Conaway v. Deane

932A.2d CONAWAY,et al. Frank DEANE, Gitanjali et al. Term, 44, Sept. 2006.

No. Maryland. Appeals of Court of Sept. (J. Curran, Jr., Zarnoch, Atty. Joseph A.

Robert Asst. Gen. Rowe, Kathryn Atty. M. Asst. Atty. Maryland, Gen. of Sullivan, Gen., Ann and Steven M. Annapolis; Margaret Nolan brief, Gen., Baltimore), for Appellants. all on Attys. Asst. New, Bethesda, brief of Professors of petition and David W. Defendants-Appel- Psychology Psychiatry Support lants, amici curiae. Assoc., Paavola, Matt M. Paavola &

Matt M. Law Office of Pommett, III, of Nathanson & Pom- Francis A. Law Offices Gerel, LLP, mett, P.C., Ashcraft & Mulroney, William F. X. Baltimore, Greenip, Mooney, Alex brief of Senators Janet Jr., McDonough, L. Rich- Dwyer, Don Patrick Delegates Shewell, Joseph C. Botel- Tonya K. Thornton Impallaria, ard er, III, McConkey, Christopher B. and Tony Shank Emmett Jr., Burns, Appellants, C. for amicus Curiae. Columbia, Tiedemann, Bull, Benjamin

Steven L. W. Glen Stovall, Lavy, Christopher Schowengerdt, R. Dale Alliance Fund, Scottsdale, AZ, brief Family Defense of Research Coun- Defendants-Appellants, cil of curiae. support amicus Jones, LLP, Baltimore, Kinkopf, Gallagher

David Evelius & Linton, Northbrook, IL, Benjamin Paul brief the Maryland of Defendants-Appellants, Catholic ami- support Conference ci curiae. Garza, Rockville, Mary

John R. Erik W. E. Stanley, McAlis- ter, Counsel, VA, Liberty brief Association Lynchburg, Liberty Maryland Families and Counsel in support Appel- lants, amici curiae. Sr., Offices,

Timothy Barkley, Barkley Tim Law Mt. Airy, Foundation, Legal brief of the National for amicus appellants, curiae. Baker,

Joshua for Public Marriage Policy, K. Institute VA, Manassas, Jannace, III, Jannace, Charles J. Charles J. III, P.C., al., Salisbury, Q. Wilson, brief Legal of James et Scholars, in Family support Defendants-Appellants, amici curiae. Oliphant, Destro, Collins,

Lincoln A. Anne C. Robert G. Mittendorff, Gebauer, Robert E. A. Marriage Peter The Law Project, DC, Devin, Washington, Advocate, Paul R. Supreme Haven, CT, Ortins, DC, New J. Bradley Washington, petition the Knights brief of of Columbus in of Defen- support dants-Appellants, amicus curiae. Storzer, Greene, P.L.L.C.,

Roman P. Anthony Storzer & R. Picarello, Roger Severino, T. Religious Becket Fund for DC, Liberty, Washington, brief Becket Fund for Reli- gious Liberty support Defendants-Appellants Urging Reversal of the Decision of Circuit Court Baltimore City, amicus curiae. MA, Dartmouth, P. Glea- Duncan, North James

Dwight G. son, Marriage support for in of Jr., Rockville, of Alliance brief amicus curiae. Defendants-Appellants, B. Her- Wenberg, J. Laura McCarthy, P. Kristina Vincent Northeast, Inc., & nandez, Law Justice American Center for Burnie, brief Milford, Glen CT, Taylor, McDonnell New Owen Inc., Justice, Northeast, for & of American Law Center amicus curiae. Defendant-Appellant, support Orem, UT, Foundation, Stewart, Law C. Marriage Monte N. Rockville, Tradi- Smith, and brief of Citizens for petition Paul Foundation, Families, Fami- United Family Leader tional Defendants-Appellants, amici support lies International curiae. Davis, Baltimore, for amici curiae. appellees,

Toni Marie Benjamin Engstrom, F. Nora Freeman C. Delery, Stuart Dorr, LLP, Mizer, Pickering Hale and Wash- Wilmer Cutler Inc.; DC, Families with Equality Maryland, ington, brief Lesbian, Coalition; Bisexual, Pride; Gay, Gay Fathers of Baltimore and Central Transgender Community Center Association; Law Gay & Maryland Lesbian Maryland; Baltimore; County; Gay PFLAG PFLAG Columbia/Howard Defenders; Rights Campaign; & & Human Lesbian Advocates Foundation; National Black Justice Rights Campaign Human Coalition; and National Rights; Center for Lesbian National amici Gay support appellees, and Lesbian Task Force curiae. York, NY, Sommer, New C. Christo- Legal,

Susan Lambda Baltimore, Brown, Brown, LLP, Hel- pher Levy, Goldstein & McGinnis, Hill, Madonick, ene L. Leslie M. Joshua I. Amy B. Porter, LLP, DC, Washington, Arnold brief Ad- Kaplan, & Maryland’s Proper Rational Review dressing Application Center for Mental Standards Submitted the Bazelon Law, Center, Disability Maryland Law Maryland Health Independent Living, the National Council on Na- Adapt, Association, the National Senior Citizens tional Mental Health Center, Way, appellees, Law the American for People for amici curiae. Fletcher-Hill, Gordon, Feinblatt, Rothman,

Lawrence P. Hollander, LLC, Hoffberger & brief of Religious Organiza- Leaders, appellees, tions and amici curiae. Friedman, Leone, LLP,

Dan Robin D. Saul Ewing, Balti- more, Professors, of Maryland brief Law for appellees, amici curiae. Block, LLP, M. Hohengarten,

William Jenner & Nathalie Gilfoyle, Association, F.P. Psychological American Paul M. Smith, Block, LLP, Eric Berger, Washington, DC, Jenner & Association, brief Psychological of American Psy- Association, Association, chological Psychological Baltimore Psychiatric and American Association support Plaintiffs- Appellees, amici curiae. M. Shepard, Beardsley, DC,

Carmen Buc & Washington, Workers, brief of the National Association of Social the Mary- land of Chapter Workers, the National Association of Social Maryland Chapter Pediatrics, of American Academy of Perrin, M.D., Ellen Biblarz, C. Judith Stacey Timothy for appellees, amicus curiae. President, Lynn

Cheryl Hepfer, Acedemy American of Mat- IL, Lawyers, Chicago, rimonial Susan Carol Elgin, Secretary, Academy Towson, American Lawyers, of Matrimonial brief in support appellees, Gitanjali al., Polyak, Deane Lisa et & amici curiae. Hostetler,

Suzanne Sangree, Janet Murnaghan Appellate Fellow, Baltimore, Advocacy Harrison, Rockville, Beth Mellen Organization Historians; brief of of American Bar Association Maryland of Baltimore City; Justice; Latino for Coalition NOW; Maryland Lawyer’s National Guild-Maryland; Public Center; Roberts; Justice & James Colette City Takoma Park; Inc.; Maryland, the Women’s Law Center of Asian Center; American Justice Asian American Legal Defense and Fund; Momentum; Education Freedom to Marry; Legal Na- Foundation; tional Organization of Women Southern Poverty Center; Law Scholars, and 34 Individual Historians & for amici appellees, curiae. Berrien, Norman J. Shaw, A. Jacqueline M.

Theodore and Edu- Bolden, Legal Defense Chachkin, A. NAACP Victor Ehrlich, J. Fund, Inc., Kaplan, A. Andrew Roberta cational Garrison, York, LLP, New Rifkind, & Paul, Weiss, Wharton Rifkind, Weiss, & Garri- Benson, Paul, Wharton NY, A. Craig DC, brief of NAACP son, LLP, Washington, petition Inc., Fund, appellees, and Educational Legal Defense amici curiae. BELL, C.J., RAKER,*WILNER,* before

Argued GREENE, HARRELL, JJ. CATHELL, BATTAGLIA HARRELL, J. Baltimore the Circuit Court for Clerk of Conaway,

Frank (“the throughout Maryland clerks other circuit court City, and Clerks”) couples. marriage licenses certain same-sex denied pursuant those applications The denied Clerks Article, § (1957, Family Law 2-201 Repl.Vol.), Code 2-201”).1 (hereinafter Court for § Law Circuit “Family filed suit City, aggrieved applicants Baltimore where Clerks, summary judgment in favor against granted declaring that the statute discriminates Plaintiffs-Appellees, 46 of the sex, in violation Article facially basis known Maryland, otherwise Rights Declaration (“ERA”).2 Court, in The Circuit its Rights Amendment Equal Appel expressly declined address opinion, memorandum process arguments due protection lees’ substantive equal the “Law of the Land” of provisions that based on were * retired, Cathell, JJ., hearing participated in and now the Wilner and Court; being after while active members of this conference of this case Constitution, IV, 3A, they pursuant Article Section also to the recalled adoption opinion. participated in and of this the decision Article, (1957, Family pro- Repl.Vol.), § Law 1. Md.Code marriage “[o]nly a and a is valid in a between man woman vides that this State.” (“Article 46”) Rights Maryland states 2. 46 of the Declaration of Article abridged or "[ejquality rights the law shall not be denied of under sex.” because of Rights.3 Article of the Declaration of Defendants-Appel timely Special lants noted a to the Court appeal Appeals. of writ of the We issued a certiorari intermediate appellate court before it could the appeal. decide 393 Md. (2006). here, For the reasons stated shall we reverse the of the Circuit Court.

judgment

FACTUAL BACKGROUND The factual much like background, challenges to similar in jurisdictions, state statutes other marriage undisputed. is Maryland may law that no “in provides marry individuals this State without a license issued the clerk for by county the (1957, marriage performed.” which the is Md.Code 2-401(a). Article, Repl.Vol.), Family § Law apply order to license, for parties such a at least one of the marriage appear must before the clerk of circuit court for that and, oath, (1) county under provide the following information: (2) the full name of each party; the residence of party; each (3) (4) age; each if party’s degree of consanguinity, any, (5) the parties; between the marital status each parties; security party. social number of each (1957, Article, RepLVoL), § 2- Family Law Md.Code 402(b). If, while an questioning applicant, “the finds clerk legal that there a why applicants reason should be married, the shall clerk withhold the license unless by ordered (1957, the court to issue the license.” Md.Code Repl. Vol.), Article, 2-405(e). § Family Law are

Eighteen Appellees here nine couples same-sex who, July various times sought marriage June City licenses Baltimore and several in Maryland. counties Respondent The nineteenth is a homosexual male who ex pressed wish to in the future for apply marriage license.4 ("Article 24’’) Rights Article Declaration states ought imprisoned "no man taken or or be of his disseized freehold, outlawed, exiled, or, privileges, any liberties or or or manner, life, destroyed, deprived liberty property, or or his but judgment peers, of his Law the land.” couples applied marriage 4. The nine same-sex who are as licenses Gitanjali Polyak; follows: Deane Lisa Charles Blackburn Glen the Circuit for Baltimore Conaway, Clerk of Court Frank applica clerks denied5 these circuit court City, and the other § which Family provides Law tions to pursuant a is valid this a man and woman marriage a between “[o]nly the benefits and State,” Appellees of various thereby depriving It is marriage.6 institution of accompany the privileges that Dehn; Kelber-Kaye Stacey Kargman-Kaye; Williams Alvin Jodi and Simon; Wojahn Killough; Nigel Ryan Patrick Steven Palmer and and Kebreau; Kolesar; Mozelle and Phelicia Donna David Mikkole and Foskey Barquero; Rabb. John Myers and Takia and Joanne and Maria surviving thirteen-year partner of a same-sex relation- Lestitian is relationship preserve ship new and wishes to who formed a same-sex marriage right apply a license in future. to for license, applied marriage plans Although for he to has not 5. Lestitian and, Appellees, according to the Clerk the Circuit do future so in the County deny application Washington would his under the Court accuracy statutory about the There is scant doubt current scheme. prediction. this counsel, to Through Appellees’ we are directed efforts of status, benefits, provide for conditioned on marital Maryland laws that responsibilities couples, to grant rights to and married which include, couples. They are not but exclusion of same-sex effective taxation, to, regulation, commer- areas of business secured limited matters, transactions, privilege procedural and edu- spousal other cial cation, trusts, law, decision-making spous- family regarding estates care, insurance, employment, care and child labor and child al health responsibilities spousal rearing, pensions, funeral and the attendant partial provided arrangements. list the benefits This but couples prohibit- couples and denied same-sex to married marriage. ed from benefits, (GAO) Accounting Government Office terms of federal rights, responsi- updated compiled a list of federal bilities, granted privileges couples, denied to same- to married but 1,138 According study, statutes couples. there were federal sex L., Paper: providing A.B.A. Sec. of Fam A White An such benefits. Unions, Regarding Marriage, Analysis the Law Same-Sex Civil L.Q. (citing Report Partnerships, n. 98 No. Domestic Fam. (4 2004), January http://www.gao.gOv/new.items/d available 04-353R present 04353r.pdf). Although disposition have no case would eligibility Appellees’ for those federal benefits under the effect Act, Marriage regulatory it illustrates the Federal Defense of current marriage landscape regarding and the marital benefits from same-sex Appellees excluded. which are according Appellees, privileges accompany marriage, are statutory couples Same-sex suf- not limited to demonstrable fer, benefits. harms, stigma intangible proffered, it is various which include the undisputed Appellees were denied licenses marriage by solely they the Clerks couples. because are same-sex Appel qualified lees are otherwise marry: partner each is unrelat ed or marriage,7 blood each partner age over the of 17,8 unmarried,9 each partner is each of the relationships are consensual, and each possess of applicants capacity to marry.

