the ERA mandated sex-neutrality for the doctrine of necessaries. Compare id. at 532, 425 A.2d at 1019 (“[E]xtend[ing] the common law necessaries doctrine to impose liability upon wives,” or “eliminating the necessaries doctrine in its entirety,” both would satisfy the “general purpose of the ERA to proscribe sex-based classifications.”), with id. at 533, 425 A.2d at 1019 (Rodowsky, J., dissenting) (“I agree that this Court has the power to decide, based on the ERA ... that the necessaries doctrine applies alike to both sexes.”).
The majority relied on Rand in its determination “that the words of the ERA clearly and unambiguously mandated equality of rights between men and women and ‘canonly mean that sex is not a factor.’ ” Id. at 524, 425 A.2d at 1015, quoting Rand, 280 Md. at 512, 374 A.2d at 903. The dissenters likewise believed “the ERA and acts of the General Assembly have made it plain beyond doubt that family support obligations are no longer exclusively imposed on the male.” Id. at 533, 425 A.2d at 1020. Nowhere did the Court invoke comparisons of “men and women as classes.” See op. at 254, 932 A.2d at 591.
To summarize, in the years prior to Burning Tree I, our cases construing the ERA consistently applied strict scrutiny to sex-based classifications. This Court repeatedly affirmed its commitment to uphold the will of the People of Maryland to eradicate state sanctioned unequal treatment based on the happenstance of a particular person’s sex.
In Burning Tree I, Judge Eldridge also examined cases from other jurisdictions interpreting state constitutional amendments similar to Maryland’s ERA, Burning Tree I, 305 Md. at 96-98, 501 A.2d at 839-40, and recognized that courts in Massachusetts, Washington and Illinois interpreted ERA provisions in their own constitutions to require strict scrutiny of sex classifications.
For example, the Supreme Judicial Court of Massachusetts interpreted the Massachusetts ERA
The enactment of House No. 6723 would violate [the Massachusetts ERA]. The absolute prohibition in the proposed legislation cannot survive the close scrutiny to which a statutory classification based solely on sex must be subjected. A prohibition of all females from voluntary participation in a particular sport under every possible circumstance serves no compelling State interest.
Id. at 429-30.
Judge Eldridge also relied upon Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 893 (1975), in which the Supreme Court of Washington invalidated a ban on girls’ participation on high school football teams. A school district in Washington had prohibited two sisters from playing on a football team because their participation was barred by a rule of the Washington Interscholastic Activities Association (“WIAA”), a statewide association of high schools. Id. at 883-84. As a preliminary matter, the court addressed the applicable standard of review under the Equal Protection Clause of the Fourteenth Amendment, and its State counterpart, Article I, Section 12 of the Washington Constitution.
[t]he overriding compelling state interest as adopted by the people of this state in 1972 is that: “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.”
Id. at 893. Because the involvement of public high schools in the WIAA implicated the state action doctrine, id. at 891, the court applied the “overriding compelling state interest” embodied in the ERA to invalidate the statewide ban on girls’ participation in high school interscholastic football. Id. at 893.
A third case relied upon by Judge Eldridge in Burning Tree I was People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, 101 (1974), in which the Supreme Court of Illinois interpreted the ERA
4. Strict Scrutiny for Sex-Based Classifications Even Where Facially Neutral
On the basis of Rand and its progeny, and eases in sister states interpreting similar constitutional provisions, Judge Eldridge in Burning Tree I concluded that “the E.R.A. renders sex-based classifications suspect and subject to at least strict scrutiny, with the burden of persuasion being upon those attempting to justify the classifications.” Burning Tree I, 305 Md. at 98, 501 A.2d at 840 (emphasis in original). Therefore, “[i]n this respect, the E.R.A. makes sex classifications subject to at least the same scrutiny as racial classifications.” Id. (emphasis added). Even a facially neutral statute can implicate strict scrutiny if the purpose and effect of the classification are discriminatory, Judge Eldridge concluded. Id. at 100, 501 A.2d at 841. Indeed,
[i]f the purpose and effect of the primary purpose provision had related to single race rather than single sex clubs, the provision, regardless of any alleged neutrality in the language, would clearly fall under the principles of Hunter v. Underwood[31 ]; Arlington Heights v. Metropolitan Housing
Id. at 102, 501 A.2d at 842 (emphasis added). In Judge Eldridge’s view, Section 19(e)(4)(l), which prohibited discrimination on the grounds of race, color, creed, sex, or national origin, but permitted sexual discrimination when the country club’s primary purpose was “to serve or benefit members of a particular sex,” was unconstitutional both on its face and in its effect. Id. at 99-102, 501 A.2d at 840-42. Because at all times from the enactment of the “primary purpose” anti-discrimination provision, until the time the case was litigated, Burning Tree was the only entity to which the provision applied, id. at 100, 501 A.2d at 841, it was undisputed that the purpose and effect of Section 19(e)(4)(l) were “to permit one country club to maintain its discriminatory policy while continuing to receive a substantial state benefit.” Id. at 101, 501 A.2d at 841. In that respect, Burning Tree I was indistinguishable from a line of Supreme Court eases that invalidated ostensibly neutral laws the effects of which were patently discriminatory on grounds of race. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227, 233, 105 S.Ct. 1916, 1919-20, 1923, 85 L.Ed.2d 222, 227-28, 231 (1985) (facially neutral state
To summarize, in Burning Tree I, a majority of this Court interpreted our prior cases to mandate a robust interpretation of the ERA. Henceforth, government action resulting in sex-based classifications would be subject to strict scrutiny, with the burden placed on the proponents of the classifications to demonstrate they were narrowly tailored to further a compelling state interest. This Court took special care to look beneath ostensibly neutral classifications to their underlying purpose and effect, in order to ferret out state sanctioned discrimination masquerading as facially neutral law.
B. Burning Tree II
In Burning Tree II, this Court adopted Judge Eldridge’s rationale in Burning Tree I and rejected the benefits/burdens analysis of Chief Judge Murphy, invalidating what was termed a “sex neutral” law. In response to the decision of this Court in Burning Tree I, the effect of which was to remove the anti-discrimination provision in its entirety from Section 19(e), the General Assembly enacted 1986 Maryland Laws, Chapter 334, which attempted to reenact the periodic discrimination provision.
For the precise reasons the “primary purpose” clause failed under Article 46, Chapter 334 failed as well. Id. at 294-95, 554 A.2d at 386-87. Exactly like Section 19(e), Chapter 334 drew séx-based classifications: first, Chapter 334 distinguished sex-based discrimination from other types of discrimination; second, Chapter 334 permitted some types of sex discrimination (periodic), but proscribed others (total). Id. In addressing the State’s contention that physical differences between the sexes justified the contested provision, this Court said:
In order to justify a racially or sexually discriminatory statute, it is not enough for the State to claim legitimate interests which it seeks to further. Under strict scrutiny, legislation must be narrowly tailored and precisely limited to achieving those legitimate ends.
Id. at 296, 554 A.2d at 387. We held
The majority in the present case fails to recognize that Burning Tree II clearly adopted strict scrutiny as the standard in ERA cases. Regardless of whether ostensibly the sexes are benefitted or burdened equally by a statutory classification, that statute must withstand strict scrutiny under the ERA or else be invalidated. Id. at 293-96, 554 A.2d at 386-87. “In order to justify a racially or sexually discriminatory statute, it is not enough for the State to claim legitimate interests which it seeks to further.” Id. at 296, 554 A.2d at 387. Rather, the State must shoulder the heavy burden of demonstrating that the means chosen are the most restrictive possible consistent with achieving a compelling state interest. Furthermore, the holding of Burning Tree II on the ERA issue relied on the “analytically indistinguishable [Burning Tree I ] case,” Burning Tree II, 315 Md. at 294, 554 A.2d at 386, which, as I have demonstrated, traces its reasoning back to Rand and ultimately, to the enactment of Article 46 itself. Therefore, the majority in the present case errs fundamentally in its assertion that “[virtually every Maryland case applying Article 46 has dealt with situations where the distinction drawn by a particular governmental enaction or action singled-out for disparate treatment men and women as discrete classes.” See op. at 258-59, 932 A.2d at 594.
Contrary to the assertion of the majority in the present case, our cases subsequent to Burning Tree II have held that state action effecting classifications solely on the basis of sex is subject to strict scrutiny under the ERA.
Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993), was an appeal of a murder conviction in which the defendants contested the State’s use of peremptory challenges to strike women from the jury pool. This Court extended Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 82-83 (1986) (race-based peremptory strikes presumptively invalid under equal protection analysis), in light of Articles 24 and 46 of the Maryland Declaration of Rights, to hold that sex-based peremptory strikes are prohibited. In the words of Judge Orth, speaking for the majority:
The equality of rights under law, without regard to gender, bestowed by Art. 46 of the Maryland Declaration of Rights, flowing through the equal protection guarantees of Art. 24 of the Maryland Declaration of Rights to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), prohibits the State in a criminal prosecution from using peremptory challenges so as to exclude a person from service as a juror because of that person’s sex.