Appellees July filed 2004 a Complaint for Declaratory Injunctive Relief, as naming defendants Frank Conaway; Rosalyn Pugh, Clerk of the Court for George’s Circuit Prince Arnold, County; Evelyn of the Clerk Circuit Court for St. Mary’s Weaver, County; Dennis Clerk of Circuit Court for Washington County; Baker, and Michael Clerk of the Circuit Court for Dorchester County.10 The four count com 2—201:(1) plaint alleges Family § Law unconstitutionally sex, discriminates based on in violation Article of 46 of the (2) Maryland Declaration Rights; unjustifiably discrimi orientation, based on nates sexual violation the equal protection provisions Maryland of Article of the Declaration (3) Rights; disparately inhibits, in violation of equal protection provisions of Article of the Declaration of Rights, the same-sex couples’ fundamental rights marry, privacy, association, autonomy, and intimate because the stat similarly-situated ute opposite-sex allows couples to exercise rights; those unjustifiably burdens the exercise of children, couples attached to dignity their and harm to result- singled-out ing being unequal from treatment on the basis of their preference. sexual (1957, Article, Repl.VoL), Family § Law 2-202. 7. Md.Code (1957, Article, Repl.VoL), 8. Family § Law 2-301. Md.Code (1957, Article, Repl.VoL), Family § Law 2- 9. Md.Code 402(b)(l)(v)-(vi). record, According couples to the four City; reside in Baltimore couples George's County; three reside in Prince one member of anoth- couple Mary's County, er resides St. while the other member resides Rica; in Costa Mr. Lestitian Washington County; resides in and one couple County. resides in Dorchester au- marry, privacy, rights to couples’ fundamental same-sex pro- due association, in violation intimate tonomy, and Maryland Declaration 24 of the Article cess provisions Rights. to the subsequent were filed to intervene

Three motions Duckworth, Clerk of P. Robert filing complaint. of Appellees’ was the first to County, Arundel for Anne Court the Circuit Duckworth Mr. intervene as defendant. motion to file a clerk, a decision that, court circuit county contended uncertainty with would create Plaintiffs-Appellees favor of the duties, subject would job of his discharge regard in the future litigation civil and criminal potential him to Deane, 393 Md. Duckworth v. those duties. discharge of procedural the 530-31, (describing 903 A.2d time). members point Eight to that history litigation the to Assembly attempted likewise Maryland the General defendants, that, of the as members claiming intervene as power the to legislative authority included Legislature, their Duckworth, Maryland. in the State of the regulate marriage invalidat- judicial 887. A decision 903 A.2d at 393 Md. at statute, to would be according legislators, the ing marriage authority in legislative upon their “judicial a encroachment” 8 of Article powers principles separation violation Duckworth, 393 Md. at Rights. Declaration of to intervene was The third motion 903 A.2d at 887-88. Davis, a resident of Toni Marie proper person filed because “the homo- City. Ms. Davis asserted that Baltimore allowing same-sex lifestyle against religion,” [was] [her] sexual would, essence, unconstitutionally her burden marriage Duckworth, right religion. to her practice First Amendment 532-33, were denied at 888. The motions 393 Md. at to appeals the interveners each noted by the Circuit Court and initiative, issued, a Special on our Appeals. the Court of We 2005 before the intermedi- writ certiorari on 17 December Deane, Duckworth appeal. ate court decided appellate (2004). pertinent For reasons not 863 A.2d 997 384 Md. Court, oral now, briefing this after to merits before us Circuit deci- July on 28 2006 the Court’s argument, affirmed deny Duckworth, sion to the requested interventions. 393 Md. A.2d at 895. denied, After the parties motions intervene were filed summary cross-motions for pursuant Maryland judgment, Rule Appellees supported 2-501. The their motion with a series of exhibits and declarations plaintiffs various others.11 The trial judge held a motions hearing August on 30 and, January on 20 issued opinion memorandum in which she held that the couples exclusion of same-sex from marriage classification, constitutes sex-based lacking a con stitutionally justification sufficient in violation of Article 46. granted, therefore,

She Appellees’ motion for summary judgment, cross-motion, denied Appellants’ sum entered mary judgment in favor of the same-sex couples. The Circuit Court, pursuant Maryland stayed Rule enforcement of its ruling pending the resolution of the expected appeal and potential because consequences ruling on circuit court clerks’ offices throughout the State.12 We issued a writ of certiorari upon timely Clerks’ petition. 393 Md. (2006). 903 A.2d 416

STANDARD OF REVIEW Any party may an action file a motion for sum mary judgment, pursuant 2-501(a), to Maryland Rule it if genuine claimed that there exists dispute any no as to material Appellees 11. accompanying filed motion to strike the declarations of Cott, D; Ph.D; and, Ayers, Esquire; Stacey, Nancy Lisa Judith Ph. F. Badgett, M.V. Lee D. purported expert Ph. These declarations be opinions debunking Assembly's underpin- General assumed factual nings Family § granted judge Appellants' for Law 2-201. The trial Ayers. motion as the declaration Ms. 2—632(f) Maryland provides Rule appeal "[w]hen an is taken judgment granting, dissolving, from an order or a denying or an injunction, restore, may suspend, its modify, court in discretion or grant injunction during pendency an appeal upon of the such terms proper as bond or as it security otherwise considers for party.” Although adverse the record is unclear whether this Rule was grant as stay, validity stay relied on the basis for the of the is unchallenged here.

243 as a matter judgment fact, moving entitled party is and the 2-501(a). for the trial questions Rule of law. properly papers pleadings from the court to determine therefore, are judgment, summary for it a motion before and, if of material fact dispute genuine there whether exists is entitled to revealed, whether the movant is dispute no such See, e.g., facts. undisputed as of law on those a matter prevail (1972). 156, 441, 159 437, A.2d Mele, 267 298 v. Md. Brewer summary judgment was grant a trial court’s Whether is de novo of law and reviewed question is a proper 9, Baltimore, 1, 384 Md. 862 A.2d Livesay v. courts. appellate (2004). review, court 33, an resolves appellate In such 38 inferences that non-moving party all reasonable favor of the by the facts as revealed may underlying from the be adduced admissions, Bay City affidavits. Miller v. pleadings, 631, 938, Ass’n, Inc., 620, 944- 903 A.2d 393 Md. Prop. Owners Bankerd, 98, (2006) Md. 492 King 45 v. 303 (quoting (1985) 608, Lynx, Inc. v. Ordnance (citing 614 turn A.2d 502, (1974))); Prod., Inc., 1, 7-8, Mer 509 273 Md. (1975). Lubow, 208, A.2d 664 v. 275 Md. 339 Mtg. chants Co. “ rule, courts, will general as a appellate ‘Maryland court grounds upon which the only [legal] [trial] consider ” v. Bd. judgment.’ Ross State granting summary relied (2005) Elections, 649, 667, A.2d (quoting 876 702 Md. (2003)); Miller, Duke, 10, 816 A.2d Eid v. 373 Md. (“ ‘An court ... appellate 903 A.2d at 945 393 Md. at from the record and deter the same information examines ” of law the trial court.’ (quoting mines the same issues PaineWebber, East, 408, 413, Inc. v. 363 Md. A.2d Anderson, 690, 695, (2001))); 366 Md. Lovelace PaineWebber, (quoting 363 Md. at A.2d 1036). valid, however, premise only This when A.2d at grounds for the two more and distinct separate “there are one, the trial court relies on grant summary judgment, Ross, another, granting summary judgment.” but not Thus, if or more two similar Md. at 876 A.2d at 702-03. grounds summary judgment “inextricably intertwined” alternatively any related exist, Court consider may this if ground, litigant her, raised properly his, or its summary motion for judgment, if we find fault with the ground facially Id.; upon relied the trial court. see also Eid, 373 Md. at 816 A.2d at (holding that the issues preemption of ERISA and the existence of a patient-physician relationship rise to a giving state law medical malpractice cause of action are so “inextricably both intertwined” that grounds may be considered in the grant review summary judgment, though even the trial solely court relied upon preemption ERISA issue in granting summary judg- ment); Ctr., Geisz v. Greater Balt. Med. 313 Md. cf. (1988) (“On n. 664 n. appeal grant from the of summary judgment which is reversible because error the ground court[,] relied the trial upon by the appellate court ordinarily will not the judgment by sustain ruling another ground, court, not ruled upon [by] the trial the alternative if ground is one to which the trial ... court had discretion to deny added). summary judgment”) (emphasis Whether Family § Law 2-201 is violative of Articles 24 or 46 are issues

purely of law and are inextricably so with one intertwined another claim, that we shall consider the Article even though we find error in the Circuit Court’s singular reliance on Article 46.

DISCUSSION I. Claim of Sex-based Discrimination Under Article 46 of of Rights Declaration that,

Appellees Family § assert because Law 2-201 couples excludes same-sex from marriage, the statute draws impermissible an sex, classification on the basis of in violation Article of the ERA. Specifically, Appellees reason that marry man who seeks to marry, “[a] a woman can but a marry woman who seeks to a woman cannot. Similarly, a woman marry who seeks to a man can many, but a man who seeks to marry Thus, man cannot.” Family because Law § 2-201 opposite-sex but, allows couples marry at the same time, necessarily prohibits so, same-sex from couples doing and the determi enjoyment in the a factor statute “makes sex to subject therefore marry,” and is right of to nation one’s scrutiny.13 strict glance, beguiling. is first argument,

Appellees’ that, if viewed Maryland precedents to They point several a that statute proposition the support literally, appear at all 46 if Article sex is analysis under scrutiny strict receives enti individuals are whether certain determining a factor legislative by particular the provided the tled to benefits Crane, 133, v. review. See 351 Md. enactment under Giffin (1998) (“[S]ex be, not, a 148, 1029, 1037 is and can not 716 A.2d legal rights.”) of or the determination enjoyment factor the 900, Rand, 508, v. 513, 374 A.2d 902-03 (citing Rand 280 Md. Equal Amend al., Rights (1977) Brown et and Barbara A. Women, Equal Rights A Constitutional Basis ment: for for Club, Bainum, Inc. v. Burning Tree (1971)); 80 Yale L.J. 871 I) (1985) (Burning Tree 53, 63-64, 817, 822 501 A.2d 305 Md. (“[S]ex legal determining the factor permissible is a sex, Family § the basis of as the 2-201 discriminates on If Law assert, the examine the statute with strictest Appellees this Court would 648, State, 261, 266, (1993) Tyler 623 A.2d 651 scrutiny. v. 330 Md. of that, Maryland (holding Declaration of of Article 46 "because suspect subject are to strict Rights, are sex-based classifications Edmonds, scrutiny”); Md. 357 n. 601 A.2d Murphy v. 325 (1992) suspect (holding classifications based sex are 109 n. that Rights Equal subject scrutiny under the Amend- review strict Club, Inc., 46); Burning Md. v. Tree 295- ment of Article State II"). (1989) (“Burning If it is determined Tree A.2d classification, § Family 2-201 not draw a sex-based that Law does however, analyze constitutionality our cases us to instruct Murphy, See 325 Md. at rational basis review. statute under (1992) statutory (holding that that classifications do 601 A.2d at 108-09 subject quasi-suspect class are to rational basis suspect not affect review, rationally long upheld is related to be so statute and will governmental purpose). legitimate explain Battaglia's goes great lengths "[t]he Judge that dissent recognize Burning Tree II

majority present case fails to that in the Judge clearly adopted scrutiny as ERA cases.” strict the standard in contrary, Battaglia's op. 932 A.2d 670. To the Dissent recognizes scrutiny applied be when ERA Majority strict should scrutiny approach implicated. to be the is standard, But in order strict on the be found that the statute discriminates it must first it does not. basis of sex. We conclude that rights women, or men ... any [such treatment of that] person by the may law not be based upon circumstance other.”); that such sex Boblitz person of one or the Boblitz, 242, 274-75, 296 Md. (holding that, “legislative after passage approval people any Article of the Declaration Rights, deprivation ancient rights upon based sex would contravene the basic law State”). context,14 this considering When those cases in how ever, and because we believe Article was not intended Assembly the General Maryland and the voters who enact ratified, ed and respectively, ERA in 1972 to orientation, reach classifications based on sexual we conclude Family § that Law 2-201 does not draw an impermissible sex-

based distinction. Legislative

A. The Maryland the History Equal Rights of Amendment indicates that the ERA was intended to combat discrimination between men and women as classes.

The Maryland Assembly, General in ratified over whelmingly Equal Amendment,15 a Federal proposed Rights infra, by 14. As will Appellees be described each case relied on support argument legislative of their gave involved classifications women, rights to certain an entire class of men or the to exclusion of opposite the sex. obviously The classifications in those cases are so sex- they negligible demonstrating based that invalidity are of value in the of that, face, Family a § statute equally such Law 2-201 its applies to the members of both sexes. Originally Congress by 15. introduced in 1923 to the National Women’s Rights Party, (1986), Feinberg, Amendment 16 Equal Renee The amendment, proposed equal rights upon Maryland federal which the based, counterpart proposed every was Congressional was session through Ninety-Second since then and the 1971 session. Allison L. Held, Herndon, Sheryl Stager, Equal L. M. Rights Danielle The Amend- Why Legally ment: Properly ERA Remains Viable and Before States, (1997). 3 by J.Women & 116 "Propelled Mary L. & Wm. reform, political support rights wave of for women's the amendment passed Congress by overwhelming majority----” an proposed Id. The passed by amendment in the House a vote of 354 24 to and in the 35,815 (1971); Cong. 84 8. Cong. Senate to Rec. Rec. 9598 (1972). (38 Three-quarters time) required of the States at the were to legislative Chapter session during that same passed Study Imple § of 1 of the Acts to Governor’s Comm’n Application Rights Amendment, Equal of of the mentation Rights (1977). Assem General Equal Amendment enactment, the Declara amended bly, through legislative this (ERA) Equal Rights include an Amendment Rights tion of federal proposed of the closely language tracked In its § of the Acts of 1972. Chapter amendment.16 form, Maryland Declaration final the amendment the law shall not be “Equality rights under Rights read: Id. of sex.” voters abridged or denied because amendment, margin, overwhelmingly ratified this referendum, the amendment be the November 1972 came Article 46 on 5 December 1972. Governor’s Comm’n Rights Implementation Study Amendment, Equal Rights Application (1977). Equal Amendment history, at for the Ma legislative The official least ERA, particularly instructive as to discrete ryland files not retained legislative intent because bill were legislative Assembly’s Standing Commit systematically the General (now known Legislative Reference Department tees Services) Re until 1975. Department Legislative as the determining legisla purpose pre-1975 sources useful therefore limited to selected committee bill files tive action are (which ERA), for the the Council Legislative do not exist (which Assembly General for 1941-1976 do not Reports the ratify part 1979 in for it to become of the the amendment before order Feinberg, supra, only 35 Constitution. at 14. When states ratified U.S. deadline, by supra, Congress at Feinberg, the amendment the adopted extending the deadline for ratification to 30 June resolution al., 117; Sess., Cong., supra, Res. 2d 1982. Held et H.R.J. 95th (1978). The amendment did not receive the three Stat. remaining part required and thus failed to become of the votes Feinberg, supra, at 1. U.S. Constitution. pertinent part: proposed The federal read in "SECTION amendment rights Equality abridged by 1: of under the law shall be denied or by any Proposed of sex.” the United States or State on account Constitution, the Res. 92d Amendment to United States H.R.J. Sess., (1972). Cong., 2d 86 Stat. 1523 ERA), contain reference to the task force reports, and archival newspaper published during period. Dep’t accounts the of Serv., Assembly, Legislative Legislative History Md. Gen. Resources, available http://www.dls.state.md.us/side_pgs/ (20 library_info/library_legislative_history.html February 2007). any We were unable to locate formal docu legislative contemporaneous ments created with pro consideration and mulgation of the ERA that indicate the General Assembly’s passing in overriding purpose the amendment. locate, however, We were able to extrinsic sources created at the time of pendency or about the of the proposed amendment and promulgation its suggest scope intended of Article 46 was to prevent discrimination between men and women as classes.17 past,