Tyler, 330 Md. at 270, 623 A.2d at 653 (emphasis added). Because the Supreme Court had not yet
It is noteworthy that in extending Batson to sex-based peremptory strikes, we applied strict scrutiny to vindicate the right of an individual stricken juror not to suffer state sanctioned discrimination, rejecting a separate but equal approach. See Tyler, 330 Md. at 263, 623 A.2d at 649 (“ ‘[T]he State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.’ ”), quoting Batson, 476 U.S. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 82. Compare Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773 (1965) (“[W]e cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.”), with Batson, 476 U.S. at 92 n. 17, 106 S.Ct. at 1721 n. 17, 90 L.Ed.2d at 85 n. 17 (In overruling Swain, the Court noted the “practical difficulties” faced by the defendant who must demonstrate a systematic use of peremptory challenges to exclude African-Americans “over a number of cases.”). Whereas Swain burdened the defendant with the virtually impossible task of demonstrating a pervasive discriminatory pattern over the course of many trials, Batson reduced the defendant’s evidentiary burden by focusing on a single trial, and then shifting the burden of persuasion to the State upon satisfaction of a greatly diminished burden of production by the defendant. 476 U.S. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. Moreover, the Batson Court noted the application of equal protection principles to the excluded ju
Ultimately, the Supreme Court recognized explicitly the equal protection right of an individual juror “not to be excluded from [a petit jury] on account of race” in Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411, 424 (1991), where the Court extended Batson to cover instances of peremptory strikes exercised against potential jurors of a different race than that of a criminal defendant and repudiated the doctrine of separate but equal in the context of peremptory challenges. The Court consciously “reject[ed] ... the view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors.” Powers, 499 U.S. at 410, 111 S.Ct. at 1370, 113 L.Ed.2d at 424-25. See also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 159, 114 S.Ct. 1419, 1437, 128 L.Ed.2d 89, 116 (1994) (Scalia, J., dissenting) (criticizing the majority for “focusing unrealistically upon individual exercises of the peremptory challenge,” and arguing unsuccessfully in favor of a group-based equal protection analysis of sex-based peremptory strikes). Thus, in adopting the Supreme Court’s equal protection analysis under Batson and its progeny and applying that reasoning in light of the ERA, our holding in Tyler flatly contradicts the equal application approach espoused by the majority in the instant case.
Giffin v. Crane, 351 Md. at 133, 716 A.2d at 1029, likewise was entirely consistent with the interpretation of the ERA as applicable to individuals. In Giffin, this Court faced the question whether Article 46 permitted a judge to weigh, as a relevant factor in a child custody proceeding, the sex of either parent in awarding physical custody. Id. at 143, 716 A.2d at 1034. We noted that, under the best interest of the child standard, the trial judge exercises broad discretion. Id. at 144-45, 716 A.2d at 1035. That discretion is not unlimited, however; the judge cannot, consistent with the “clear, unambiguous and unequivocal” language of Article 46, id. at 148,
In Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998), a candidate running for Maryland State Senate filed suit in the Circuit Court for Anne Arundel County to strike the name of his opponent from the ballot on the basis of an alleged failure to satisfy the residency requirements. At issue was whether the incumbent, Senator Clarence W. Blount, could run for reelection in a district entirely in Baltimore City despite the fact that he spent some “90 percent” of his nights at a condominium maintained by his wife in Pikesville, Baltimore County. Id. at 375, 718 A.2d at 1119. This Court conducted a thorough analysis of the law of domicile in light of Article III, Section 9 of the Maryland Constitution,
Other cases have affirmed that strict scrutiny is the rule applied to state action that draws classifications on the basis of sex. See Ehrlich v. Perez, 394 Md. 691, 717 n. 10, 908 A.2d 1220, 1236 n. 10 (2006) (“ ‘[B]ecause of the Equal Rights Amendment to the Maryland Constitution ..., classifications based on gender are suspect and subject to strict scrutiny.’ ”); Murphy v. Edmonds, 325 Md. 342, 357 n. 7, 601 A.2d 102, 109 n. 7 (1992) (same); Ritchie v. Donnelly, 324 Md. 344, 366, 597 A.2d 432, 443 (1991) (sex-based discharge of State employee “clearly not permitted” by Article 46); Briscoe v. Prince George’s County Health Dept., 323 Md. 439, 452 n. 7, 593 A.2d 1109, 1115 n. 7 (1991) (“[B]ecause of Article 46 ..., gender-based classifications are suspect and are subject to strict scrutiny. Consequently, a classification based on gender is in no way comparable to an employment classification based on different occupations.”) (citations omitted).
D. Other States Have Interpreted Similar Constitutional Provisions to Require Strict Scrutiny.
Because it is settled law in Maryland that sex-based classifications implicate strict scrutiny under the ERA, Burning Tree II, 315 Md. at 293-96, 554 A.2d at 386-87, the majority must
In cases that actually applied some version of the ERA to sex-based classifications, courts have consistently adopted strict scrutiny as the proper analytical framework. For example, the Supreme Court of New Mexico considered whether the Secretary of the New Mexico Human Services Department could implement a regulation, Rule 766,
The court interpreted the New Mexico ERA
Based on our review of the text and history of our state constitution, we conclude that New Mexico’s Equal Rights Amendment is a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination that prevailed under the common law and civil law traditions that preceded it. As such, the Equal Rights Amendment requires a searching judicial inquiry*391 concerning state laws that employ gender-based classifications. This inquiry must begin from the premise that such classifications are presumptively unconstitutional, and it is the State’s burden to rebut this presumption.
The Department argued that Rule 766 should not have been subjected to strict scrutiny because the classification at issue was based on a physical condition unique to one sex, and thus, males and females could not possibly be situated similarly with respect to that condition. Id. at 854. The court conceded that “not all classifications based on physical characteristics unique to one sex are instances of invidious discrimination,” and thus, the presumptive unconstitutionality of such classifications is rebuttable. Id. See Brown, supra at 893. The court emphasized, however, that “similarly situated” cannot mean simply that every member of the class possesses the classifying trait, because under that test, every classification would be reasonable. N.M. Right to Choose, 975 P.2d at 854. See Joseph Tussman & Jacobus tenBrock, The Equal Protection of the Laws, 37 Cal. L.Rev. 341, 345 (1949). Instead, the court looked “ ‘beyond the classification to the purpose of the law.’ ” N.M. Right to Choose, 975 P.2d at 854, quoting Tussman & tenBrock, supra, at 346. Accord Burning Tree I, 305 Md. at 100, 501 A.2d at 841 (“[A]n inquiry into the actual facts, to determine the existence of a discriminatory purpose and impact, is appropriate.”).
Because the statutory purpose was to provide qualified persons with necessary medical care, the court found that men and women who met a general need-based test for Medicaid eligibility were similarly situated, N.M. Right to Choose, 975 P.2d at 855, but that Rule 766 applied a different standard of medical necessity to women than to men. Id. at 856. The Department alleged two compelling interests, cost reduction and the protection of potential life, but the court found them self-contradictory and inadequate, id. at 856-57, and that Rule 766 was not narrowly tailored to achieving those interests. Id. at 857.
The court contrasted its standard of review of sex-based classifications with the more lenient federal equal protection standard,
The Supreme Court of Colorado applied “the closest judicial scrutiny” under that state’s ERA
E. Singer v. Hora and Andersen v. King County not Persuasive
The majority in the present case considers a number of cases from our sister states as persuasive authority. See op. at 265-67, 932 A.2d at 598-99. As I have pointed out, many of these cases did not address the application of equal rights amendments. Of those that did, two are most significant: Andersen v. King County, 158 Wash.2d 1, 138 P.3d 963 (2006), and Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974). Because there have been close parallels between ERA jurisprudence in Maryland and Washington State, Burning Tree I, 305 Md. at 95-96, 501 A.2d at 838-39; Rand, 280 Md. at 512-15, 374 A.2d at 903-04, and because that State has interpreted
Unlike in Maryland, there was a legal challenge to the statutory ban on same-sex marriages in Washington shortly after that State adopted its ERA. Singer, 522 P.2d at 1187. Two men who had been denied a marriage license sought a court order to compel a county official to issue the license, and when the trial court denied their motion to show cause why the license should not be issued, the men appealed on several grounds: first, they alleged the trial court erred in construing the statute to prohibit same-sex marriage; second, the appellants claimed that the marriage statute as applied violated the ERA; and third, the appellants claimed violations of the Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution. Id. at 1188-89.
During the relevant time period, the marriage statute stated as follows:
Marriage is a civil contract which may be entered into by persons of the age of eighteen years, who are otherwise capable: Provided, That every marriage entered into in which either party shall not have attained the age of seventeen years shall be void except where this section has been waived by a superior court judge of the county in which the female resides on a showing of necessity.
Id. at 1189 n. 2; Wash. Rev.Code Section 26.04.010 (1970). The Court of Appeals of Washington interpreted the statute to prohibit same-sex marriage, relying in part on the plain language of the statute, which used the word “female” in singular form, thereby “implying that a male was contemplated as the other marriage partner,” and relying also on the context provided by closely related statutes,
More recently, the Supreme Court of Washington was faced with the same question addressed in Singer. In Andersen v. King County, 138 P.3d at 963, a challenge to the Washington Defense of Marriage Act (“DOMA”),
Men and women are treated identically under DOMA; neither may marry a person of the same sex. DOMA therefore does not make any “classification by sex,” and it does not discriminate on account of sex.
Andersen, 138 P.3d at 988, citing Singer, 522 P.2d at 1195. In this respect, the Andersen court echoes the opinion of the majority in the instant case. See op. at 265-66, 932 A.2d at 599. The difficulty lies in the inability of the Andersen court to recognize the true nature of the classification at issue; by failing to distinguish between sex-based classifications and those grounded in sexual orientation, the court avoids application of the ERA at the outset. Andersen, 138 P.3d at 988 (denial of marriage license “not based on their sex but upon the fact they were both of the same sex”), citing Singer, 522 P.2d at 1195. Cf. op. at 277, 932 A.2d 605, (“While Family Law § 2-201 does not draw a distinction based on sex, the legislation does differentiate implicitly on the basis of sexual preference.”). In all significant respects, the Andersen court adopted the ERA analysis of Singer, and thus, makes the same errors. Furthermore, the majority in the present case adopts the analysis of Singer and Andersen, and therefore, adopts those errors as well.