17. As we have stated in the provision] ambiguous, [i]f the text [of constitutional is the Court meaning parts should first endeavor to ascertain its from other of the instrument. It not until the means solution the entire of afforded Constitution have been exhausted without success that the Court is justified calling outside considerations to its aid. When that facts however, necessary, permissible inquire prior becomes it is into the law, previous state contemporary history people, and of of law, attending adoption organic the circumstances well as as expediency. object broad considerations is to ascertain the reason which provision dispute induced the to enact the framers purpose sought accomplished thereby.... to be 553, 560-61, McKeldin, (1955) 207 Md. 115 A.2d Reed v. added). (emphasis mindful, however, pitfalls We are relying limitations contemporary newspaper'accounts interpreting legislative intent. 596, 607-11, W., 378 Md. re Jason 175-78 J., (Harrell, that, concurring) (stating on the occasion[] when it is “rare consider, appropriate degree, relatively for a court to to some contem poraneous newspaper ascertaining legislative relevant articles in ..., vintage comparable intent an newspaper enactment of use approached be selectivity,” accounts should with caution cataloging jurisdictions cases from various in which courts have de contemporaneous newspaper clined to consider articles conclusive intent); Hornbeck, legislative evidence 295 Md. at see also J., (Cole, dissenting) (“Newspaper hardly A.2d at 792 articles ... are intent; extrapolating legislative they the most reliable sources for certainly adequate cogent analysis are not substitutes for purpose provision of a as discerned from its historical context and basic goals.”). contemporaneous We newspaper consider the here accounts of Article promulgation the surrounding In the time de- created commission example, Governor Marvin Mandel affects. study post-implementation to the amendment’s signed towas examine purposes stated One of Commission’s that, facially discriminatory, drew Maryland laws while in on the application discriminated their classifications that sex: basis of Discriminatory Sexu- Sexually are Facially While Not

Laws The or Effect: ally Discriminatory Application their body of had as a the considerable precedent Commission are declared that laws which federal and state law which has racially discriminatory facially unoffensive are nevertheless Supreme Court example An application. their they dispro- literacy which outlaws tests because decision Commission, exclude racial minorities. portionately laws, procedures practices sought identify to therefore adverse disproportionately has a application which af- (women) traditionally been sex which has ] on the [ fect victim discrimination. Study Implementation Equal to Comm’n

Governor’s (1979). Report Rights Amendment, Final to the Governor from executive originating to addition documents equal study newly passed the effects agencies created amendment, peri from the accounts rights newspaper various 1972 electoral vote on Article surrounding od time of the amendment. scope proposed shed on the intended light Post Monday, Washington published 23 October On Maryland Voters to De compendium a staff-written entitled which described the various Changes, cide on Constitutional Accord amendments Constitution. proposed article, ing

amendment, sponsored by majority legislators, with immediately approval would be effective referendum would, least, place at the the state Constitution W., only analysis. provide for our In re Jason 378 Md. context 610-11, 837 A.2d at 177-78. agreement with the U.S. in assuring equal Constitution and men women. rights for “women’s

This amendment is often a referred rights” measure, it but also would assure men they that could not be discriminated of against because their sex.

This amendment the pending amendment the U.S. likely eventually Constitution are to have a far-reaching on impact court decisions in the of family areas and domes- dealing tic relations laws with such matters custody, as child alimony paternity cases.

Douglas Watson, Maryland Voters to Decide on Constitution- al Changes, Wash. Post, 23 October at B4 (emphasis added); Voters, see also Issues The Referendum Confront (“The Am., 24 October at 3-A often amendment News measure, referred as a ‘women’s rights’ it but also would assure men they that could be discriminated against sex.”); because of Rascovar, their Feminists find Barry C. new question, ballot Sun, 31 October at C24 Balt. foes of (describing the lack of male opposition to the women’s libera- ERA). tion movement’s pass efforts to While these are but few examples of the newspaper accounts originating around the time ERA was ratified by the Maryland voters, they represent accurately bulk of the articles of the time on subject, and reinforce that primary purpose the ERA was to eliminate discrimination as between men women as a class.

Because the Assembly 1972 General considered tandem amendments, the proposed federal and Maryland we find objectives instructive also the by revealed the legislative histo- ry the federal initiative. Introduced originally by Party, National Women’s the proposed federal amendment every legislative was introduced at during session the mid- Rights 20th century. Renee Feinberg, Equal Amendment (1986). It was not until 1972 that the proposed federal amendment, introduced the 92nd Congress as House Joint (HJR) Resolution No. Representative Martha Grif-W. (Michigan) fiths and propelled significantly by the women’s rights occurring time, movement during passed Congress Held, L. Sheryl L. Allison overwhelming majority. by an Rights Amendment: Equal The Herndon, Stager, Danielle M. Properly Viable Legally ERA Remains Why the Before (1997). States, 113, 116 & L. Mary Wm. & J. Women there was example, Representatives, In the House scope of the federal proposed intended discussion much Committee before the House During hearing amendment. considered Rules, that HJR 208 be requesting on the State the House Whole Committee O’Neill, Jr. Union, Phillip “Tip” Thomas Representative on of (Dem., Massachusetts), then a member the Committee Rules, stated: of wide discrimina- women have victims group,

As a been opportu- denied educational many they In States are tion. not they States are to for men. some equal nities those and a wife has fewer manage property their own allowed rights. property vestiges of a contains the system currently legal

Our which discriminate principles law variety of ancient common the legislation clarify This would unfairly women. against on discrimination that all irrational Congress intent basis of sex be eliminated. 1971) (statement 6 October Congr. (daily Rec. 35289 ed. O’Neill). hearing, Representative During that same Rep. Illinois) B. commented: (Rep., John Anderson Indeed, today being upon we are called to do chival- wrong respect out of fairness and thing—to rous redress once and for all to being upon for women. We are called equal under the law of the land—remove make women citizenship from the of their second-class vestiges last books. 1971) (statement of (daily Congr. Rec. 35290 ed. October Anderson).

Rep. House, During opposing floor debate in the ERA, it proposed to the Wiggins Amendment18 addition provided Wiggins for an additional clause in Amendment impair proposed "[t]his article shall ERA stated (Dem., was Representative stated Herman Badillo New York):

It is clear that is flagrant there discrimination against women in this country—in employment opportunities, in the education, ownership private property, variety in a Federal benefits such as security social and retirement and in numerous other society. areas American This discrim- levels—Federal, State, ination at all exists and local both the sector. public private some

Although past, advances have been made there much be is still done and meaningful and effective be steps must taken insure that women enjoy the same rights which privileges are now generally available to men. Existing constitutional provisions and various court provide decisions have equal rights failed to for women and depend we cannot piecemeal legislative measures goal. achieve this In order any to avoid undue delays possible interpretations, erroneous a comprehensive effort is required I believe a constitutional amendment is the most appropriate and effective device equal for securing rights citizens, regardless for all of sex. 1971) (statement

117 Congr. (daily Rec. 3580 ed. 12 October Badillo). Rep. Many comments of similar substance appear House, throughout in the discussion of regardless whether a particular Representative was in speaking in favor of or opposition Wiggins Amendment.

The Senate debate concerning proposed equal rights amendment contains sentiments consistent with that of discussing House. When on 22 issue for March Illinois) example, Percy Senator Charles H. (Rep., stated: Even among [proposed opponents, amendment’s] there to be question seems little but that tradition law and have worked together women to an inferior relegate society. status our many cases this has been inten- validity any exempts law person compulsory of the a U.S. which from military any any law service other of the U.S. or of state which reasonably safety promotes people.” the health and women, physio- that precept archaic tional, on an based reasons, concept This has are inferior. logical or functional prohibit [among that of laws the implementation lead to businesses, in certain engaging from things] other women finances, entering into and properties their managing own incapa- are jobs they which deemed contracts, holding legal public private and competing actively performing, ble of education, serving and quality for a educational institutions on jury. a 1972) (statements (daily Rec. ed. March Congr. his statements Percy concluded Percy).

Sen. Senator articulating that Anthony and quoting Susan B. rights amendment lessen or the equal does

[n]either wives, mothers, and women as importance demean imply does not sameness. mainstays Equality of the home. society of our at the heart family structure is While notion, that we must disrupt legislation nothing this does different, are are aware today they that women of recognize responsibilities as citizens willing accept their accept respon- free to those ought to be society modern if free to remain the home that they sibilities much as are is their choice. truly acknowledge equality that can no

Today we will sex, women, they upon be conditioned longer legally of law society, in our deserve as matter assume new roles law. equal treatment under the

Id. at 9596. amendment

Speaking directly point proposed on the sex, members of the same marriage effects on between its Bayh (Dem., II Birch Evans it was contended Senator Indiana) during the Senate debate that prohibit would not a State rights amendment equal

[t]he pro- be marriage from the institution would saying prohibit would not a State from to men It partners. hibited marriage would be to prohibited the institution saying it if says legislature All is that a State partners. women wrong marry a man to a judgment a that it is for makes man, then must say wrong marry it it is for a woman to a woman-or if a State a says wrong marry it for woman to a woman, it say then must that it is for a man wrong marry to man. a 1972) (statements Congr. Ree. 9881 (daily ed. March Bayh).

Sen. B. Maryland precedent interpreting generally Article 46

indicates that the ERA was intended to combat dis- men and crimination between women as classes. This had Court has the on several to opportunity occasions the underpinnings examine historical of the ERA. the Since ratification, passage, promulgation of Article 46 in our of the ERA applications primary indicate that its purpose to remedy long history was the in subordination of women country, place this and to men and on equal women as ground to basic pertains enjoyment legal rights under the law. virtually every In case where this had Court the occasion to challenged consider Article classification drew clear I, Tree between men and as In Burning lines women classes. example, primary question before the Court was whether State real property deferred tax assessments to given that, country club private according bylaws, club’s prohibited women from expressly membership was violative of Article 46. 305 Md. at 501 A.2d at 819-20.19 In route that such concluding Mary- favorable treatment violated the I, Burning preferential Tree tax assessment was conditioned upon compliance the club’s with an anti-discrimination clause benefits, read, statutory granting pertinent scheme the tax which part, as follows: section, qualify practice In order to under this club shall not or practiced any granting allow to be form of discrimination member- race, color, creed, sex, ship guest upon privileges or based or origin any person persons. national The determination as to any practices whether or not club discrimination shall be made Attorney affording hearing the Office of the after General to the provisions respect club. The this section with discrimination apply any shall operated sex club whose are with the facilities General, primary purpose, Attorney determined to serve or

255 briefly history the we discussed Rights, of land Declaration ERA: of the purpose and constitutions were state amendments equal rights

[t]hat equal rights of for history of denial long prompted commentators have recognized. As the is well women society in our indicated, of women status subordinate entrenched our years firmly too been many has for all from being by law women excluded legal system, with responsibilities. or rights, obligations various I, 63-64, Tree Burning (citing A.2d at 822 Md. at Equal Rights Amendment: al., A. et Barbara Brown Women, Rights Equal Constitutional Basis for Yale for (1971)).20 flatly that “the [ERA] We L.J. 871 concluded sex, particular nor the clubs which exclude members benefit certain sexes days times. only and at certain on certain I, 57-58, added). (emphasis Burning at 501 A.2d at 819 Tree 305 Md. opinion plurality this that the statute violated the Central to the Court Rights, ‘‘primary purpose” qualifica- Maryland was the Declaration provision emphasized above. in italics tion to the anti-discrimination Attorney "primary purpose” provision, General found Based on this club, of sex because the that did not discriminate on basis the club statute, purpose” pursuant operated “primary of benefit- for the I, sex, Burning at A.2d ting namely Tree 305 Md. one men. 820. Brown, Thomas Respected as Barbara A. I. commentators such Freedman, Emerson, Falk, discussed the intended Gail and Ann E. have scope Equal Rights In their oft-cited law review of the Amendment. article, rights generally equal for the need an the authors examined amendment: discrimination, only all sex sex An amendment that deals with discrimination, corresponds roughly to of a the boundaries distinct legal relationships.... [A] woman’s status interrelated set of area, prac- employment, the law in one such as relates both before areas, theoretically to such as tically and her status in other edu- Coming responsibility family support. grips with cation or dynamics against requires recog- we women discrimination of, for, problems presented and the nize the indications excuses understanding dynamics of these women’s status. An inferior any enlightens understanding of sex bias one field informs and because, past, legal law. This is in the social elsewhere inchoate, systems permeated have with a sometime but neverthe- been theory inferiority. pervasive, women’s less classifications, prohibits gender-based either legislative under enactments, governmental policies, by application of com rules, benefits, burdens, law mon in the allocation of rights responsibilities as between men and women.” Burning I, added).21 Tree A.2d (emphasis Md. at 823 ERA, underlying Consistent with this of the purpose we Rand, held Rand v. 280 Md. “ (1977), ‘broad, that the sweeping, mandatory language’ evidence cogent [ERA] are people for fully equal rights committed men and The women. to, did, of the in state adoption this was intended [ERA] drastically alter validity traditional views of the of sex-based Gould, 859, v. (quoting classification.” Darrin 85 Wash.2d 540 882, (1975)); Crane, 133, P.2d 889 see also v. 351 Md. Giffin 1029, (1998). 151, Rand, 716 A.2d In we considered the validity of a judgment of the Court of Special Appeals allocat- based, ing support obligations child part, for the most on the parents. sex of the the law Despite common rule at the time a father primarily responsible that was support for of children Rand, during 510-11, born marriage, the 280 Md. at 374 A.2d (internal omitted), at that, citations we concluded in light al., Equal Rights et Barbara A. Brown Amendment: Constitutional Women, 871, Equal Rights (1971) Basis L.J. Yale for for added). (emphasis The authors stated further that mandate, without a constitutional women’s status will never be special accorded the concern which race now of receives because the history impor- of the Fourteenth is Amendment. For these reasons it tant to have a specific constitutional amendment directed to this area equality, special body out which a new law can created. be of of of added). (emphasis Id. II, Burning country 21. Tree two of members the club attacked as statute, I, response Burning unconstitutional a enacted in Tree preferential excluded from tax treatment those clubs that discriminated race, color, creed, sex, origin. basis on the of or national 315 Md. at plaintiffs argued 554 A.2d at 370. The in that case that the statute unconstitutionally burdened the club's First Amendment freedom of (the § association and a constituted violation of Art. Contract Clause) III, § of the U.S. Constitution Article 33 of the II, Burning Constitution. Tree 315 Md. at 554 A.2d at 370. summarily holdings Burning This Court affirmed of Tree that the I discriminatory practices country of the club violated Article 46. Burn- II, ing Tree 315 Md. at at 554 A.2d in determi- permissible was factor Article sex of as between the mother obligations support nation child father: it cannot be vestige past; rule

The common law is a sexes. equality with out commitment reconciled be a support of child cannot parent matters Sex support Child allocating responsibility. this factor made a sexless basis. awards must be on Boblitz, 905; Rand, at Boblitz 374 A.2d Md. cf. 245, 273, 506, 507, (abrogat 296 Md. immunity22 inter-spousal doctrine of as the common law ing women”). We “derogation married “vestige past” that, of Article promulgation thus determined after the women, longer men no as a class were between men and Rather, the mother and of child both primary support. source for the mone fundamentally responsible equally were father during marriage. their children born tary support of not, “sex proposition Appellees turn to Giffin be, enjoyment or the determination and cannot a factor 716 A.2d at 1036. As with legal rights.” 351 Md. conclude, by Appellees, upon relied we the other cases reflection, argument as support does not their that Giffin the issue was whether the Court Giffin, mounted. In primary inter-spousal immunity barred a wife 22. The common law doctrine of action, concurrence, her in bringing from a cause of without husband’s person as a result of either order to recover for losses sustained Boblitz, 242, 244, 506, property 296 462 injury. Md. A.2d Boblitz Boblitz, (1983). injured was as a 507 In Ms. Lauretta Baseman-Boblitz Boblitz, negligent operation of of an automobile. result her husband's therefore, case, 243, In that were 296 Md. 462 A.2d at 507. we at upon the common law doctrine remained called to determine whether viable, 46, light of Article as an affirmative defense an action arising personal injury as the of in tort when the wife’s occurred result Boblitz, negligence husband. 296 Md. at 462 A.2d at 507. of her out, Appellees “any deprivation rights point we held there that of As upon the basic this Our based sex would contravene law of State.” doctrine, however, abrogate was decision the law based on common doctrine, premise entirely an the the that such archaic founded on Boblitz, women,” "derogation married 296 Md. at 462 A.2d at of therefore, find, society. Appel- place had We no modern that parsed language misplaced. lees’ on from reliance Boblitz was Special Appeals concluding of correct in that of the sex parent, each to the during relative sex of their children born marriage, permissible the was a factor be considered in the custody of at grant child the dissolution of the In marriage. case, entered, that Giffin L. upon James M. and Donna Crane divorce, agreement their an Mr. Giffin was whereby awarded the physical custody couple’s daughters. two Giffin, at A.2d at agreement Md. 1030-31. The provided by annual reviews a mental profes disinterested health sional, at the request parent, the non-custodial of the the residential status of children. 351 Md. Giffin, at requested A.2d at 1031. Ms. Crane in 1995 an annual review and, residential an following status children unfavorable recommendation health professional, filed in the County Circuit Court for a Montgomery petition for custody. Giffin, modification of Md. 716 A.2d granted that, 1032. The trial court the petition, holding even though both were parents qualified otherwise to care for the children, particular for a daughters’ need female influence “necessary was factor” court’s determination that Giffin, mother should be granted custody. 351 Md. at 13- words, at 1032-33. other the determination custody entirely was based on sex. reasoning context, Viewing the it its is clear Giffin not, be, Court’s statement “sex is and cannot a factor” related- to distinctions drawn men between and women as (“[T]he Giffin, classes. See Md. at 716 A.2d at 1037 equality between sexes demanded [ERA] law,’ focuses on ‘rights’ of individuals ‘under the which encom- immunities, all pass privileges, forms of benefits responsi- citizens.”) I, (citing bilities Burning Tree Md. at 825) added). words, A.2d at (emphasis In other the grant of child custody longer no could be on pre-conceived based notions, sex, solely parents’ based concerning care parent capable certain was of providing.

Virtually every Maryland case applying Article 46 has dealt with situations where the by distinction drawn a particular or governmental enaction action for singled-out disparate See, e.g., discrete classes. men and women as treatment (1984) (invalidat 565, State, 299 Md. 474 A.2d 1297 Turner v. tavern, hall, or any it unlawful for concert a law that made ing sitters,23 employ female variety entertainment place other same of males hired for the which made no mention but Co., 516, 289 Md. George’s v. Prince Condore purpose); (1981) aspect that the of the common (determining A.2d 1011 for the obligating provide a husband to law of necessaries necessities, parties, of the income regardless wife’s based an class of citizens unconstitutionally burdened entire (1980) Ansell, sex); 414 A.2d 929 v. 287 Md. Kline con the cause of action of criminal unconstitutional (holding man); that, law, to a only common was available versation (1980) Kerr, (upholding 412 A.2d 1001 287 Md. Kerr v. imprison for providing Constitution provision applied equally because it support failure to child pay ment for women); 50 Md. Hofmann, to men and accord Hofmann an ex-husband’s (rejecting App. 437 A.2d alimony to his ex-wife payments that the award of argument that, unlike the payment 46 on the basis violated Article alimony is sex- necessaries, governing the award of the statute an marriage to a is entitled to party neutral such that either alimony appropriate if under circumstances award case).25 the particular employed by place of entertainment for "Sitters” were individuals

23. by circulating amongst patrons in purpose generating sales State, purchase items. Turner v. them to drinks other order solicit Turner, (1984). 299 Md. 474 A.2d 1298-99 required employed example, proprietor of a tavern female dancers "produce by patrons sales.” to interact with in order the tavern Turner, 569, 474 A.2d at 1299. 299 Md. at Conversation,” law, adultery at common was the act of "Criminal 24. 586-87, Ansell, committed a married woman. Kline v. 287 Md. (1980). conversation was actionable Criminal against party engaged who inter- husband the third male sexual (8th with the married woman. course Dictionary Black’s Law Kline, ed.2004). Only sue or be sued under the doctrine. a man could 287 at 414 A.2d at 929. peers precedent, judicial in Vermont of this line of as our The trend confronted, similarly with the semi- have indicated when consistent precedents 46,

Based on our Article interpreting Legislature’s we conclude that the ultimate electorate’s goal putting place Maryland the ERA was to men put equal ground, subject scrutiny and women on and to to closer any governmental singled disparate action which out for treat ment men or women as discrete classes. As we stated I, Tree Burning construing equal rights cases amendments share a

[t]he thread; they generally common invalidate governmental other, action which a burden one imposes on sex but not the a grants benefit to one but not the other.... I, 70, 825; Tree 305 Md. at 501 A.2d Burning at see also (“That I, 65-66, Tree 305 Md. at at Burning A.2d 823-24 essentially scope is limited in its treat unequal [ERA] imposed by ment the law as between the sexes is clear from cases.”).26 our scrutiny Unless statute under grants, Supreme equal protection addressing nal U.S. Court cases classifications Vermont, 194, 864, based sex. v. See Baker 170 Vt. 881 n. 13 (1999). decisions, Supreme In each of these landmark the U.S. Court struck down as unconstitutional statutes that differentiated between men purposes unequal and women as discrete classes for the treatment See, 515, e.g., Virginia, between the sexes. Id. United States v. U.S. 555-56, 2264, (1996) (invalidating Virginia 116 S.Ct. 135 L.Ed.2d 735 excluding program statute women from a offered "citizen-soldier” Institute); Virginia Military Hogan, Miss. Univ. Women v. 458 U.S. 718, 3331, (1982) (holding 102 S.Ct. 73 L.Ed.2d 1090 unconstitutional a Mississippi University policy denying for Women admission the admission nursing program solely of an adult male to the education because of his sex); Boren, 190, 451, Craig v. 429 U.S. 97 S.Ct. 50 L.Ed.2d 397 (striking purchase down an Oklahoma statute that allowed females to 18, age prohibiting purchasing beer at the 3.2% while males from 21); they Weinberger Wiesenfeld, same until reached 419 U.S. (1974) (declaring S.Ct. L.Ed.2d 45 unconstitutional a federal mothers, widowers, providing statute that widows and divorced but not benefits); Richardson, may security collect social Frontiero v. 411 U.S. (1973) (nullifying 93 S.Ct. 36 L.Ed.2d 583 federal statute that spouses depen made it more difficult for the of service-women to claim benefits); purposes quarters' dent status for allowance and medical Reed, (1971) (rendering Reed v. 404 U.S. 92 S.Ct. 30 L.Ed.2d 225 that, provided unconstitutional an Idaho statute that as between two or estate, persons equally qualified more to be the administrator of an males females). preferred are points plurality Burning The dissent out that a of this Court in Tree I rejected "equal application” theory attempts to label that Judge theory espoused majority as one anew the here. discredited Battaglia’s Dissent, op. A.2d at 654-61. Aside from the language quoted text to this footnote was in the main fact that merely synthesize holdings provided of the multitude opinion, "separate equal” previously majority but cited in the cases rejected by plurali- Judge Murphy approach, introduced Chief I, Burning ty Tree 305 Md. at 501 A.2d at of that Court in analysis present "equal application” theory grounding our in the case. pur constitutionality "primary Burning I of a Tree concerned provision upon which the pose” qualification to an anti-discrimination private country receipt preferential property tax assessments qualification provided provisions of “[t]he clubs was based. of, [prohibiting among section discrimination on the basis other the characteristics,] any apply club whose facilities are sex shall not to primary operated purpose ... to serve or benefit members of with the sex, days particular to clubs which exclude certain sexes on certain nor I, 57-58, Burning Md. at A.2d at and at certain times.” Tree 305 club, words, Club, country Burning an all-male 819. In other Tree sex, solely yet against based on their still could discriminate women preferential "primary purpose” enjoy pursuant to the treatment long Burning exemption, so of women was total. Tree as the exclusion I, 58-59, 501 A.2d at 819-20. The circuit court held that 305 Md. primary purpose provision, although gender by language, neutral its discriminatory was in its effect. I, others, Burning Judge Murphy, writing for In Tree Chief two 79, approach, espoused "separate equal” a so-called but 305 Md. that, terms, provided essentially "[u]nder A.2d at which its provision operates primary purpose is because it without sex-neutral I, regard gender.” Burning to Tree 305 Md. at 501 A.2d at 826. According Judge, to Chief statute no more than afford the [did] “the clubs, eligible private country comprised tax benefit to all men, whether of all women, membership, all or of mixed in return for the club’s agreement preserve open spaces public to its in the interest.” Id. nothing prohibit there Because was in the statute all-women clubs forming excluding membership, from all men from while still enjoying protections, Judge Murphy the statute’s Chief and his two colleagues implicate Burning that the statute the ERA. felt did not Tree I, ("The Burning 305 Md. at 501 A.2d at 830 mere fact that Tree is only presently qualifying primary purpose provision club under the change does not of itself a sex-neutral statute into a state nefarious sponsored against invidiously solely scheme to discriminate women say, [the statute] account their sex. Needless to did not cause there clubs.”). country Judge Murphy opined to be no all-female Chief also acquiescence country that the State’s in the club’s discrimination did I, 76-77, Burning not amount to state action. Tree 305 Md. at 828-29, however, Recognizing, "separate A.2d at that his but Court, equal” approach going majority was not to command a 830-31, Judge Murphy opined 305 Md. at 501 A.2d at Chief that the primary purpose provision was not severable from the remainder of the I, 81-84, provision. Burning anti-discrimination Tree 305 Md. at A.2d at 831-32. Although Judge Rodowsky agreed Judge Murphy with Chief that the itself, not, participation open space program by club’s in the did I, action, Burning to state Tree 305 Md. at 501 A.2d at 833 amount (Rodowsky, J., concurring), opined primary provi- purpose he that the facially Burning sion itself was state action and violative of the ERA. I, J., (Rodowsky, concurring). Tree 305 Md. at 501 A.2d at 833 because, view, separately opinion "the not ha[d] He wrote identified, his lead to, responded directly plaintiffs’] argument that 'the [the primary purpose provision by single[d] special excep- its terms out for uniformly applicable tion from an otherwise anti-discrimination meas- private type-sex-and degree- ure of a certain to a certain discrimination private receiving exemp- total-which neither the State nor a club a tax ” I, practice.’ Burning tion could otherwise Tree 305 Md. at J., (Rodowsky, concurring). stating A.2d at 833 his view that the ERA, primary purpose provision clearly would violate on its face the that, Judge Rodowsky explained application, provision "in will sex, always applied particular given, be to a the one excluded participating previously club. In all of the cases decided this Court in which a rule of common law or a statute was invalidated under specified E.R.A. the rule or statute itself isolated one sex and either I, Burning males or females for different burdens or benefits.” Tree 305 J., Thus, (Rodowsky, concurring). Md. at 501 A.2d at 834 "in the discrimination, only object context of sex one sex will be the rejecting "separate equal” approach Id. In discrimination.” but presented by Judge, Judge Rodowsky the Chief concluded that "[i]t say open an ... at the answer elevated level of the statewide sex, space program, program respect ... is neutral with in the country eligible sense that an all female or an all male club is participate. prohibition against ap- The ostensible sex discrimination plies country participating open space individual each club in the program.” Judge Rodowsky agreed primary purpose Id. provision provision. was not severable from the anti-discrimination I, J., Burning (Rodowsky, Tree Md. at A.2d at 835 concur- ring). Judge Eldridge, writing judges, disagreed for himself and two other that, completely Judge Murphy, opining "[i]f with Chief the views set "majority’s”] opinion by adopted [the forth in were in the be future to Court, majority of this the effectiveness of the to the [E.R.A.] I, substantially impaired.” Burning Constitution would be Tree J., (Eldridge, part, dissenting concurring Md. at 501 A.2d at 835 in part). Judge Eldridge specifically in took issue with what he deemed to majority’s "separate equal” approach "primary be the but that the " purpose” provision apportion '[did] not or distribute benefits or unequally among statutory burdens the sexes’ and ma[d]e[ ] 'benefit single country agreeing participate available to all sex clubs in the ” I, 90-91, open space program.' Burning State's Tree 305 Md. at J., (Eldridge, concurring part, dissenting part). Judge A.2d at 836 in in Eldridge additionally Judge Murphy’s opinion criticized Chief that "the express sanctioning single imposte] upon [did not] sex clubs a burden sex, governmental theory long equally the excluded as as the action in by single against persons discrimination sex facilities sanctioned] I, Burning the other sex.” Tree 305 Md. at 501 A.2d at 838 Instead, J., Judge part, dissenting part). (Eldridge, concurring in in broadly "in accor- Eldridge opined construed that the ERA should be that, cataloging language purpose,” several cases with its dance case, present dealt majority opinion in the in we have stated clearly drawn between expressly where the line was with situations imposed and benefits con- of the burdens men and women in terms I, Burning 501 A.2d at 835 upon Tree 305 Md. at ferred them. Kuhn, J., (discussing dissenting part) (Eldridge, concurring part, in in Rand, Condore, Kline, jurisdictions of similar from other and cases Judge Murphy's Judge Eldridge in Chief import). found fault further that, opinion, theory, in his “separate "[wjhile equal” based on the fact but govern- many prior involved of our cases have it is true that conferring entirely directly imposing a benefit action a burden or ment upon females, that the [ERA] either males or we have never held Judge Eldridge narrowly determined final- limited to such situations.” ly primary purpose provision was severable from the anti- that the I, provision, Burning 305 Md. at 501 A.2d at discrimination Tree concurring majority judges that The end result was a four member primary purpose provision violative of the constituted state action judges Judge Murphy, joined two other ERA. Because Chief Judge Rodowsky, provi- opinion primary purpose were of the that the of the anti-discrimination sion was not severable from the remainder provision, provision the entire was invalidated. Judge Eldridge's opinion Despite attempts the dissent’s here to turn not, Judge something interpretation,” to into it is the “narrow which referred, pertained Judge Murphy’s proposed Eldridge to Chief con- requiring language challenged struction of the ERA of the statute to out, terms, single express gender-specific or "fe- in either "males” essence, that, argument, merely Judge Eldridge's males.” in was "primary purpose” provision because the did not refer either to terms, gender-specific "males” or "females” in that did not save the statute when it sanctioned total discrimination of one sex members I, opposite Burning sex. Tree 305 Md. at 501 A.2d at 835 J., ("The (Eldridge, concurring part, dissenting part) principal implicating language classification the E.R.A. arises from the authoriz- clubs, sex, ing totally segregated basis of their on the maintain and, time, discriminatory practices receiving at the same to continue hand, significant sexually integrated country state benefit. On other generally precluded discriminating clubs are sex.”). from on the basis of sum, opinions Judges Eldridge Rodowsky, which Court, ultimately represented plurality opinion “pri- of this that the ERA, I, mary purpose” provision Burning was violative of the Tree 305 effect, ("In Md. at n. 501 A.2d at 836 n. 5 the Court’s entire member, only mandate in one this case reflects the conclusions J., Judge Rodowsky.”) (Eldridge, concurring part, dissenting club, part), was based on the fact that the statute allowed a whether females, comprised of all males or all to exclude all members of the opposite purposes enjoying for the sex while still deferred assessments Judge Murphy’s "separate equal” of real estate taxation. Chief but ERA, approach interpreting rejected by plurality Burning the the in in rights either on its face or to men or women as application,27 class, similarly a to the exclusion of an entire subsection of sex, opposite provisions situated members of the the of the statutory ERA are not and the classification under implicated there subjected scrutiny, review is to rational basis unless heightened scrutiny. some other reason to apply exists § Law it Turning language Family to the that, light clear in of the aforementioned purpose becomes ERA, marriage statute does not discriminate on of sex in violation of Article 46. The limitations on basis by Family § effected Law 2-201 do not marriage separate men and women into discrete classes for the purpose persons expense to one class of benefits at the of the granting statute, in facially application, other class. Nor does the or its Rather, playing men and women on an uneven field. place men and women from the same prohibits equally statute both legislative conduct. A enactment “should be construed ac natural cording ordinary import language to the resorting used without to subtle or forced interpretations operation.” Massage purpose limiting extending its Balt., Parlors, City Inc. v. & Council Mayor 284 Md. State, Burch 52, 55 Md. (quoting (1976)). 426, 429, 365 A.2d 577 To conten accept Appellees’ § Family tion that Law 2-201 discriminates on the basis of extend the reach of the ERA beyond