In my view, the Singer court erred in two significant respects: first, the court misconstrued the nature of the classification established by the same-sex marriage prohibition; second, the court analyzed the impact of the classification scheme as it applied to couples, rather than to individuals, and cited no authority for so doing. The Washington same-
An interesting distinction may be drawn between Singer and the present case. Whereas the Singer court defined marriage as “the legal union of one man and one woman” on the basis of case law and the overall context of the statutory scheme, 522 P.2d at 1191, the present case differs because the plain language of Section 2-201 draws a distinction between a marriage between a man and a woman, and marriages between two men or two women. Furthermore, Section 2-201 clearly contemplates the possibility of marriages between two men or two women, because it singles out for special treatment “only” those marriages between a man and a woman. Therefore, the language of Section 2-201 itself refutes the notion that the definition of marriage necessarily does not include same-sex marriages.
In its analysis of the impact of the same-sex marriage prohibition on the appellants, the Singer court implicitly adopted the separate but equal theory relied upon by the majority in the instant case. Compare id. (“[T]he state suggests that appellants are not entitled to relief under the ERA because they have failed to make a showing that they are somehow being treated differently by the state than they would be if they were females. Appellants suggest, however, that the holdings in [Loving, Perez ] and J.S.K. Enterprises,
The majority offers no principled basis for applying equal protection analysis to couples rather than to individuals, for the simple reason that there is no principled basis for the distinction. In order to get around this obstacle, the majority posits the notion that Family Law Section 2-201 is facially neutral, and hence, the proper test for evaluating whether sex discrimination has occurred is to search for a discriminatory purpose. See op. at 270-71, 932 A.2d at 601-02. Having determined, mistakenly in my view, that Section 2-201 does not classify on the basis of sex, the majority then reaches the conclusion that the purpose of the same-sex marriage prohibition cannot be linked to a “ ‘designf ] to subordinate either men to women or women to men as a class.’ ” See op. at 270, 932 A.2d at 601, quoting
The principal purpose of this opinion is to respond to the positions taken in Parts YI-IX of Chief Judge Murphy’s*399 opinion announcing the judgment of the Court, even though that opinion is not an opinion of the Court. If the views set forth in Parts VI-VIII of Chief Judge Murphy’s opinion were in the future to be adopted by a majority of this Court, the effectiveness of the Equal Rights Amendment to the Maryland Constitution would be substantially impaired.
Burning Tree I, 305 Md. at 88, 501 A.2d at 835.
F. Strict Scrutiny and the Present Case
Our cases stand for the proposition that all state action that draws sex-based distinctions, regardless of whether such action “directly impostes] a burden or conferts] a benefit entirely upon either males or females,” id. at 95, 501 A.2d at 838 (opinion of Eldridge, J.), implicates the ERA and must be subjected to strict scrutiny. See In re Roberto d.B., 399 Md. 267, 279 n. 13, 923 A.2d 115, 122 n. 13 (2007) (“This Court has applied a strict scrutiny standard when reviewing gender-based discrimination claims.”); Murphy, 325 Md. at 357 n. 7, 601 A.2d at 109 n. 7 (“In Maryland, because of the Equal Rights Amendment to the Maryland Constitution ..., classifications based on gender are suspect and subject to strict scrutiny.”); Burning Tree II, 315 Md. at 293, 554 A.2d at 386 (“In [.Burning Tree I], ... a majority of this Court took the position that the enactment of legislation which on its face draws classifications based on sex is state action sufficient to invoke the E.R.A.”). Until today, this Court has never shied away from that standard when applying the ERA. See Giffin, 351 Md. at 148, 716 A.2d at 1037 (“[T]he [Equal Rights] Amendment can only mean that sex is not, and can not be, a factor in the enjoyment or the determination of legal rights.”); id. at 149, 716 A.2d at 1037 (“[T]he Equal Rights Amendment flatly prohibits gender-based classifications, absent substantial justification, whether contained in legislative enactments, governmental policies, or by application of common law rules.”); Burning Tree II, 315 Md. at 295, 554 A.2d at 387 (“Plainly, under prior holdings of this Court, state action providing for segregation based upon sex, absent substantial justification, violates the E.R.A., just as segregation based upon race
In a recent case we reviewed the constitutionality of a statutory scheme
In the instant case, the State argues on the basis of the equal application theory of the ERA that Section 2-201 does not implicate Article 46. In its brief, the State points to the dissenting opinion of Chief Judge Murphy in Burning Tree I, 305 Md. at 64, 501 A.2d at 822, to support its view that Section 2-201 passes muster because its prohibitions burden both sexes equally. To bolster its argument, the State quotes from Giffin, 351 Md. at 149, 716 A.2d at 1037, which in turn cites the opinion of Chief Judge Murphy in Burning Tree I. The State omits the following key portion from Giffin: “[T]he equality between the sexes demanded by the Maryland Equal Rights Amendment focuses on ‘rights’ of individuals ‘under the law,’ which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens.” Id. Thus, the passage from Giffin does not support the State’s argument; neither does the Court’s holding in the case, as I explained previously. Furthermore, as I have explained in great detail, the opinion of Chief Judge Murphy in Burning Tree I was a minority view insofar as its theory of the scope and effect of the ERA was concerned. Therefore, the State’s argument is fundamentally misplaced. Likewise, the State’s reliance on Cannon v. Cannon, 384 Md. 537, 572 n. 19, 865 A.2d 563, 583 n. 19 (2005), is unpersuasive. Although Cannon was correct
To summarize, in a long line of cases extending back to Gáffin, Burning Tree I and II, Condore, Kline and Rand, we have consistently interpreted the ERA to require that the rights of any person cannot depend on sex-based classifications, unless the State demonstrates a compelling governmental interest, and then only if the classification is narrowly tailored and precisely limited to achieving that compelling interest. Today this Court denies the commitment to equal rights made by the General Assembly and ratified by the People of this State in 1972. As we said in Giffin, 351 Md. at 148-49, 716 A.2d at 1037, and iterated in In re Roberto d.B., 399 Md. at 281, 923 A.2d at 123-24:
“The basic principle of the Maryland Equal Rights Amendment, thus, is that sex is not a permissible factor in determining the legal rights of women, or men, so that the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other!;] that amendment generally invalidates governmental action which imposes a burden on, or grants a benefit to, one sex but not the other one.”
(emphasis added). Clearly, this language means that the analysis must focus on the individual whose rights are infringed by the sex-based classification, because rights accrue to the individual, not to couples, or to some abstract group entity. We emphasized that equal rights between the sexes are personal, not group, rights:
“[T]he equality between the sexes demanded by the Maryland Equal Rights Amendment focuses on ‘rights’ of individuals ‘under the law,’ which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens.*403 As to these, the Maryland E.RA. absolutely forbids the determination of such ‘rights,’ as may be accorded by law, solely on the basis of one’s sex, i.e., sex is an impermissible factor in making any such determination.”
Id. at 281-82, 923 A.2d at 124, quoting Griffin, 351 Md. at 149, 716 A.2d at 1037 (alteration in original). The majority in the present case deliberately misconstrues the passage quoted above through selective quotation, conveniently omitting the second sentence, to support its narrowly constrained view of the ERA as somehow permitting separate but “equal” in matters of sex discrimination. See op. at 258-59, 932 A.2d at 594-95. Its strained interpretation ignores what until today had been well-settled in Maryland: the ERA is intended to address the rights of individuals, not the rights of “men and women as classes.” See op. at 259, 932 A.2d at 595 (emphasis in original). Our predecessors stated a similar idea in Rand, 280 Md. at 511-12, 374 A.2d at 902-03:
The words of the E.R.A. are clear and unambiguous; they say without equivocation that “Equality of rights under the law shall not be abridged or denied because of sex.”
I repeat: the words of the ERA are clear and unambiguous and can only mean that the rights of any person under the law cannot be abridged because of sex. The majority today pursues a results-based jurisprudence that distorts our case law construing the ERA, and in so doing, dilutes its effect.
II. The State’s Arguments Against Applicability of Article 46
The State focuses most of its argument against application of strict scrutiny to the same-sex marriage ban, and I address those arguments now. First, the State argues that the legislative history of Article 46 and Family Law Section 2-201 compels the conclusion that the same-sex marriage ban is constitutional.
The State points to the voting records surrounding Article 46 of the Declaration of Rights and Section 1 of Article 62, Maryland Code (1957, 1979 Repl.Vol.), the predecessor to
The difficulty with this argument is two-fold. First, the State offers no basis for distinguishing the situation involving
In this regard, it has been held that a contemporaneous construction placed upon a particular provision of the Maryland Constitution by the legislature, acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period, furnishes a strong presumption that the intention is rightly interpreted.
I find this argument unpersuasive in the present context. The relevant time frame in the instant case extends only to 1972, not to “a very early period,” because “[t]he adoption of the E.R.A. in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classifications.” Rand, 280 Md. at 515-16, 374 A.2d at 905. Therefore, the undeniable fact that marriage has always been recognized only between a man and a woman, although undoubtedly “acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period,” carries no greater legal weight in light of the ERA than the multitude of sex-based common law rules and presumptions that have been invalidated since 1972. See, e.g., Giffin, 351 Md. at 133, 716 A.2d at 1029; Condore, 289 Md. at 516, 425 A.2d at 1011; Kline, 287 Md. at 585, 414 A.2d at 929; Rand, 280 Md. at 508, 374 A.2d at 900.
This argument is entirely irrelevant to the question of constitutionality of sex-based classifications under Article 46 and hence, is a classic red herring. Although the majority asserts that Family Law Section 2-201 draws classifications based on sexual orientation, on its face the statute actually classifies on the basis of sex, not sexual orientation. Section 2-201 does not prohibit homosexuals from marrying; in fact, a homosexual male may marry either a heterosexual or homosexual female, and a homosexual female may marry either a heterosexual or homosexual male. Only by virtue of a person’s sex is he or she prohibited from marrying a person of the same sex. Clearly, Section 2-201 draws distinctions based on sex and thus, the issue of sexual orientation simply does not enter into an ERA analysis.