sex would be to scope by Assembly intended General I, substantially "equal application” theory Tree differs from the relied present majority plurality in the of the Court case. While the Burning Tree I determined that a statute was violative of the ERA allowed, terms, gender-neutral when it albeit in the exclusion of the club, uniform-gender opposite entire sex we deal here with a way singles group persons statute that in no out an entire based on “equal application” theory proposed sex. The here is not inconsistent plurality Burning with the Tree I. I, J., Burning (Eldridge, at 841 Tree Md. at A.2d ("Even concurring part dissenting part) when a statute is not facially discriminatory, expressly recognize or does not draw or classification, facts, suspect inquiry an into the actual to determine the discriminatory purpose impact, appropriate.”) of a existence (citations omitted). the ratified, respectively, who enacted voters State’s of words, concept the “stretch[es] it In other amendment. marriage statute] that [the to assert discrimination gender differently from couples of same-sex to treatment applies Columbia, Dean v. Dist. couples.” opposite-sex of (Steadman, J., (D.C.1995) concurring). n. 2 By Amendments Rights Equal Interpretations Given C. In Similar Situations. Jurisdictions Other case body the growing here is Perhaps persuasive most argument rejecting the jurisdictions flatly foreign law from a man and limit to unions between marriage that that statutes Rand, on the basis of sex. impermissibly woman discriminate (“Cases from other state 374 A.2d at 903 atMd. of their meaning the interpreting breadth jurisdictions ascertaining the are instructive rights amendments equal [ERA].”). Maryland’s reach of Hara, Singer Washington, Appeals

The Court of (1974), one of the first 522 P.2d 1187 was Wash.App. light marriage on same-sex weigh-in courts to appellate There, the court held that ERA. then-newly promulgated the ERA, the that women adoption proposition [p]rior in the law inferior to that of position to be accorded a were context, Thus, purpose in that long history. men had a protection, as between provide legal of the ERA is to women, missing from the state apparently that men and purpose of that light and it is Rights, and federal Bills To the ERA must be construed. language ERA couples’] contention accept [same-sex which refuse to statutes interpreted prohibit must be purpose would be to subvert the marriages same-sex permit scope its by expanding for which the ERA was enacted majori- intended undoubtedly that which was beyond who voted for amendment. ty of the citizens of this state of federal and state Singer, majority 522 P.2d at 1194. The since analogous legal challenges courts called on to consider in a similar rights challenges disposed equal then have See, Kandu, (Bankr. e.g., manner. In re 315 B.R. 123 W.D.Wash.2004) (upholding constitutionality of the federal (DOMA) Marriage Defense of Act and stating, is no “[t]here evidence, otherwise, legislative history from the voluminous purpose against that DOMA’s is to discriminate men or wom Accordingly, marriage en as a class. definition contained ”); classify in DOMA does not according gender.... Her Robles, nandez v. N.Y.3d 821 N.Y.S.2d 855 N.E.2d 1, 6 (“By limiting marriage opposite-sex couples, [the engaging is not sex discrimination. The limitation State] classes, men women in put give does not different and one class a benefit not to the other. and Men are given Women alike-they permitted marry people oppo treated are sex, sex.”); site but not of their own Andersen v. people King (2006) Co., 1, 963, (holding 158 Wash.2d 138 P.3d 987-89 that the state DOMA does not discriminate on the basis of sex and cataloging jurisdictions the various cases from other interpret amendments); Nelson, their ing equal rights own Baker v. 291 185, (1971); Minn. 191 N.W.2d 186-87 but see Brause v. Statistics, CI, Bureau Vital No. 3AN-95-6562 1998 WL (Alaska 1998), *6 27 Super.Ct. February superceded (amended I, 1999); § art. Baehr v. Alaska. Const. Lewin, (plurality Haw. 852 P.2d opinion) that (determining marriage same-sex statute drew a sex-based classification), 2,§ abrogated by 1997 Haw. Sess. Law H.B. 117 (“The Legislature power shall have to reserve mar riage opposite-sex couples.”). Vermont, Vermont, Supreme Court of Baker v. (1999),

Vt. 744 A.2d 864 despite holding unconstitutional couples the exclusion of same-sex from the various benefits that protections accompany marriage, rejected argu- the limiting marriages ment that a statute to those between a man and woman constitutes sex-based discrimination. As the Ver- stated, difficulty mont court here is that the marriage “[t]he neutral; they laws are men facially single do not out or women treatment, disparate as a class for but rather men prohibit women from equally marrying person of the same sex.” Baker, 744 A.2d at 881 n. 13. Because there is no “discrete treatment,” to the according subject class to differential did marriage same-sex analysis, prohibition on court’s a sex-based classification. draw by Appel- Presented Rights Argument Individuality

D. lees stating theory” by “equal application counter

Appellees Family Law in this is not whether proper inquiry case class for as a discrete singles § 2-201 out one sex the other Rather, rights constitutional because disparate treatment. this couples posit individual same-sex rights, are affects enactment legislative how Court should examine rely marry. Appellees individually person seeking each Loving Virginia, of this support argument principally (1967), the land 18 L.Ed.2d 1010 388 U.S. S.Ct. equal case in which Supreme protection mark U.S. Court miscegenation statute Virginia held unconstitutional Court “punish[ed] equally the statute both despite fact that in an mar participants interracial Negro white 1822, 1823, U.S. at 87 S.Ct. at riage.” Loving, 388 additionally upon containing reasoning Appellees rely cases other 28. See, 184, Florida, e.g., Loving. McLaughlin that v. 379 U.S. similar to 283, (1964) (rendering 222 a S.Ct. L.Ed.2d unconstitutional 85 13 an Ameri- that criminal the co-habitation between African statute made 711, person); Lippold, 32 Cal.2d 198 P.2d can and v. Caucasian Perez (1948) prohibited (striking down California that interracial 17 statute marriage). Kraemer, Appellees, Shelley 334 Still other cases cited such as v. 1, 836, (1948), clearly distinguishable 68 92 L.Ed. are U.S. S.Ct. 1161 present Shelley, was whether a restrictive from the case. the issue "persons property ownership prohibiting from real covenant color” was violative the Fourteenth Amendment to the U.S. Constitution. 838, 4, though the U.S. at S.Ct. at 92 L.Ed. 1161. Even 334 68 argued applicable covenant was defendants that case that the (because prepared previous members of all races the Court in cases was applicable to Americans to enforce similar restrictive covenants African 21-22, 846, Caucasians), Shelley, U.S. 68 S.Ct. at 92 L.Ed. 334 1161, argument. We no merit in the fail to see how Court found any patently so basis of statute that discriminated on the race sheds light present on the case. 76, 2655, Westcott, upon v. 443 U.S. 99 61 Reliance S.Ct. Califano case, misplaced. Supreme L.Ed.2d 382 is likewise In that 1010; Florida, see McLaughlin also v. L.Ed.2d 379 U.S. 184, 188, 283, 286, (1964). 85 S.Ct. 13 L.Ed.2d The analogy present to the case is inapt.

We must concede at the outset the mere equal application of a statute does not shield automatically discrim inatory statute from constitutional review under either Equal Amendment, Protection Clause of the Fourteenth equal protection provisions embodied in Article of the Maryland Declaration or the ERA. See McLaugh Rights,29 lin, 191, 288, 222; U.S. 85 S.Ct. at 13 L.Ed.2d Loving, 8, 1822, 18 388 U.S. at 87 S.Ct. at By L.Ed.2d 1010. the same token, however, a statute does not become unconstitutional Court provided struck down a federal statute that benefits to families unemployed, whose fathers had become but denied those same benefits 79, jobs. Califano, where the mothers lost their 443 U.S. at 99 S.Ct. at 2657-58, words, put express 61 L.Ed.2d 382. In other the statute an sex qualification 79, receipt Califano, on the of familial benefits. 443 U.S. at 2658, argument S.Ct. at 61 L.Ed.2d 382. support made in that, although of the statute was tion, express it contained an sex classifica- against it did not discriminate women as a class because the entire 2660-61, family impacted. Califano, was 443 U.S. at 99 S.Ct. at Although rejected 61 L.Ed.2d 382. argument, the Court this it did so on the basis that the statute was Orr, part "baggage 268, stereotypes,” of sexual Orr v. U.S. [440 1102, 1113], [(1979)], 99 S.Ct. presumes 59 L.Ed.2d 306 "primary responsibility provide father has the a home and its essentials,” Stanton, 7, 10, 1373, 1376, Stanton v. 421 U.S. 95 S.Ct. " (1975), 43 L.Ed.2d 688 while the mother is the 'center of home and ” Louisiana, family Taylor life.’ v. 419 U.S. 534 n. 95 S.Ct. (1975). 699 n. 42 L.Ed.2d 690 Califano, 443 U.S. at 99 S.Ct. at 61 L.Ed.2d 382. The by Family § distinction drawn present Law 2-201 in the case is not based on stereotyping, this sort of archaic distinguish- and is therefore able from the federal statute at issue in Califano. Appellees additionally cite Burning support ITree Giffin argument.

their For the opinion, reasons stated earlier in this those distinguishable cases also are from the case at bar. See, e.g., 486, 504, Dep’t of Env’t, 395 Md. Neifert (2006) ("Although express equal Article does not contain an clause, protection this concept equal protec Court has held that the Article.”); tion is embodied within the Regents, Frankel v. Bd. 361 298, 312-13, 324, (2000) (internal omitted); Md. 761 A.2d 332 citations 410, 8, 1102, Corp., Governorv. Exxon 279 Md. 438 n. 370 A.2d 1118 n. (1977), 117, aff'd, (1978). 437 U.S. 98 S.Ct. 57 L.Ed.2d 91 to because, manner, makes reference race in it simply some Parlors, Mayor City Council Massage Inc. v. & sex. See Balt., the (upholding constitu- Md. City ordinance tionality, Article of a Baltimore to pursuant providing from treatment parlors prohibited massage that the same persons opposite to the sex simultaneously room, grounds separate on declining procedural but to reach regulation promulgated of a constitutionality to the challenge allegedly prohibited ordinance that heterosex- pursuant to the client). the ual as between massages masseuse/masseur In was the constitutional Loving, the issue before Court marriage scheme be ity Virginia statutory prohibiting of a Caucasians, providing for crim tween non-Caucasians and statute, of the penalties support inal for violations. that, though even reference was made Virginia argued State of it marry, punished race in who was entitled determining marriage. Loving, the interracial equally participants both 1821, 18 1010. The at L.Ed.2d 388 U.S. at S.Ct. neutral Supreme beyond superficial was able to see Court enactment, however, ity legislative and determined only prohibits marriages fact that interracial Virginia “[t]he that the racial persons white demonstrates classifica involving justification, tions stand on their own as measures must Supremacy.” maintain at designed Loving, White U.S. Thus, at 18 L.Ed.2d 1010. Court S.Ct. that, its Loving although applied determined statute on races, underlying purpose face to all was sustain equally to subordinate African-Americans and Supremacy White this reasoning other non-Caucasians as class. behind based, least in fact that part, “[w]hile conclusion was ..., Virginia marrying any from nonwhite prohibits whites Orientals, Negroes, any may intermarry other racial class 11at statutory Loving, without interference.” 388 U.S. n. 1823 n. 18 L.Ed.2d 1010.30 S.Ct. at Supreme McLaughlin Although expressly Court did not hold purpose latent behind the cohabitation statute issue was 270

“The test to evaluate a facially gender- whether neutral statute discriminates on the of sex is basis whether the ” Baker, law ‘can be traced to a discriminatory purpose.’ 744 A.2d at (quoting 880 n. 13 Personnel Adm’r v. Mass. 256, 272, 2282, 2293, 442 Feeney, U.S. 99 S.Ct. 60 L.Ed.2d 870 (1979)). And while clear purpose “[t]he and central of the Fourteenth Amendment was to eliminate all official state States,” sources of racial in the invidious discrimination Lov 11, ing, 1823, 1010, 388 87 18 U.S. at S.Ct. at L.Ed.2d the primary purpose behind Article 46 is to frustrate state action that separates men and women into discrete classes for dispa rate the showing treatment as between sexes. Absent some § that 2-201 Family “designed Law was to subordinate either class,” Hernandez, men to women or women to men as a (“This N.Y.S.2d 855 N.E.2d at 11 is the kind of sham equality Supreme that the in Court confronted the Loving; statute ... there was substance legislation.”), anti-black we also, find analogy Loving inapposite. e.g., See Baker v. Nelson, (1971) (determin 291 Minn. N.W.2d ing statute, that “Virginia’s antimiscegenation in prohibiting terracial was marriages, solely invalidated on the grounds of discrimination.”). patent its racial Because there is no evi dence before us Legislature record that the intended § with 2-201 to Family Law differentiate between men and women as misconception classes on basis of some regard ing our gender society, roles in we conclude that the ERA does not mandate that the State recognize same-sex marriage Kandu, based on the re analogy Loving. See In 315 B.R. (Bankr.W.D.Wash.2004) (“There evidence, is no from otherwise, legislative history voluminous that DOMA’s Supremacy, reasoning exceedingly based on White that case is employed Loving. similar to that held The Court applies person only [b]ecause the Negro section to a white and a who specified couple commit acts and because no other than one Negro up subject made and a upon proof of white is conviction comprising proscribes, of the elements offense it we [the hold protection equal statute] invalid as denial of the of the laws guaranteed by the Fourteenth Amendment. McLaughlin, 379 U.S. 85 S.Ct. at L.Ed.2d class.”); as a men or women against to discriminate purpose is Vermont, at 880 Andersen, 989; Baker v. 138 P.3d record before (concluding the evidence n. marriage that the authors court did not “demonstrate incorrect couples excluded because laws same-sex anxiety roles or gender about discriminatory assumptions Hara, confusion”); Wash.App. gender-role Singer about (1974) (“[There] analogous no 1191-92 522 P.2d appel in instant case because involved the sexual classification relationship entry marriage into the being lants are not denied into sex; rather, being entry denied they are of their because recognized definition because of the marriage relationship the only by into may that be entered as one relationship of that sex.”), review the opposite who are members of persons two (1974).31 denied, 84 Wash.2d Review for Article II. Standards of Constitutional Concepts Substantive Challenges the of based on Equal Protection. Due Process that Law Family to claim Appellees’ addition of Article on of sex in violation § 2-201 the basis discriminates marry challenged Family seeking to couples the same-sex Maryland the Decla § 2-201 as of Article of Law violative challenge Article 24 has three Appellees’ of Rights.32 ration (1) strict subject § Law 2-201 should be to Family facets: it because scrutiny equal protection33 under of principles Raker, Concurring Dissenting Opinion, Judge apparently her 31. analysis Maryland foregoing that the concurs with the conclusion Amendment) (the Rights Equal is not of Article 46 statute violative Rights. Declaration of provides Rights Article 24 of the Declaration imprisoned ought or disseized of his no man be taken or [t]hat exiled, or, freehold, outlawed, any privileges, or liberties or or life, manner, liberty property, but destroyed, deprived or of his or peers, judgment or the Law of the land.” of his equal provi- express protection previously, there is no 33. As delineated however,] "embodies[, Article 24. Article sion found within Equal concept equal protection to the same extent laws orientation, discriminates the basis of sexual a classification (2) claim is Appellees suspect or quasi-suspect; Article 24 mandates that strict scrutiny Family be applied § Law 2-201 because the statute prevents couples same-sex exercising rights from their marry fundamental while allow- time, ing, so; the same opposite-sex couples to do unconstitutionally statute burdens the exercise couples’ process same-sex fundamental rights marry. due

Before proceeding, we to reiterate pause the three levels of constitutional scrutiny employed in our jurisprudence when a legislative challenged enactment is under either process due equal protection concepts or embedded Article Waldron, explained 24. As we top “[t]he tier [constitu review contemplates tional] that when a statute creates criteria, upon clearly distinction based ‘suspect’34 when enactment infringes upon personal rights or interests deemed ‘fundamental,’ to be then the legislative product must with a rigorous, stand ‘strict scrutiny.’” 289 Md. at 941; Hornbeck, A.2d at 781; atMd. A.2d at Protection of Murphy, Clause the Fourteenth Amendment.” at 325 Md. 353-54, (citations omitted); Env’t, at 601 A.2d 107-08 Dep't Neifert v. of 486, 504, 1100, (2006); 395 Md. 910 A.2d 1111 Bd. Frankel v. of 298, 312-13, Regents, 324, (2000) (internal 361 Md. 761 A.2d 332 omitted); Supervisors citations George’s Bd. Elections Prince of of of Goodsell, 279, 7, County 1033, v. 284 Md. 293 n. 396 A.2d n. 7 1040 (1979); Matthews, 383, 395, 903, Mortgage U.S. Co. v. 167 Md. 173 A. (1934), 232, 168, grounds, 909 rev’d on other 293 U.S. 55 S.Ct. L.Ed. 79 (1934) (determining 299 that Article 24 should be construed at least Amendment). Thus, the extent of the though Fourteenth even independent Fourteenth Amendment and Article 24 are of each other capable being interpreted differently, of Supreme U.S. Court cases construing highly persuasive the Fourteenth Amendment are re with gard interpretation 354, to our Murphy, of Article 24. 325 Md. at 601 108; Waldron, 705, (citations A.2d at 289 Md. at 426 A.2d at 941 omitted); 640, County of Educ., 597, Hornbeck v. Somerset Bd. 295 Md. 758, ("[D]ecisions Supreme 458 A.2d 781 of interpreting Court Equal Protection Clause of the persuasive federal are constitution authority....”). by 34. The criteria which we determine a statute a whether draws "suspect infringes right classification” or on a "fundamental” are discussed infra.

273 (1977) 601, 1052, State, 593, 380 A.2d 1057 v. 281 Md. Wheeler legis of a scrutiny strict analysis requires (“Equal protection inter impermissibly when the classification classification lative right operates a fundamental with the exercise of feres class.”). utilizing When disadvantage suspect of a the peculiar review, we of constitutional most-demanding standard this challenged legislative classification a deem unconstitutional a “necessary promote formed it is the distinction unless Hornbeck, 295 Md. at governmental interest.” compelling Goodsell, 286, 781; 396 A.2d 641, 284 Md. at 458 A.2d at 1057); see Wheeler, Md. at 380 A.2d (quoting 281 1037 Center, Living 473 U.S. Cleburne v. Cleburne City also (1985). Shapiro v. 3249, 3254, L.Ed.2d 313 105 87 S.Ct. 1322, 1331, 22 L.Ed.2d 89 S.Ct. Thompson, U.S. (1969). be a words, justified In must other statute interest, sufficiently narrowly state and drawn compelling that end. accomplishing means for it is the least restrictive Rodriguez, Dist. v. Independent San Antonio School See (1973). 16-17, 1278, 1287-88, 36 L.Ed.2d 93 S.Ct. U.S. great subject no classifications strict surprise, To one’s rarely legal glare. Hargrove Bd. scrutiny survive the 406, 428, Sys., Md. Retirement 310 Md. Trustees of constitutionality that the (explaining on the level review depends classification often particular subject it to strict analyzed under which is because statute analysis an scrutiny always struck down under “nearly ”) historically theory and fatal fact’ been] ‘strict [has Waldron, 707-08, (cita 289 Md. at A.2d at (quoting omitted)); Bd. Retirement v. Murgia, tions see also Mass. 2562, 2568-73, 427 U.S. 96 S.Ct. 49 L.Ed.2d (1976) (Marshall, Dissenting). J. contrast, the least exact generally employ we review and most deferential standard constitutional

ing legislative review neither interferes when the action under right a nor a implicates with fundamental sus- significantly35 in-depth particular a 35. For an discussion of whether statute interferes “significantly’' right, Haining, 398 with a fundamental see Koshko v. 274

pect classification. Under this “rational basis” level of scruti ny, pass classification will muster long constitutional so as “rationally it is related to a legitimate governmental interest.” 108;36 Md. Murphy, 325 at 601 A.2d at City Newof Dukes, 297, 303, 2513, 2516-17, Orleans v. 427 96 U.S. S.Ct. (1976) (“Unless L.Ed.2d 511 a classification trammels funda mental or personal rights upon is drawn inherently suspect race, or religion, distinctions such our alienage, decisions presume constitutionality discriminations statutory only require that the classification be challenged rationally interest.”). legitimate words, related to a state In other we uphold will the statute under rational basis review “unless varying treatment of different or groups persons is so unrelat any ed to the legitimate achievement of combination of pur poses only that can [governmen [the court] conclude that the (citations omitted). actions were tal] irrational.” Id. Statutes reviewed pursuant to this level are scrutiny presumed constitutional, “and only will be invalidated if the classification clearly arbitrary.” is Md. Murphy, 325 at A.2d 108; Co. v. Whiting-Turner Contracting Coupard, 304 Md. 340, 352, (1985) 499 A.2d that a statute (holding reviewed under the “enjoys strong “rational basis” test presumption constitutionality, can only be [and] invalidated if the classification any is without is reasonable basis and Waldron, purely arbitrary”); Md. A.2d at (holding will generally statute be upheld unless the classification “wholly irrelevant to the achievement of the 404, 431-38, Md. (holding 186-91 Maryland grandparent visitation statute worked a "direct and substan upon parental rights respect tial interference" with court-ordered Hornbeck, grandparents).

visitation with their children See also (holding heightened 295 Md. at A.2d at that "the review case, applicable test is not in [that] because ... there has no been with, significant infringement upon, deprivation of interference underlying advantage education]”) right [right to take of a (emphasis added). Although years this Court has articulated over the several deriva- standard, titling tions of the "rational application basis” of this the constitutional standard has been same across all derivations.