The Appellees in the present ease allege that Section 2-201 has a discriminatory effect, regardless of its alleged facial neutrality, and that the landmark Supreme Court decision in Loving, 388 U.S. at 1, 87 S.Ct. at 1817, 18 L.Ed.2d at 1010, should control the outcome here. Loving involved the State assertion of an analogous allegedly neutral, generally applicable statute prohibiting miscegenation. Id. at 2, 87 S.Ct. at 1818, 18 L.Ed.2d at 1012. The Court applied strict scrutiny to the Virginia statute despite its ostensibly equal application to both races. Id. at 9, 87 S.Ct. at 1822, 18 L.Ed.2d at 1016 (“In the case at bar, ... we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.”). Not only did the Court weigh the long history of white supremacy and racial segregation heavily against the State, but the Court
The State attempts to distinguish Loving from the instant case on the basis that the same-sex marriage ban does not evince the intent to impose segregation based on sex. The State’s position is reinforced by amici, The Maryland Catholic Conference, who argue that “anti-miscegenation statutes were intended to keep persons of different races separate; marriage statutes, on the other hand, are intended to bring persons of the opposite sex together.” (emphasis in original). This argument begs the question whether Family Law Section 2-201 is facially neutral; it is well-settled that the question of discriminatory intent does not arise unless the threshold question of facial neutrality is answered in the affirmative. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 1549, 143 L.Ed.2d 731, 738 (1999) (“When racial classifications are explicit, no inquiry into legislative purpose is necessary.”); Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511, 525 (1993) (“No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute.”).
Here, there is no plausible assertion that Section 2-201 accrues only to the benefit of either men or women as a class. Just as in Rand, Kline, Condore, Burning Tree I and Giffm, however, there is sex discrimination at the level of the individual who wishes to marry but is precluded from doing so
III. Application of the Correct Standard to the Instant Case
I turn now to consider whether Family Law Section 2-201 (“Only a marriage between a man and a woman is valid in this State.”), survives strict scrutiny. A statutory classification will be upheld under strict scrutiny only if it “further[s] a compelling state interest,” and “if it is deemed to be suitably, or narrowly, tailored” to achieving that goal. Koshko v. Earning, 398 Md. 404, 438, 921 A.2d 171, 191 (2007); Burning Tree E, 315 Md. at 296, 554 A.2d at 387; Hornbeck, 295 Md. at 641, 458 A.2d at 781. Regardless of the strength of the governmental interest at stake, statutory classifications subject to strict scrutiny must “ ‘ “fit” this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate ... prejudice or stereotype.’ ” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226, 115 S.Ct. 2097, 2112, 132 L.Ed.2d 158, 181 (1995), quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 721, 102 L.Ed.2d 854, 882 (1989). In other words, the “classification at issue must ‘fit’ with greater precision than any alternative means.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 1850 n. 6, 90 L.Ed.2d 260, 272 n. 6 (1986), citing John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L.Rev. 723, 727 n. 26 (1974).
Other examples of sex-based classifications that were upheld under an ERA analysis include prohibitions on public nudity that prohibit display of female breasts, City of Seattle v. Buchanan, 90 Wash.2d 584, 584 P.2d 918 (1978); City of Albuquerque v. Sachs, 135 N.M. 578, 92 P.3d 24 (App. 2004); Messina v. State, 904 S.W.2d 178 (Tex.App. 1995), and affirmative action programs designed to alleviate the effects of past discrimination. Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 850 N.E.2d 533 (2006); S.W. Wash. Chapter, Nat’l Elec. Contractors Ass’n v. Pierce County, 100 Wash.2d 109, 667 P.2d 1092 (1983). Thus, strict scrutiny of sex-based classifications under the ERA need not always be “strict in theory, but fatal in fact.” Adarand, 515 U.S. at 237, 115 S.Ct. at 2117, 132 L.Ed.2d at 188 (citation omitted) (holding that minority set-asides must pass strict scrutiny, but emphasizing that “benign” discrimination may constitute a compelling state interest).
The only operative distinction between sex-based and race-based classifications obtains from “the inherent differences between the sexes”; thus, some sex-based classifications may survive strict scrutiny “whereas comparable race-based classifications could not be sustained.” Burning Tree I, 305 Md. at 98, 501 A.2d at 840. However, this distinction has been construed narrowly, generally applying only to cases of obvi
The implications of the “inherent differences” between males and females for the present case are unclear. There would appear to be a colorable argument that traditional marriage arose out of an inchoate recognition that reproduction of our species and thus, the very future existence of society, is inextricably linked to the state interest in promoting the formation of stable, nurturing families beginning with the intimate sexual union of a man and a woman. Fomshill v. Murray, 1 Bland 479, 481 (1828) (“Marriage has been considered among all nations as the most important contract into which individuals can enter, as the parent not the child of civil society.”) (emphasis added).
With regard to narrow tailoring, the Burning Tree cases themselves illustrate the concept through its exact opposite. The anti-discrimination provision invalidated in Burning Tree II, for instance, “permitted] a club to engage in periodic sex discrimination in any of its facilities for any reason at all”;
It is critical to bear in mind the allocation of burdens under the various equal protection review standards. Regardless of the applicable standard, the plaintiff always bears the initial burden of production, just as in any other civil cause. Under rational basis review, the plaintiff also shoulders the burden of persuasion, because rational basis review presumes the validity of the challenged classification. See, e.g., Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257, 271 (1993) (“A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification____A statute is presumed constitutional, and ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,’ whether or not the basis has a foundation in the record.”) (citations omitted) (alteration in original). Under both intermediate and strict scrutiny, on the other hand, the government has the burden of justifying the challenged classifications. See, e.g., Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 1146, 160 L.Ed.2d 949, 958 (2005) (“Under strict scrutiny, the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.’ ”), quoting Adarand Constructors, Inc., 515 U.S. at 227, 115 S.Ct. at 2113, 132 L.Ed.2d at 182; United States v. Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (Under intermediate scrutiny, “[t]he burden of justification is demanding and it rests entirely on the State.”); Hornbeck, 295 Md. at 641, 458 A.2d at 781 (“Laws which are subject to [strict scrutiny] violate the equal protection guarantee unless the State can demonstrate that
The compelling interests asserted in the State’s brief are (1) maintaining the same definition of marriage as that mandated by the Federal DOMA, 1 U.S.C. § 7 (2006); (2) ensuring that dramatic cultural changes be adopted through vigorous public debate culminating in legislative decisions; and (3) maintaining the traditional institution of marriage because it is so deeply ingrained in our history and traditions.
The first state interest expresses a general public policy of promoting comity in relations with our sister states and the federal government; undoubtedly that interest could comport with rational basis review, because the desire to conform Maryland laws with those of other jurisdictions has been a touchstone of our jurisprudence in many areas of the law. See, e.g., Section 9.5-101 et seq. of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.) (Maryland Uniform Child Custody Jurisdiction and Enforcement Act); Section 7-101 et seq. of the Criminal Procedure Article, Maryland Code (2001) (Uniform Postconviction Procedure Act); Section 11-1201 et seq. of the Commercial Law Article, Maryland Code (1975, 2005 Repl.Vol.) (Maryland Uniform Trade Secrets Act). The policy of promoting uniformity is not confined to our statutory law; our cases are replete with instances where we look to our sister states for guidance in interpreting our own common law. See, e.g., Burning Tree I, 305 Md. at 66-70, 95-98, 501 A.2d at 823-25, 838-40. The examples illustrating the point are literally too numerous to mention.
The fundamental difficulty with the State’s argument, however, is that it has pointed to no case, nor am I aware of a single case, where this Court has held that the desire to conform our laws to those of other jurisdictions rises to the level of a compelling interest. Indeed, the State’s position inverts the fundamental legal hierarchy, because the values embodied in the Maryland Constitution take precedence over every Act of the General Assembly. The only recognized exception, inapplicable to the present case, is where our
The State’s argument that there is “a compelling interest in ensuring that social and economic change of this type is accomplished through a robust public debate, through the legislative process” is wholly without merit. If we were to accept this argument, we would be ignoring the fact that “robust public debate” resulted in the adoption of the ERA. Moreover, the lone Maryland case cited by the State pertaining to legislative deference, Sugarloaf Citizens Ass’n v. Gudis, 319 Md. 558, 573 A.2d 1325 (1990), is easily distinguished from the instant case, because that case dealt with a county ethics law purporting to confer authority on a court to void legislation whenever it thought the public interest so required, which we determined violated the constitutional separation of powers mandated by Article 8
The power of determining finally on the validity of the acts of the Legislature cannot reside with the Legislature, because such power would defeat and render nugatory, all the limitations and restrictions on the authority of the Legislature, contained in the Bill of Rights and form of government, and they would become judges of the validity of their own acts, which would establish a despotism, and subvert that great principle of the Constitution, which declares that the powers of making, judging, and executing the law, shall be separate and distinct from each other.
It is the office and province of the Court to decide all questions of law which are judicially brought before them, according to the established mode of proceeding, and to determine whether an Act of the Legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant to the power vested by the Constitution in the Legislature; for if it is not the result of emanation of authority derived from the Constitution, it is not law, and cannot influence the judgment of the Court in the decision of the question before them.
Whittington v. Polk, 1 H. & J. 236, 243-44 (1802).