275 366 U.S. Maryland, v. objective”) McGowan (quoting State’s (1961) and 1101, 1104, 6 393 425, L.Ed.2d 420, 81 S.Ct. 802, 1404, 809, 89 Election, S.Ct. Bd. 394 U.S. McDonald v. of (1969)). [subject to classification 1408, 22 L.Ed.2d 739 “[A] not basis need some reasonable having basis review] rational in result some nicety may made with mathematical be any can conceivable long produce the state so inequality” Whiting-Turner, the distinction. justify “state of facts” Orleans, 185; 427 352, New City at A.2d at 304 Md. 499 (“Matronal 2517, 49 511 303, at L.Ed.2d U.S. at 96 S.Ct. substantially less than mathe- be made with may distinctions Nelson, exactitude.”); 191 N.W.2d at 187 Baker v. matical (“ demanded the Fourteenth is not symmetry’ ‘Abstract Amendment.”). often A to rational review subject statute 428, at 529 Hargrove, muster. 310 Md. passes constitutional subject to rational (explaining legislation A.2d at 1383 scrutiny “minimal always has received basis review almost fact”) Waldron, 289 virtually Md. theory (quoting none (citations omitted)). 707-08, at 426 A.2d at 942 has arisen to leaven the A third level review courts framework which rigid two-tiered constitutional constitutionality government action. See Wal review 708-10, dron, “heightened” A 289 at 426 A.2d at 942-44. Md. scrutiny,” “intermediate otherwise known as scrutiny, level action creates a classification triggered challenged when the subjected higher degree scrutiny been “which ha[s] test, rational basis but than the traditional and deferential suspect involve classes [yet] which not been deemed to ha[s] 357-60, 325 Md. at 601 A.2d rights.” Murphy, or fundamental evolving application at Court’s (explaining Supreme 109-11 with to certain scrutiny” or “rational basis bite” “heightened 428, classifications);37 310 Md. at Hargrove, “intermediate” 109-10, 358-60, explained Murphy, Md. at As 325 Supreme intermediate classifications various Court described these subjecting “heightened ways years, ranging the statute over the from Doe, 102 scrutiny,’’ Plyler U.S. 218 n. S.Ct. see v. Boren, (1982); Craig U.S. 2395 n. 72 L.Ed.2d (1976); University Mississippi 50 L.Ed.2d 397 S.Ct. 529 A.2d at (explaining evolution of the traditional approach two-tiered into the current three-tiered constitution framework); Waldron, al Md. at A.2d 943- 44 (explaining Supreme Court’s treatment of sex-based “an classifications as active review of legislation implicat ing rights previously determined to be ‘fundamental’ or involv ”).38 ing held ‘suspect.’ classifications to be This middle-tier scrutiny may implicated be to review a “quasi-suspect” classifi Cleburne, City cation. 473 U.S. at 105 S.Ct. at 3254-55, 87 L.Ed.2d 313. In order to survive this intermedi scrutiny, ate level of statute question “must serve important governmental objectives and must be substantially related to the achievement objectives.” of those 325 Murphy, 358, Boren, Md. at 601 A.2d 110 v. 429 (quoting U.S. Craig 190, 197, 451, 457, (1976)); 97 S.Ct. 50 L.Ed.2d 397 Thomas v. Labor, Dep’t Licensing, Regulation, 650, & 170 Md.App. 99, 109-10 (2006). 668-69, 908 A.2d 718, 723, 3331, 3335, Hogan, v. Women 458 U.S. 102 S.Ct. 73 L.Ed.2d (1982), See, application e.g., 1090 City of “rational basis bite.” with Center, 432, 3249, Living Cleburne v. Cleburne 473 U.S. 105 S.Ct. 87 of L.Ed.2d 313 (1985); Assessor, 612, Hooper County v. Bernalillo 472 U.S. (1985); Vermont, 105 S.Ct. 14, 86 L.Ed.2d 487 v. 472 Williams U.S. (1985); S.Ct. 86 Metropolitan 105 L.Ed.2d 11 Co. Ins. v. Life Ward, (1985); 470 U.S. 105 S.Ct. 84 L.Ed.2d 751 Zobel v. Williams, (1982). 457 102 U.S. S.Ct. L.Ed.2d See also Stewart, Clause?, Growing Equal (October) D. A Protection 71 A.B.A.J. Rosenblum, (quoting Pettinga, Victor G. Rational Basis Name, by Any Scrutiny With Bite: Intermediate Other L.J. IND. (1987)). Although employing referred to different names differ- review, ently phrased practical levels of constitutional differences appear slight. between the two ERA, Maryland, light applies 38. scrutiny a strict standard to carving statutes Supreme classifications based on sex whereas the applies scrutiny governmental Court intermediate sex-based action. areas, however, There are other Supreme which the Court has applied scrutiny. specific this trigger- intermediate level of Those areas heightened ing scrutiny will be discussed infra. Equal III. under Article Protection Rights 24 of the Declaration on the Basis Sexual Discriminates A. A Statute That Heightened Strict Trigger Does Not Orientation Scrutiny. a distinc Family § Law 2-201 does not draw

While implicitly sex, differentiate legislation does tion based prefer “Those who relation preference. on the basis sexual prefer those who sex and ships people opposite with alike, of the same sex are treated relationships people with relationships may gain the status only opposite-sex since Hernandez, N.Y.S.2d marriage.” benefits associated with Texas, U.S. 770, 855 See Lawrence N.E.2d (2003) (“While it is true that 2472, 156 L.Ed.2d 508 123 S.Ct. consenting law it criminal for two adults [making privacy of their own engage sodomy homosexual conduct, targeted by this only to conduct applies home] closely homosexu being is conduct that is correlated with law circumstances, targeted at more statute] Under such [the al. gay persons than conduct. It is instead directed toward class.”) (O’Connor, 2- J., concurring). § Law Family That is undis a distinction based on sexual orientation 201 draws here, therefore, is what level of controversy The actual puted. to a scrutiny applied should be statute constitutional (i.e., differently that basis whether sexual treats citizens class, or there suspect quasi-suspect orientation constitutes a scrutiny of levels of iterated by triggering heightened one above). Hernandez, 770, 821 N.Y.S.2d 855 N.E.2d at 11. We suspect orientation neither a nor quasi- find that sexual is class, subject § to Family Law 2-201 therefore is suspect review. explain. rational basis We brightline diagnostic, is annunciated There no Court, by or which a Supreme either this Court the U.S. recognized readily. be suspect quasi-suspect may or class however, are, suspect indicia or quasi-suspect There several of Court to Supreme classes that have been used cases a warrants a more legislative determine whether classification analysis than that rational exacting provided constitutional 278 (1) review.

basis These factors include: whether the of group by a statute a people disadvantaged display readily-recogniz able, “obvious, immutable, or distinguishing characteristics ...”39 that define the as a insular group “discrete and minor- (2) it[y];”40 whether the impacted with group “saddled such disabilities, subjected or a history to such of un purposeful treatment, equal relegated position such of political powerlessness extraordinary as to protection command from (3) majoritarian political process;”41 and whether the class people singled out is “subjected unique disabilities on the of stereotyped basis characteristics not truly indicative of their abilities meaningfully society].”42 contribute [to We have Castillo, 638, 2729, 635, 2727, Lyng v. 477 U.S. 106 S.Ct. 91 L.Ed.2d (1986); Frontiero, 686, 1770, 527 411 U.S. at 93 S.Ct. at 36 L.Ed.2d ("[S]ince sex, origin, 583 race like and national is an immutable birth, solely by imposition characteristic determined accident of special upon particular disabilities the members of a sex because of concept system their would 'the sex seem violate basic of our legal relationship responsibility burdens should bear some to individual ....'”) Co., 164, 175, (quoting Surety & Weber v.Aetna Cas. 406 92 U.S. 1400, 1407, (1972)); Halley, S.Ct. 31 L.Ed.2d 768 see also Janet E. Biology: Critique Sexual Orientation and the A Argu Politics 503, 507, Immutability, ment 46 n. 507 11 Stan. from L.Rev. ("[I]mmutability requirement factor.”) (citing is not but a Bowen Gilliard, 587, 602-03, 3008, 3018, 483 U.S. 107 S.Ct. 97 L.Ed.2d 485 (1987)); 638, 2729, 527). Lyng, 477 U.S. at 106 S.Ct. at 91 L.Ed.2d Co., 144, 4, 40. United States v. Carolene 304 Prod. U.S. 152-53 n. 778, 783-84, (1938); S.Ct. 82 L.Ed. 1234 see also Bd. Mass. Retire- 307, 313, 2562, Murgia, 2567, ment v. U.S. S.Ct. 49 L.Ed.2d 520 (1976); 1, 28, Indep. Rodriguez, San Antonio School Dist. v. 411 U.S. (1973); Richardson, S.Ct. 36 L.Ed.2d 16 Graham v. 403 U.S. (1971). S.Ct. 29 L.Ed.2d 534 Retirement, 41. Mass. Bd. 427 U.S. at S.Ct. District, (quoting L.Ed.2d 520 San School Antonio 411 U.S. at 16). S.Ct. at 36 L.Ed.2d Retirement, 313, 2567, 42. Mass. Bd. 427 U.S. at 96 at S.Ct. 49 of 520; Frontiero, 686, 1770, L.Ed.2d 411 at U.S. 93 S.Ct. at 36 L.Ed.2d (determining trigger 583 heightened that sex-based classifications scru- tiny, frequently "the sex characteristic bears no relation to ability perform society”). though or contribute to Even Article 46 classifications, scrutiny apply gender-based mandates that we strict

279 similar, comprehensive, as set although not identified a suspect new allegedly may analyze which we criteria (de Waldron, 706, 426 A.2d at 941-42 289 Md. at classes. who have suspect category people a class as “a scribing or unequal a treatment’ history purposeful ‘experienced stereotyp on the ‘subjected to disabilities basis unique been ”) of their abilities.’ truly ical characteristics not indicative 313, Retirement, 96 427 U.S. at S.Ct. at Mass. Bd. (quoting 520). 2566, 24 is Article construed at 49 L.Ed.2d Because Amendment, extent as the Fourteenth least to the same Waldron, 108; 354, at 601 A.2d at 289 Md. 325 Md. Murphy, (citations omitted); 705, Hornbeck v. 426 A.2d at 941 at Educ., 295 458 A.2d at County Bd. Md. Somerset in our additional criteria analysis we find useful those assessing claims of a new Supreme used Court suspect quasi-suspect classification. characterized

Although Supreme repeatedly Court has race,43alienage,44 distinctions based on suspect as classes expressly Court not addressed origin,45 national has thereby im suspect, whether sexual orientation is considered Evans, Romer v. heightened scrutiny. See plicating strict or 620, 631-32, 1620, 1627-28, 134 855 L.Ed.2d 517 U.S. S.Ct. a (stating “if a neither burdens fundamental law class, legislative uphold we will right targets suspect nor long so it a rational relation to some classification bears end,” the statute issue under legitimate invalidating review); Kandu, 144 (explain 315 B.R. at rational basis re Texas, Court, in ing that the Lawrence v. 539 U.S. Supreme (2003), did not 156 L.Ed.2d address S.Ct. determining particular nonetheless is useful in whether this factor scrutiny. heightened warrants classification E.g., Loving, 388 U.S. at 87 S.Ct. at 1823. 43. Graham, 403 U.S. at 91 S.Ct. at L.Ed.2d 534.

44. 269, 274-75, Oyama California, 68 S.Ct. 332 U.S. States, 214, 216, (1948); Korematsu v. 323 U.S. L.Ed. United 193, 194, (1944). S.Ct. 89 L.Ed. 280

whether the making Texas statute it a crime to engage consensual same-sex intimate conduct drew a or suspect quasi- classification, suspect but rather invalidated the Texas statute on the it basis that did not reasonably legitimate further a interest); Andersen, (same). government 138 P.3d 976 any closest Justice has come a suggesting view the issue Dist., is found Rowland v. Mad River Local School 470 U.S. 1009, 1014, 1373, 1376-77, (1985) 105 S.Ct. 84 L.Ed.2d 392 (Brennan, J., certiorari), from the dissenting denial of where Justice Brennan stated in his dissent to the denial certiora ri that “homosexuals have been historically object pernicious and sustained hostility, say and it is fair to that discrimination homosexuals against ‘likely is ... to reflect deep-seated prejudice rather than ... rationality.” courts,

The majority state, of other both federal that lesbian, have addressed the gay, issue hold that and bisexual persons neither are suspect members of nor quasi-suspect See, e.g., Perry, classifications. Selland v. 905 260 F.Supp. (D.Md.1995), (4th Cir.1996) aff'd, 100 950 F.3d (applying Mary land law in order to uphold the of the mili constitutionality tary’s Ask, “Don’t Don’t Tell” provisions regarding homosexu ality, determining equal protection that not does mandate scrutiny); High strict Tech Gays Industrial Securi Defense (9th Cir.1990) (“[H]omo ty Clearance Office,895 F.2d 573 sexuals are not a suspect quasi-suspect classification.”); In Kandu, re 315 B.R. at 143-44 (following Ninth Circuit’s Gays, decision in Tech High and determining that the Law Court, rence while “indicating shift in the Supreme Court’s treatment of couples,” same-sex did not declare same-sex couples suspect or quasi-suspect class for the purposes equal Lawrence, protection analysis) (quoting 539 U.S. at 579- 123 (O’Connor, J., S.Ct. 156 L.Ed.2d 508 concur ring) (applying a rational basis standard of constitutional review the sodomy Texas statute prohibiting sexual conduct between two persons sex)); Ake, of the same Wilson v. (2005) F.Supp.2d (“[Hjomosexuality a suspect class that require subjecting would [the Florida Defense Marriage to strict scrutiny Act] under the Equal Protection Children and Dep’t v. Sec. Clause.”) (quoting Lofton Servs., (holding post-Lawrence Fam. 358 F.3d denied, cert. class), homosexuality suspect is not a Andersen, (2005)); L.Ed.2d U.S. S.Ct. (explaining post -Lawrence sexual at 973-76 138 P.3d distinguishing the cases a class and suspect orientation is not Singer, 522 P.2d 1196.46 by couples); the cited same-sex orientation has hold that sexual join shall those courts and We classification.47 suspect or quasi-suspect of as a age not come P.2d 447 Appellees Oregon, Or.App. 971 Tanner v. 46. cite Bonta, Cal.App.4th (1998), Hospital & Med. Ctr. and Children’s (2002), finding sexual as authorities Cal.Rptr.2d Tanner, suspect a basis for classification. to be orientation Oregon Appeals Court stated: of gay concluding people] are difficulty [lesbian that and have [W]e no race, orientation, gender, suspect like of class. Sexual members a defining regarded a religious widely as alienage, distinct, is and affiliation citizens, certainly recognized group it is socially of and society dispute have been and beyond homosexuals in our that political stereotyping subject of adverse social and continue to be the prejudice. and Tanner, at 447. 971 P.2d misplaced because both are distin- two cases is Reliance on these an unpersuasive. Tanner involved guishable case or from instant clause, Oregon’s privileges analysis pursuant to and immunities jurispru- compel finding equal protection our a similar under does not Andersen, ("The [privileges and immunities 138 P.3d at 975 dence. See analysis applies analysis that little resemblance to bears clause] clause.”). Hospital equal protection Children’s likewise under the distinguishable. appellate in that case stated the California court While subject to strict scruti- suspect a classification that sexual orientation is equal gay ny, pertain remotely even and lesbian the issues did not Rather, challenge protection. case involved constitutional hospitals disparate in-state and out-of-state reimbursement between system. The court providing services under California's Medi-Cal only passing suspect its classification observation tendered (distinguish- authority. any supporting Id. without the benefit of sort of "only passing, ing Hospital ground that it stated Children’s authority, [the before California intermediate without issue appellate suspect 'such as race or sexual did not relate to class court] ”). orientation.’ jurisdic- Appellants upon and other 47. We note that some cases which Hardwick, relied, based, part, on Bowers v. have were tions’ decisions (1986). e.g., High See 478 U.S. 106 S.Ct. L.Ed.2d Office, Security 895 F.2d Gays v. Clearance Tech Industrial Defense that, intimacy (stating same-sex sexual between because there is a history While purposeful unequal treat- ment gay persons, and lesbian and homosexual persons subject unique are truly disabilities not indicative their abilities to society, contribute to we gay shall not hold that persons lesbian are so powerless politically they a suspect constitute class. persons