The final argument posed by the State is the public’s “direct interest” in marriage “as an institution of transcendent importance to social welfare.” Picarella v. Picarella, 20 Md.App. 499, 504, 316 A.2d 826, 830 (1974), citing to, inter alia, Fomshill, 1 Bland at 479. Indeed, in Fomshill our predecessors expressed the view that “[mjarriage has been considered
Although infertility is not a bar to marriage, it is nonetheless true that traditional marriage remains the only way to create families in which children are biologically related to both parents. Certainly it is true that opposite-sex couples can and do cohabit and produce offspring and thus create nontraditional families, but that very fact points to the substantiality of the state interest: the State asserts a strong interest in encouraging opposite-sex couples to formally recognize their child-bearing unions. The difficulty faced by the State is that this interest has been posed and defended successfully only under the deferential rational basis standard. See, e.g., Andersen, 138 P.3d at 982-83; Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 7. Likewise, the argument that the State has an interest in promoting marriage between opposite-sex couples because their careless sexual unions pose a significant possibility of creating offspring and all the attendant burdens and
The Appellees assert a number of reasons why Section 2-201 does not even rationally further a legitimate governmental interest, and thus purport to refute any compelling interest presented by the State on the theory that failure to survive the most deferential test obviously implies failure under strict scrutiny. Logically that theory is unassailable as far as it goes, but the Appellees do not address a crucial underlying assumption: in order to dispose of the opponent’s arguments, it is necessary in the first instance actually to address each opposing argument. Many of the arguments disposed of in the Appellees’ brief almost certainly would fail under the strict scrutiny mandated under Article 46. Thus, arguments that the same-sex marriage ban promotes cost savings or that the ban is justified on grounds of “legislative hegemony” obviously fail strict scrutiny. Indeed, such assertions approach the level of straw man arguments, a status undoubtedly applicable to the supposed state interest in “discrimination for its own sake.” The Appellees also dispute the notion that the same-sex marriage ban rationally furthers a legitimate state interest in child welfare; here the Appellees stand on shakier ground, and quite possibly would fail to sustain their burden if the standard were rational basis review. However, the correct standard is strict scrutiny, a much greater burden for the State.
Let us assume arguendo that the State has failed to meet its burden to demonstrate that there exist no “other, reasonable ways” posing “a lesser burden on constitutionally protected activity,” Dunn, 405 U.S. at 343, 92 S.Ct. at 1003, 31 L.Ed.2d at 285, to further the undoubtedly substantial state interest in promoting child welfare. At this stage there still remains the possibility that the Appellees are wrong in their assertion that there is no causal link between judicial recognition of same-sex marriage and the behavior of opposite-sex couples, an argu
Under our authority to order a remand so “that justice will be served by permitting further proceedings,” Md. Rule 8-604(d), I would remand this case to the Circuit Court for a full evidentiary hearing. Without expressing an ultimate opinion on whether the State could meet its burden, I believe the State’s unrebutted contention regarding the broad societal interest in retaining traditional marriage presents an issue of triable fact that requires a remand. “If there is any issue of fact undisposed of and remaining to be determined by the trier of the facts upon the weight of the evidence, summary judgment can not be granted.” Tellez v. Canton R.R. Co., 212 Md. 423, 431, 129 A.2d 809, 813 (1957). Especially in light of the grave issues of constitutional dimension presented here, I believe it is inappropriate to reach this issue on the basis of such an undeveloped record. See Montgomery County v. Broad. Equities, Inc., 360 Md. 438, 457, 758 A.2d 995, 1005
Chief Judge BELL has authorized me to state that he joins in this dissenting opinion.
. There have been three Burning Tree cases decided by this Court: State ex rel. Attorney Gen. v. Burning Tree Club, Inc., 301 Md. 9, 481 A.2d 785 (1984) (Burning Tree); Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 501 A.2d 817 (1985) (Burning Tree I); and State v. Burning Tree Club, Inc., 315 Md. 254, 554 A.2d 366 (1989) (Burning Tree II). Both the opinion of the trial court and the majority opinion of this Court address only the second and third cases and adopt the designations indicated. In order to prevent confusion, I have adopted the same methodology.
. Article 46 of the Maryland Declaration of Rights also is known as the Equal Rights Amendment (“ERA”).
. See Giffin v. Crane, 351 Md. 133, 149, 716 A.2d 1029, 1037 (1998); Burning Tree I, 305 Md. at 70, 501 A.2d at 825 (opinion of Murphy, C J.). According to the "equal application” approach, the ERA “generally invalidates” governmental action that “imposes a burden on, or grants a benefit to, one sex but not the other one.” Giffin, 351 Md. at 149, 716 A.2d at 1037. Under this approach, without a denial or abridgment of equal rights under the law “as between men and women,” the ERA is not implicated. Burning Tree I, 305 Md. at 70, 501 A.2d at 825.
. The Rand Court cited Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 893 (1975), for the proposition that the ERA itself was the compelling state interest in a strict scrutiny analysis under the Washington State version of the ERA. See also Burning Tree I, 305 Md. at 97, 501 A.2d at 839, where Judge John C. Eldridge pointed out that the Rand standard may be "stricter ... than the 'strict scrutiny’ test.”
. At the time the suit was originally filed, Stewart Bainum was also a Maryland State Senator from Montgomery County; however, this fact bore no relationship to his standing to bring suit. Burning Tree II, 315 Md. at 260 n. 2, 291, 554 A.2d at 369 n. 2, 385; Burning Tree I, 305 Md. at 59-60, 501 A.2d at 820.
. Section 19(e) of Article 81, Maryland Code (1957, 1980 Repl.Vol.), provided in relevant part (emphasis added):
*359 (e) Country clubs.—(1) The State Department of Assessments and Taxation shall have the power to make uniform agreements pursuant to this subsection relative to the assessment and taxation of lands actively devoted to use as a country club as defined herein.
(2) Pursuant to such agreement or any extension thereof with the State Department of Assessments and Taxation, land which is actively devoted to use as a country club as defined herein shall be assessed on the basis of such use for the period of time provided for in the agreement or any extension thereof and shall not be assessed as if subdivided or used for any oilier purpose, except in accordance with subparagraph (3) hereof.
(3) Whenever any land assessed according to subparagraph (2) hereof has an assessable value greater than its assessable value as land devoted to use as a country club, such land shall also be assessed on the basis of such greater value, provided however, that no taxes shall be due and payable upon such greater assessment except pursuant to the provisions of subparagraph
(7) hereof.
(4) (i) ... In order to qualify under this section, the club may not practice or allow to be practiced any form of discrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons. The determination as to whether or not any club practices discrimination shall be made by the office of the Attorney General after affording a hearing to the club. The provisions of this section with respect to discrimination in sex do not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times.
(7) If, prior to the expiration of the agreement, or any extension thereof, part or all of the property is conveyed to a new owner, or said property ceases to be used as, or fails to qualify as, a country club, as defined herein, then at such time as part or all of the property is conveyed, or at such time as said property ceases to be used as, or fails to qualify as, a country club, whichever is the earlier date, the unpaid taxes, calculated at the tax rates applicable for the particular year or years involved, upon the difference between the assessment or assessments made pursuant to subparagraph (2) and the assessment or assessments made pursuant to subparagraph (3) hereof, for the taxable years included in the following time period shall immediately become due and payable[.]
. The plaintiffs also alleged that Section 19(e)(4)(i) violated Articles 15 and 24 of the Maryland Declaration of Rights. Article 15 provides, in
[A]ll taxes thereafter provided to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or sub-class of land ...; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community.
Article 24 states:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
. The circuit court did not reach the plaintiffs’ claims under Articles 15 and 24, and neither did we. Burning Tree I, 305 Md. at 61, 501 A.2d at 821.
. The Equal Protection Clause of the Fourteenth Amendment has been held to proscribe discrimination by private entities “whose activities so involve the government as to implicate the ‘state action’ doctrine.” Burning Tree I, 305 Md. at 65, 501 A.2d at 822-23. Under the ERA, the state action doctrine has been held in pari materia with the "under the law” provision. Id. at 90 n. 3, 501 A.2d at 836 n. 3. See, e.g., Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n. 2, 121 S.Ct. 924, 930 n. 2, 148 L.Ed.2d 807, 817 n. 2 (2001) (state action equivalent to "under color of state law”); Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534, 546 (1982) (mere fact a business is regulated by the state does not automatically transform such regulation into state action for purposes of the Fourteenth Amendment); Lugar v. Edmondson Oil Co., 457 U.S. 922, 942, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482, 498-99 (1982) (prejudgment attachment of debtor’s property constituted state action); Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477, 484 (1974) ("[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”) (cancellation of service by regulated public utility for nonpayment held not state action); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627, 640 (1972) (granting state liquor license to racially discriminatory private club not state action); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724, 81 S.Ct. 856, 861, 6 L.Ed.2d 45, 51-52 (1961) (operation of racially discriminatory restaurant in premises leased from government agency was state action); Shelley v. Kraemer, 334 U.S. 1, 19, 68 S.Ct. 836, 845, 92 L.Ed. 1161, 1183 (1948) (judicial enforcement of racially restrictive covenant running with the land was state action).
. The complaint challenged only the "primary purpose” clause, not the periodic discrimination clause; therefore, the circuit court limited
. Chief Judge Murphy regarded the open space program as the statutoiy purpose, a contention the plaintiffs, and Judge Eldridge, disputed. Compare Burning Tree I, 305 Md. at 76, 501 A.2d at 828 ("The purpose of the statute [was] to preserve open spaces .... ”), with id. at 100, 501 A.2d at 841 ("It is undisputed that the sole purpose of the provision was to allow Burning Tree to continue discriminating against women and still receive the state subsidy.”). In Judge Eldridge's view, the problem was the conflation in the Chief Judge's opinion of the original statute and the amended version, 1974 Maryland Law, Chapter 870, which contained the disputed anti-discrimination provision. Burning Tree I, 305 Md. at 101-02, 501 A.2d at 842.
. Chief Judge Murphy said that under the facts of Burning Tree I, it was unnecessary to give "detailed consideration to whether state action in providing ‘separate but equal’ facilities for men and women violates the E.R.A.” Although conceivably such a law "might be subject to challenge,” Section 19(e)(4) "does not require ” separate but equal facilities, but simply "recognizes " that single sex clubs may be eligible to participate in the state program. 305 Md. at 79, 501 A.2d at 830 (emphasis added).
. That Judges Eldridge and Rodowsky were prescient in their views on the individualized level of strict scrutiny was confirmed in the recent Supreme Court decision Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S.-,-, 127 S.Ct. 2738, 2753, 168 L.Ed.2d 508, 524-25 (2007), where Chief Justice John G. Roberts, Jr. said:
*367 The entire gist of the analysis in Grutter[ v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003),] was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a "highly individualized, holistic review,” 539 U.S. at 337, 123 S.Ct. [at 2343, 156 L.Ed.2d at 338],
The analogy to the instant case is clear. See also Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 2486, 132 L.Ed.2d 762, 776 (1995) (" ‘At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens “as individuals, not 'as simply components of a racial, religious, sexual or national class.' ” ’ ”). Accord Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2112-13, 132 L.Ed.2d 158, 182 (1995) ("It follows from” the "basic principle that the Fifth and Fourteenth Amendments ... protect persons, not groups ” that "all governmental action based on race—a group classification long recognized as 'in most circumstances irrelevant and therefore prohibited,’—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”) (citation omitted) (emphasis in original).
. The majority attempts to parse the meaning of the ERA from contemporaneous newspaper articles, see op. at 247-50 & n. 17, 932 A.2d at 587-89 & n. 17, although we have questioned the legitimacy of so doing. See In re Jason W., 378 Md. 596, 607-11, 837 A.2d 168, 175-
. The statute stated, in relevant part:
(a) The term “beauty culture ” includes any and all work done for compensation by any person which work is generally and usually performed by so-called hairdressers, cosmetologists, cosmetologists aides, cosmeticians, beauticians or beauty culturists and demonstrators of beauty preparations or equipment, and however denominated in so-called hairdressing and beauty shops ordinarily patronized by women, which work is for the embellishment, cleanliness and beautification of women’s hair, such as arranging, dressing, curling, waving, permanent waving, cleansing, cutting, singeing, arching of eyebrows, dyeing of eyebrows and eyelashes, bleaching, coloring, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, exercising, or similar work upon the scalp, face, arms or hands, by the use of mechanical or electrical apparatus or appliances or cosmetics, preparations, tonics, antiseptics, creams or lotions or by any other means, and of manicuring the nails of either sex, which enumerated practices shall be inclusive of the term beauty culture but not in limitation thereof.
Md.Code (1957, 1973 Supp.), Art. 43, § 529(a).
. Before July 1, 1973, the statute stated:
To shave, trim the beard or cut the hair of any person or to give shampoos, tonics or massages for hire or reward received by the person performing such service, or any other person, shall be construed as practicing the occupation of a barber within the meaning of this subtitle.
Md.Code (1957), Art. 43, § 323. Effective July 1, 1973, the statute was amended as follows:
Within the meaning of this subtitle, the practicing of the occupation of a barber includes, but is not limited to, shaving, trimming the beard, cutting and razor cutting, styling, relaxing, body waving, shampooing, hair coloring, facial massaging, designing, fitting and cutting of hair pieces for hire or reward received by the person performing the service. These activities must be performed by a duly licensed barber or in a duly licensed barbering school except mere sales of wigs or hairpieces or where in the discretion of the Board, special circumstances merit exemption. This section shall not be construed as a limitation or restriction upon the services which licensed cosmetologists are permitted to perform pursuant to the provisions of this article.
Md.Code (1957, 1973 Supp.), Art. 43, § 323.
. Kuhn is not inconsistent with Burning Tree I. Bainum had taxpayer standing in Burning Tree I because Maryland has liberal rules of standing for taxpayer suits. See Burning Tree II, 315 Md. at 293, 554 A.2d at 385 ("The cases in this Court generally stand for the principle that a taxpayer has standing to challenge a statute’s constitutionality upon a showing that the statute, as applied, actually or potentially increases the plaintiff’s tax burden.”). It is also noteworthy that Bainum’s co-plaintiff Renschler was a victim of sex discrimination practiced by Burning Tree Club.
. See Darrin, 540 P.2d 882. The Supreme Court of Washington held that a rule prohibiting girls from participating in high school football violated that State’s ERA, and that the ERA itself was the compelling state interest. Id. at 893.
. Alienation of affections was a common law cause of action that arose when a man induced a married woman to leave her husband, or otherwise interfered with the marital relationship. Unlike criminal conversation, alienation of affections did not require proof of adultery as a separate element. See Kline v. Ansell, 287 Md. 585, 590, 414 A.2d 929, 932 (1980).
. See, e.g., Opinion of the Justices to the House of Representatives, 374 Mass. 836, 371 N.E.2d 426, 427-28 (1977) (applying strict scrutiny to invalidate exclusion of girls from state-sanctioned contact sports); Darrin, 540 P.2d at 893 (same); People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, 101 (1974) (applying strict scrutiny to invalidate statute that permitted 17-year-old boys to be charged as adults, but precluded like treatment of 17-year-old girls).
. Unlike the majority, see op. at 265-67, 932 A.2d at 598-99, the opinions I cite actually were decided on the basis of equal rights amendments in the various states. After quoting the exact same passage from Rand, the majority purports to analyze relevant cases, but fails to mention that the following were not decided under a state ERA: In re Kandu, 315 B.R. 123 (Bankr.W.D.Wash. 2004) (decided under federal law); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (no state ERA); Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999) (same); and Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) (same).
. Mass. Const, pt. I, art. I ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”).
. Unlike Maryland, in Massachusetts the Supreme Judicial Court is required to issue advisory opinions in response to questions presented by either house of the state legislature. See Mass. Const. pt. II, ch. 3, art II ("Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”).
. The Supreme Court developed the so-called intermediate scrutiny test for certain equal protection claims, including those based on sex classifications. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) (classification must serve " 'important governmental objectives’,” and the means employed must be " 'substantially related’ ” to achieving the objectives); Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583, 592 (1973) (Plurality consisting of Justices Brennan, Douglas, White and Marshall argued that "classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”); id. at 691-92, 93 S.Ct. at 1773, 36 L.Ed.2d at 594-95 (concurrence unwilling to adopt strict scrutiny for sex classifications); Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-54, 30 L.Ed.2d 225, 229 (1971) (early Supreme Court case invalidating sex-based classification under rational basis review). But cf. United States v. Virginia, 518 U.S. 515, 532-33, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996) (emphasizing that justification proffered by the State for gender classifications must be "exceedingly persuasive,” perhaps signaling a shift by the Court toward a standard closer to strict scrutiny).
. The relevant provision states:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Wash. Const, art. I, § 12. This provision is also known as the Privileges and Immunities Clause.
. Wash. Const, art. XXXI, § 1. The Washington ERA states:
Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.
. Hanson v. Hutt, 83 Wash.2d 195, 517 P.2d 599 (1973). The ERA was inapplicable because the cause of action arose in 1971, before the December 7, 1972 effective date of the ERA. Id. at 601, 603 n. 3.
. The Hanson court based its holding on the plurality opinion of the Supreme Court in Frontiero, 411 U.S. at 688, 93 S.Ct. at 1771, 36 L.Ed.2d at 592. See supra note 24.
. Ill. Const. art. I, § 18 ("The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.”).
. The statute in force at the time of the crimes stated:
Except as provided in this Section, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.
Ill.Rev.Stat.1971, ch. 37, ¶ 702-7(1). The current gender neutral statute is codified at 705 Ill. Comp. Stat. 405/5-120 (1999).
. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 1923, 85 L.Ed.2d 222, 231 (1985), held that an Alabama constitutional provision requiring the disenfranchisement of those convicted of any "crime of moral turpitude” violated the Equal Protection Clause of the Fourteenth Amendment, because the provision had a racially disparate impact, and because racial discrimination was a "substantial” or “motivating” factor behind the enactment. The Supreme Court found the Alabama constitutional provision invalid despite its facial neutrality. Id. at 227, 105 S.Ct. at 1919-20, 85 L.Ed.2d at 227-28.
. Village of Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252, 270-71, 97 S.Ct. 555, 566, 50 L.Ed.2d 450, 468 (1977), upheld a facially neutral local zoning restriction against an Equal Protection challenge despite its racially disproportionate impact, because there was insufficient evidence of a racially discriminatory motive in the Village’s zoning decision.
. Gomillion v. Lightfoot, 364 U.S. 339, 340-2, 81 S.Ct. 125, 127, 5 L.Ed.2d 110, 113 (1960), held that action by a state legislature redefining the boundaries of a municipality was potentially unconstitutional on Fifteenth Amendment grounds, because the African-American plaintiffs below alleged a racially discriminatory purpose to deprive them of their voting rights. Because the procedural posture was an appeal from dismissal for failure to state a claim upon which relief could be granted, the Court declined to address the substantive issue. Id. at 348, 81 S.Ct. at 130, 5 L.Ed.2d at 117. In a concurring opinion, Justice Whittaker argued that the Court should have analyzed the case under the Fourteenth Amendment Equal Protection Clause. Id. at 349, 81 S.Ct. at 131-32, 5 L.Ed.2d at 118-19 (Whittaker, J., concurring). Subsequent Supreme Court decisions adopted this rationale. See Shaw v. Reno, 509 U.S. 630, 645, 113 S.Ct. 2816, 2825-26, 125 L.Ed.2d 511, 527 (1993).
. The periodic discrimination provision permitted a country club to “exclude certain sexes on specific days or at specific times on the basis of sex.” The relevant statutory section stated:
(a) In General—Except as provided in subsection (b) of this section, if a country club that meets the qualifications of § 8-212 of this subtitle allows or practices discrimination based on race, color, creed, sex, or*382 national origin in granting membership or guest privileges, the country club may not make an agreement under this subtitle.
(b) Exception—If the country club excludes certain sexes on specific days or at specific times on the basis of sex, the country club does not discriminate under subsection (a) of this section.
1986 Md. Laws, Chap. 334, codified as Section 8-214 of the Tax-Property Article, Maryland Code (1986, 1987 Supp.). In the time span between Burning Tree I and Burning Tree II, Article 81 had been recodified as the Tax-Property Article. See supra note 6.
. As the majority points out, Burning Tree II also presented issues under, inter alia, the First Amendment, the Contract Clause (Article I, Section 10), and Article III, Section 33 of the Maryland Constitution. See op. at 256 n. 21, 932 A.2d at 593 n. 21; Burning Tree II, 315 Md. at 261-62, 554 A.2d at 370. These issues are unrelated to the instant case.
. Whether the state interest was merely "legitimate,” "substantial,” or "compelling” was immaterial to the case at hand. Subsequent decisions of this Court leave no doubt that the appropriate state interest must be at least "substantial.” See In re Roberto d.B., 399 Md. 267, 279 n. 13, 923 A.2d 115, 122 n. 13 (2007). I generally agree with the majority opinion’s statement of the standards of review governing equal protection and substantive due process claims, see op. at 271-76, 932 A.2d at 602-05, with the added proviso that under rational basis review, the burden of persuasion lies with those challenging the government action, whereas under both intermediate and strict scrutiny, the burden of persuasion rests with the State.
. Subsequently the Supreme Court would extend Batson to preclude sex-based peremptory challenges. J.E.B. v. Alabama ex reí. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89, 98 (1994).
. This constitutional provision governs, inter alia, residency requirements for members of the General Assembly. It provides as follows:
A person is eligible to serve as a Senator or Delegate, who on the date of his election, (1) is a citizen of the State of Maryland, (2) has resided therein for at least one year next preceding that date, and (3) if the district which he has been chosen to represent has been*388 established for at least six months prior to the date of his election, has resided in that district for six months next preceding that date. If the district which the person has been chosen to represent has been established less than six months prior to the date of his election, then in addition to (1) and (2) above, he shall have resided in the district for as long as it has been established. A person is eligible to serve as a Senator, if he has attained the age of twenty-five years, or as a Delegate, if he has attained the age of twenty-one years, on the date of his election.
Md. Const. art. III, § 9.
. Pursuant to N.M. Stat. § 27-2-12 (1993), the Department was responsible for establishing rules to administer New Mexico’s Public Assistance Act. At the time the suit was filed, the statute stated:
Consistent with the federal act and subject to the appropriation and availability of federal and state funds, the medical assistance division of the human services department may by regulation provide medical assistance, including the services of licensed doctors of oriental medicine, licensed chiropractic physicians and licensed dental hygienists in collaborative practice, to persons eligible for public assistance programs under the federal act.
. An ectopic pregnancy "occur[s] elsewhere than in the cavity of the uterus.” Stedman’s Medical Dictionary 611 (28th ed. 2006).
. N.M. Const. Art. II, § 18. The New Mexico Constitution incorporated its ERA into its guarantees of due process and equal protection. The entire section reads as follows:
No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall be July 1, 1973.
. The relevant statutory provision stated:
The mother or father or both may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either, or both, are dependent for support: PROVIDED, That in the case of an illegitimate child the father cannot maintain or join as a party an action unless paternity has been duly established and the father has regularly contributed to the child’s support.
Wash. Rev.Code § 4.24.010 (1973).
. Under the more lenient federal equal protection analysis, the Supreme Court has upheld a similar Georgia wrongful death statute. Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979). A plurality of the Court applied rational basis review to affirm, because in their view mothers and fathers of illegitimate children are not similarly situated, id. at 353-55, 99 S.Ct. at 1747-48, 60 L.Ed.2d at 276-77; Justice Powell concurred in the judgment, but would have applied intermediate scrutiny. Id. at 359-60, 99 S.Ct. at 1749-50, 60 L.Ed.2d at 279-80 (Powell, J., concurring).
. Colo. Const, art. II, § 29 (“Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.”).
. Wash. Rev.Code §§ 26.04.020-040 (1970) (prohibited marriages); id. at § 26.04.210 (affidavits required for issuance of marriage license).
. The Washington Defense of Marriage Act (“DOMA”) amended two statutes; the amended versions, in relevant part, are as follows:
(1) Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable.
(2) Every marriage entered into in which either the husband or the wife has not attained the age of seventeen years is void except where this section has been waived by a superior court judge of the county in which one of the parties resides on a showing of necessity.
Wash. Rev.Code § 26.04.010 (1998).
*396 (1) Marriages in the following cases are prohibited:
(c) When the parties are persons other than a male and a female.
(3) A marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (l)(a), (l)(c), or (2) of this section.
Wash. Rev.Code § 26.04.020 (1998).
. The argument about the plain meaning of Section 2-201 applies with equal force to the Washington DOMA at issue in Andersen.
. In J.S.K. Enterprises, Inc. v. City of Lacey, 6 Wash.App. 43, 492 P.2d 600 (1971), a city ordinance prohibiting massagists from performing services for clients of the opposite sex was invalidated on federal equal protection and state statutory grounds.
. Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006), the recent New York same-sex marriage case, is inapposite to the instant case because New York lacks an ERA.
. Md.Code (1984, 2006 Repl.Vol.), §§ 5-1001 to—1048 of the Family Law Article.
. Section 5-1038(a)(2)(i) of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.), reads in relevant part:
A declaration of paternity may be modified or set aside:
2. if a blood or genetic test done in accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named as the father in the order.
. In Powers, the Court said "[t]he suggestion that racial classifications may survive when visited upon all persons is no more authoritative
. 1973 Maryland Laws, Chapter 213 amended Section 1 of Article 62, Maryland Code (1957, 1972 Repl.VoL), to read: "Only a marriage between a man and a woman is valid in this State. If any person within this State shall marry within any of the degrees of kindred or affinity expressed in the following table, the marriage shall be void.” See Md.Code (1957, 1979 Repl.VoL), Art. 62, § 1. The "following table” refers to Section 2 of Article 62 (recodified as Section 2-202 of the Family Law Article), the statute that lists the prohibited degrees of consanguinity and affinity. The first sentence of Section 1 of Article 62 is identical to the current statute, Section 2-201 of the Family Law Article, Maryland Code (1984, 2006 Repl.VoL).
. In 1972-73, the total number of Delegates was 142, and the number of Senators was 43. See 1969 Md. Law, Chap. 785, amending Md. Const, art. Ill, § 2.
. 1974 Md. Laws, Chap. 870. See Burning Tree I, 305 Md. at 56, 501 A.2d at 817.
. Representative excerpts from some of these statutes include:
(a) "Sexual orientation” defined.—In this subheading, "sexual orientation” means the identification of an individual as to male or female homosexuality, heterosexuality, or bisexuality.
(b) Prohibited.—It is unlawful for an owner or operator of a place of public accommodation or an agent or employee of the owner or operator, because of the race, creed, sex, age, color, national origin, marital status, sexual orientation, or disability of any person, to refuse, withhold from, or deny to such person any of the accommodations, advantages, facilities and privileges of such place of public accommodation.
Md.Code (1957, 2003 Repl.VoL), Article 49B, § 5. From a related statute prohibiting discrimination in public accommodations:
(a) In general.—It is unlawful for any person, business, corporation, partnership, copartnership or association or any other individual, agent, employee, group or firm which is licensed or regulated by a unit in the Department of Labor, Licensing, and Regulation as set out in § 2-108 of the Business Regulation Article to refuse, withhold from, deny or discriminate against any person the accommodations, advantages, facilities, privileges, sales, or services because of the race, sex, creed, color, national origin, marital status, sexual orientation, or disability of any person.
Id. at § 8. Section 14 uses the phrase, "race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, or disability,” in a declaration of policy governing employment discrimination. Section 16 uses similar language in a related statute enumerating unlawful employment practices. Sections 19 and 22 use similar language in the context of housing discrimination.
. See, e.g., Md.Code (2002, 2006 Supp.), § 3-303 of the Criminal Law Article, entitled "Rape in the first degree,” which states in relevant part:
(a) Prohibited.—A person may not:
(1) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; and
(2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;
(ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;
(iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping;
(iv) commit the crime while aided and abetted by another; or
(v) commit the crime in connection with a burglary in the first, second, or third degree.
Similarly, Section 3-304 of the Criminal Law Article, entitled "Rape in the second degree,” states in relevant part:
(a) Prohibited.—A.person may not engage in vaginal intercourse with another:
(1) by force, or the threat of force, without the consent of the other;
(2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or
(3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim.
Despite the sex neutral term "person” whose behavior is proscribed, the context makes it clear that the only "person" capable of the enumerated crimes is a male. See Brooks v. State, 24 Md.App. 334, 337-38, 330 A.2d 670, 672, cert. denied, 275 Md. 746 (1975).
. Because vaginal intercourse is required, necessarily "[pjenetration, however slight” is "an essential element of the crime of rape.” Craig v. State, 214 Md. 546, 547, 136 A.2d 243, 244 (1957).
. The appellant was convicted of first degree rape under the following statute:
Rape.—(l)(a) Rape is an act of sexual intercourse, accomplished with, by or between a male and a female person or male and female persons, where such female person is not the wife of the principal perpetrator, as distinguished from accessory to such offense, under any of the following circumstances:
(b) By the male person where the female person is unmarried, and where the female person is under, and the male person is over the age of eighteen years; and this is rape in the first degree.
People v. Green, 183 Colo. 25, 514 P.2d 769, 770 (1973); Colo.Rev.Stat. § 40-2-25(l)(a)-(b) (1963). A female could be charged only under subsection (k) of the same statute for the lesser crime of third degree rape:
(k) By the female person of whatever age, not being an accessory as defined in subsection (1)(/), of this section, where the male person is under the age of eighteen years, where such sexual intercourse is had at the solicitation, inducement, importuning or connivance of such female person, or where such female person was at the time of commission of such offense, a free, common, public or clandestine prostitute, and the male person was, prior and up to the time of commission of the offense, of good moral character; and this is rape in the third degree.
Green, 514 P.2d at 770; Colo.Rev.Stat. § 40-2-25(l)(k) (1963).
. "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." Md. Const., Decl. of Rights, art.
. "The Judicial power of this State is vested in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans’ Courts, and a District Court. These Courts shall be Courts of Record, and each shall have a seal to be used in the authentication of all process issuing from it.” Md. Const, art IV, § 1.
. The marriage statutes are silent about fertility and maximum age requirements of the parties. See Md.Code (1957, 2006 Repl.Vol.), § 2-202 of the Family Law Article ("Marriages within certain degrees of relationship void; penalties."); id. at §§ 2-301 to—302 ("Marriages of Certain Minors.”). Even insanity as a bar to capacity appears in the statutes only by implication. Id. at § 7-103 ("Absolute divorce.”).
Dissenting Opinion
Dissenting Opinion by
I join Judge BATTAGLIA’S dissent. As Judge Battaglia carefully and correctly explains,
To justify its rejection of the enhanced standard of review, strict scrutiny, that this Court has applied to the review of gender-based classifications, the majority dismisses, an undisputed but extensive history of pervasive prejudice and discrimination targeted at homosexuals. Conaway v. Deane, 401 Md. 219, 283-88, 291-92, 932 A.2d 571, 609-12, 614-15 (2007). It then concludes, as a result, that (1) homosexuals have enough political power to effect the eventual establishment, by statute, of marriage or civil unions for same-sex couples; and (2) this political power precludes their characterization as a suspect class. Id.
I am not persuaded. The fact is that Maryland has not adopted, and it may safely be said, is not on the verge of adopting, a comprehensive statewide domestic partnership scheme for same-sex couples that approximates the institution of civil marriage, and thereby confers upon such couples the approximate rights and responsibilities of married heterosexual couples. Moreover, the laudable, though piecemeal, civil advances that the majority references and on which it relies, id. at 291-92, 932 A.2d at 614-15, occurred because marriage has remained an exclusive benefit of heterosexuality. See In Tyma v. Montgomery County, 369 Md. 497, 512, 801 A.2d 148, 158 (2002) (upholding local law granting benefits to the domestic partners of its employees by virtue of holding that such law does not implicate Maryland’s marriage laws). Thus, the conditioning of advances that benefit same-sex couples on the limitation that homosexuals shall not acquire the right to marry belies any argument that the right to marry, or its
In any event, a due process analysis requires that we reach a different result than the majority does. The majority determines that same-sex marriage is not deeply rooted in this State or in the United States, and, therefore, does not implicate a fundamental liberty interest. 401 Md. at 296-310, 932 A.2d at 617-26. That determination, however, only recognizes and gives voice and substance to an undisputed prejudice and objection—against and to homosexuality—that is not legally cognizable; it does not address, never mind resolve, the real issue. Chief Judge Kaye made this point, in addition to identifying the real issue, in Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 27 (2006) (Kaye, C.J., dissenting). There, the New York Court of Appeals framed the issue, as the majority in this case has done, as whether “same-sex marriage” is deeply rooted in tradition, and concluded, again as the majority does here, that such marriages are not. Noting that“[f]undamental rights are those ‘which are, objectively, deeply rooted in this Nation’s history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,’ ” id. at 770, 855 N.E.2d at 23, quoting Washington v. Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772, 787-788 (1997), agreeing with the Supreme Court of the United States and Court of Appeals precedent, Chief Judge Kaye concluded that “the right to marry is fundamental,” id., citing, among others, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional statutes that prohibit interracial marriage) and Levin v. Yeshiva Univ., 96 N.Y.2d 484, 730 N.Y.S.2d 15, 754 N.E.2d 1099, 1108 (2001) (G.B.Smith, J., concurring) (“marriage is a fundamental constitutional right”), and that, as a matter of due process, “central to the right to marry is the right to marry the person of one’s choice.” Id. at 770, 855 N.E.2d at 22-23. (citations omitted).
Chief Judge Kaye then opined:
*424 “Fundamental rights once recognized cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting the plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new" right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”
Id. at 770, 855 N.E.2d at 23.
Relying on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the United States Supreme Court warned against such misapprehension, she explained:
“Lawrence overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which had upheld a Georgia statute criminalizing sodomy. In doing so, the Lawrence court criticized Bowers for framing the issue presented too narrowly. Declaring that ‘Bowers was not correct when it was decided, and it is not correct today’ (539 U.S. at 578, 123 S.Ct. 2472), Lawrence explained that Bowers purported to analyze erroneously-whether the Constitution conferred a ‘fundamental right upon homosexuals to engage in sodomy’ (539 U.S. at 566, 123 S.Ct. 2472 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, was the right to engage in private consensual sexual conduct-a right that applied to both homosexuals and heterosexuals alike. In narrowing the claimed liberty interest to embody the very exclusion being challenged, Bowers ‘disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake’ (Lawrence, 539 U.S. at 567, 123 S.Ct. 2472).”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 23. (Kaye, C.J., dissenting). What Chief Judge Kaye next said applies with equal force to the case sub judice:
“The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it {see Planned Parenthood of*425 Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 [1992] [it is ‘ tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.... But such a view would be inconsistent with our law’]).”
Id. at 770, 855 N.E.2d at 23-24.
It is clear to me that the majority misapprehends the nature of the liberty at issue in this case. It is not whether a same-sex marriage, with all the pejorative emotions that evokes, is a fundamental right; the real issue in this case, when properly framed, is whether marriage is a fundamental right. The issue has already been resolved; indeed, we all agree that it has been answered in the affirmative and the right is firmly established. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional statutes that prohibit interracial marriage); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (concluding that state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened the fundamental right to marry); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (determining that states cannot require individuals with child support obligations to obtain court approval in order to marry); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (holding that inmates could not be denied the right to marry).
The right to marry, encompassing as it does the related and critically important element of choice—the freedom to choose whom to marry, to select the “lucky” person—is not inherently party-centric. Neither is it either hetero—or homo—sexual. I agree with Chief Judge Kaye, to construe the right to marry as narrowly as does the majority, i.e., based on sexual orientation, makes inevitable the conclusion that this fundamental right, by virtue of historical prejudice, does not exist for same-sex couples. See Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24. (Kaye, C.J., dissenting) (citations omitted).
As Chief Judge Kaye observed:
*426 “the result in Lawrence was not affected by the fact, acknowledged by the Court, that there had been no long history of tolerance for homosexuality. Rather, in holding that ‘[p]ersons in a homosexual relationship may seek autonomy for the [] purpose [of making intimate and personal choices], just as heterosexual persons do.’ Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the Court noted, ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper only served to oppress.’ As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom” (Lawrence, 539 U.S. at 579, 123 S.Ct. 2472; see also id. at 572, 539 U.S. 558, 123 S.Ct. 2472 [‘(h)istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry....’]; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 466, 105 S.Ct. 3249, 87 L.Ed.2d 313 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] [Vhat once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom’]). Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24. (Kaye, C.J., dissenting) (citing Lawrence, 539 U.S. at 574, 579, 123 S.Ct. at 2472).
To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage and, as in Loving, their goal is to restrict the right of an individual to marry the person of his or her choice. Consequently, the reasoning of Loving requires rejection of the petitioners’ argument. Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24-25, 26, (Kaye,
Finally,
“[i]t is no answer that same-sex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning’ (Halpern v. Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, ¶ 71 [2003]). ‘To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide’ (Goodridge v. Department of Pub. Health, 440 Mass. 309, 348, 798 N.E.2d 941, 972-973 [2003] [Greaney, J., concurring]).”
Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 26 (Kaye, C.J., dissenting).
At the very least, the benefits appurtenant to marriage accrue, whoever and whatever the nature of the parties. Therefore, I agree with, and join, Judge Raker’s dissent to the extent that it endorses and advocates that committed same-sex couples are entitled to the myriad statutory benefits that are associated with and flow from marriage. I do not join that part of her opinion that accepts the majority’s analysis and determination that rational basis review is the appropriate standard to be applied in this case.
As to a determination under rational basis review, again, I am persuaded by Chief Judge Kaye’s Hernández dissent. Thus, if the proper test were “rational basis,” I, like Chief Judge Kaye, believe that the classification at issue in this case does not pass muster: “it does not satisfy even rational basis review, which requires that the classification ‘rationally further a legitimate state interest.’ ” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 30. (Kaye, C.J., dissenting) (citations omitted).
The majority discusses, at length, statistics and other evidence that support the existence of trend toward the “gradual erosion of the ‘traditional’ nuclear family in today’s society,” 401 Md. at 320, 932 A.2d at 633, and also identifies the ways in which Maryland Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201 (hereinafter “Family Law § 2-201”) is both over-and under-inclusive. Id. at 319-22, 932 A.2d at 631-33. Reasoning that, because rational basis review does not require “mathematic exactitude, and may contain imperfections which result in some degree of inequality,” the majority submits that both the aforementioned trend and the inexactness, that is, the over-and under-inclusive nature of Family Law § 2-201, are insufficient to support a determination that Family Law § 2-201 runs afoul of equal protection. Id. at 325, 932 A.2d at 635 (emphasis added). At issue here, however, is not some degree of inequality but total exclusion of same-sex couples “from the entire spectrum of protections that come with civil marriage— purportedly to encourage other people to procreate.” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 31. (Kaye, C.J., dissenting) (emphasis added).
Consequently, it is disingenuous indeed to surmise that the “possibility of procreation” creates a reasonable relationship in this context. 401 Md. at 322, 932 A.2d at 633 (emphasis
. Judge Battaglia also fully analyzes, and explains, why, under Maryland law, Maryland Code (1957, 2006 Repl.Vol.) § 2-201 of the Family Law Article, creates a sex-based classification. Conaway v. Deane, 401 Md. 219, 277-86, 932 A.2d 571, 605-11 (2007). As stated simply in a case presenting much the same issues as this one, Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 27 (2006) (Kaye, C.J., dissenting) (citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)), "[Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is 'so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy....' ”
. Maryland Code (1957, 2006 RepLVol.), Family Law Article, § 2-201.
Reference
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