Homosexual have been the object of societal preju- dice actors well private judicial as and legislative branches of federal governments. lesbian, and state Gay, persons subject bisexual likewise have been to unique disabili- truly ties not indicative their to contribute mean- abilities ingfully society. significant period For a of American history, persons generally homosexual object were not the regulatory focus and gender because sexual dif- orientations fering from “traditional” preferences sexual were well conceptualized by the until after public the Civil War. William Gaylaw: Challenging Apartheid N. Eskridge, Jr., (1999) (recounting great detail the genesis of the Closet lesbian, bisexual, of gay, treatment transgender and persons society); Lawrence, 568-69, in American at U.S. 123 S.Ct. 2478-79, at succinctly L.Ed.2d 508 (describing early history conduct, of laws directed at homosexual and explaining “concept the homosexual as a distinct category (citations not person emerge did until the late 19th century”) criminalized, partners can be suspect sexual be a orientation can not or quasi-suspect classification). We do associate ourselves with the reasoning employed portions opinions, they carry in those of the no precedential value the extent of their reliance on Bowers. Other however, portions upon rely, reasoning those cases which we contain independent persuasive analysis equal of Bowers and are in our protection issue before us. Lawrence, furthermore, That Bowers was overturned does not classification, compel recognition suspect of sexual orientation as a as Appellees suggest. judicial peers jurisdictions As our in other have noted, sodomy the Court in Lawrence evaluated the Texas law on the review, comport basis it did not even with rational basis did but way lesbian, not evaluate the gay, statute in such a that declared Kandu, persons suspect bisexual as classifications. See re 315 B.R. 143-44; Andersen, at 138 P.3d at 975-76. bisexual, lesbian, omitted). gay, regulation of Before the criminalization focused on transgender persons to, included, not limited inversion,” but was which “gender lewdness, and obscenity, public cross-dressing, prostitution, Many 27-37. Eskridge, exposure. supra, indecent otherwise deviat- cross-dressed or people viewed who citizens heretics, degener- roles as gender ed from “traditional” ates, Id. at 17-18. psychopaths. profes century, most medical

By turn of the twentieth theory homosexuality. accepted “degeneracy” sionals Gay A Cain, Rights: Lesbian and Litigating A. Patricia (1993). theory This History, 79 Va.L.Rev. Legal homosexuality was an on the notion that primarily was based trait, the “disease” could be and that genetic inheritable castration, radi and other through therapy, “aversion treated 1555, 1555 ‘cures,’ Id. at n. than decriminalization.” cal rather Politics, (citing John D’Emilio, Communities Sexual Sexual (1983); David F. Greenberg, The Construction of Homo Gay sexuality 397-433(1988); Katz, Jonathon, American His tory (rev. 1992)); at 50 Jr., supra, ed see Eskridge, 129-207 General, of Overt Army Surgeon “Disposition U.S. (quoting Homosexuality,” Army April Bulletin No. Cases of E, (explaining that rather than court-martial pt. at 83 sodomy, persons homosexual engage single-sex those who treatment)). Those through be “reclaimed” medical should gay rights in favor publicly who out and lesbian spoke early 1910s 1920s were the “Red Scare” of the late during denaturalized, communists, deported branded Cain, 1950s, In the Union. 1555-56. supra, Soviet of the Committee on Investigations Senate Subcommittee found that “homo Expenditures Department the Executive employ sex were unsuitable for perverts” sexuals and other because government primarily “[t]hose ment the federal in overt of the emo engage[d] perversion lack[ed] who acts [was, there stability persons. tional of normal addition Subcommittee,] of an abundance evidence to according in acts of indulgence sex[ual] sustain the conclusion that of the moral fiber an individual a perversion weakenfed] position responsibili- he for a of degree not suitable [was] Cain, supra, ty.” (citing at 1565-66 Subcomm. for the Comm’n Expenditure Interimreport Dep’t, of in the on the Exec. Employment of Homosexuals and other Sex Perverts in (1950)) S. Doc. No. 2d Cong., 81st Sess. Government, Report Employment (hereinafter “Interim on the Homosex- security Homosexuals were furthermore deemed risks uals”). Cain, susceptibility supra, because their to blackmail. at Report Employment (citing Interim on the of Homosexu- 3). als,

The 1946 elections the beginning saw of a national homosex- “Kulturkampf,” ual a period spanning from 1946 to which it is as many gay believed that as a million and lesbian prosecuted criminally were persons under statutes aimed at (both prohibiting consensual same-sex public adult intercourse hands, private), kissing, holding or other “public forms of states, lewdness.” at 60-67. Jr., supra, Some Eskridge, Florida, namely California, York, Jersey, pro- New New hibited establishments with state-issued from liquor licenses knowingly serving alcohol persons. homosexual Eskridge, Hardwick, supra, at 78-80. In the v. wake Bowers Jr., (1986), U.S. 106 S.Ct. L.Ed.2d 140 and until the Texas, Supreme Court’s decision Lawrence it was not unconstitutional under the Fourteenth Amendment for state legislation making to enact it a crime for two adults consenting of the same sex to engage sexual conduct privacy Lawrence, their home. See 539 U.S. 123 S.Ct. at (“When 156 L.Ed.2d 508 homosexual conduct made criminal State, by the law of the that declaration in and of is an itself subject invitation to persons homosexual to discrimination in the public private spheres.”). both and in the General, As stated Surgeon behavior, culture often stigmatizes [O]ur homosexual identi ty and relationships. These anti-homosexual are attitudes psychological associated with per distress for homosexual may negative impact health, sons and have a on mental including greater suicide, incidence depression self-acceptance lower and a greater likelihood hiding form, sexual orientation.... In their extreme nega these over Averaged violence. [anti-gay] lead to tive attitudes had studies, men and lesbians gay percent two dozen basis harassment on the physical verbal experienced with threatened orientation, 45 had been percent their attack. physical had a violence, experienced 17 percent and Servs., Surgeon The General’s of Health & Human Dep’t U.S. Responsible Health and Promote Sexual Call to Action to 2001) (letter (9 Surgeon Gener- July from the Sexual Behavior al), http://www.surgeongeneral.gov/library/sexualhealth/call. html. in terms persons,

It at least is clear that homosexual in both group been a disfavored history, have contemporary State, further society. of our public private spheres and more, contrary present has evidence to provided case, that, jurisdiction, every other arguing instead because Lawrence, rejected the notion both before and after class, suspect Maryland. should While homosexuals are a so simi protection claims jurisdictions’ dispositions equal other present persuasive one in the case are and lar to the advanced analysis, simply our we do not them accept reinforce own that, in finds of the light This Court nevertheless conclusive. by Supreme other indicia used Court and Court this claims, treat equal history unequal a addressing protection we a classification require suspect ment does not deem circum on sexual orientation.48 We instead view the based a sexual stances as whole order to determine whether public incidents race-based, the 2005 Annual instances Human state.md.us/annrep2006.pdf. er cluding Commission on statistics Appellees total public accommodations, Relations, race, reported reported of hate crimes while reported accommodations cite sex, Human Relations sexual Report, 2006 Annual instances of several were the Commission in recent Annual orientation, Commission for the Commission included a table based annual discrimination in the areas of We according housing. Of the total 511 hate-related discrimination Report find documenting yearly reports sexual age, equally important, to various the 2006 fiscal retaliation, (2006), orientation. Md Comm'n on compiled housing, characteristics, disability, religion, http://www.mchr. by Maryland year, total however, employment, employment, Reports. displaying 350 were reported oth- in- In orientation a protected constitutes classification meriting exacting more level of constitutional review. spite unequal possibly treatment suffered

Appellees certainly portion substantial of other citizens situated, lesbian, similarly persuaded we are not that gay, and persons so politically powerless bisexual are they are to “extraordinary protection majoritarian entitled from the that, political the it process.” contrary, appears To at least in Maryland, advocacy against to eliminate discrimination gay, lesbian, and on persons bisexual based their sexual orientation with has met in the growing legislative successes and execu tive branches of government.49 Maryland statutes protect against discrimination based on in sexual orientation several law, areas the including public of employm accommodation,50 and housing,52 education.53 ent,51 status, origin. familial and national Relations, Comm’n Md. on Human (2005), Report http://www.mchr.state.md.us/2005 2005 Annual 13-15 imalannualfeport.pdf. report alleged states there were 25 orientation, compared instances of discrimination based on sexual age disability. based and cases on 99 cases based on Neither of yet, suspect these Supreme classifications are considered either under precedent. Court or this Court’s in-depth legislative regulatory For an discussion of the 49. and devel- opments Maryland addressing in discrimination based on sexual or- ientation, Old, New, generally Something Something see Something Borrowed, Long Something Overdue: The Evolution “Sexual Orien- of System Maryland Recognition tation-Blind" the and Same-Sex of (2005). Marriage, goal 35 U. Balt. L.Rev. 75-92 While the of the apparently legal highlight article landscape Maryland was to orientation, regarding amenability probable sexual and its to the rec- ognition marriage, presented same-sex the trends there illustrate lesbian, evolving political gay, influence that and bisexual individ- Assoc, exercising. uals are See also Amer. Libraries, of Law Social Re- Standing sponsibilities Special Section, Interest Committee on Lesbian and gay Issues, Introduction the Law: A Research Sexual Orientation Bibliography Annotating Legal Through Selectively Literature XXV("In years, exponential judicial last twelve increase in [Lesbian, Bisexual, opinions legislation regarding Gay, and Trans- accompanied growth by sexual] issues has been in favorable deci- enactments."). legislative sions and 49B, 5(b), 8(a). (Supp.2004), §§ art. 50. Md.Code (2003), 16; ("It §§ § hereby 49B art. Id. at declared Md.Code policy Maryland, to be police of the State of in the exercise of its place, several statutory framework to the In addition basis discrimination prohibit regulations and local state (2004), See, Occ. Health e.g., Md.Code orientation.54 sexual 19-311(6) discrimination § sexual orientation (prohibiting 3-102(h)(l) (2003), §§ workers); art. social Md.Code part on the discrimination (prohibiting sexual orientation Commission, and Sanitary prohibit Washington Suburban any discriminatory employment practices use ing the Regs.Code Commission); Md. tit. by the engaged contractor (2004) 04.07.04(A)(7)(d)(viii), (prohibiting 04.07.05(A)(2)(p) §§ in the admin the basis of sexual orientation discrimination on Regs. Program); Child Care of the Residential istration Md. public safety, public general power protection health and for the welfare, good government for maintenance of business trade, promotion manufacturers of the State’s commerce and receiving persons equal opportunity employment and in all assure all regardless management ... sexual orienta union relations labor tion.”); Regs.Code 01.01.1995.19(I)(A)(11) (prohibit § tit. Md. Maryland employment on the ing expressly in state discrimination orientation); supra, also at 87 of sexual see 35 U. Balt. L.Rev. basis (D.Md.1973) Educ., F.Supp. Bd. (citing Acanfora of proper grounds (holding a that the sexual orientation of a teacher is not (4th grounds, Cir. deny employment), on other 491 F.2d 498 to aff'd 1974)). (2003), 49B, 22-24; ("It § policy §§ is of art. Id. at 52. Md.Code throughout provide housing for the State Maryland of to fair the State orientation.”). citizens, regardless Maryland, its of ... sexual of to all 13A, ("All Regs.Code Maryland’s § tit. students 01.04.03 53. Md. schools, public exception regardless ... of sexual orienta- without and Safe; right A. ... have the to environments are: tion educational achievement; any form Appropriate and Free from for academic C. B. harassment.”). of regulations text extract- that follow in the main are The statutes and amici, parties only supplied by and the briefs and constitute ed from within of portion of anti-discrimination measures found the State description regulations. Maryland’s For a full statutes prohibit on the state and local enactments that discrimination various orientation, supra, see at U. basis of sexual Balt. L.Rev. extensively regulations (cataloging Maryland that eliminated n. Ill discrimination in the administration numerous sexual orientation initiatives, public programs community development assistance regulation prohibit such in the of various and that discrimination State). professions throughout occupations and business 05.03.15(C)(2) 05.03.09(A)(2), §§1 tit. (prohibiting the Code parent’s consideration of the adoptive adoptive either or child’s during sexual the application placement stage orientation or 04.11.18(A) (2005) Regs.Code private adoption); § tit. 5 Md. (prohibiting discrimination on the basis of sexual orientation with, or by, entities involved contractors engaged Regs.Code Special Program); Housing Opportunities tit. Md. 18.06.03(A)(6) (2004) §10 (providing improper that it is providers health care rendering services under the AIDS to Drug Program Assistance consider sexual orientation when services); Regs. determining provide whether such Md. 42.03.03(B)(5) (2005) §10 Code tit. (prohibiting discrimination workers); on the basis sexual orientation licensed social 10.43.03(D)(5) (2005) (same, Regs.Code § tit. 10 in the Md. context chiropractors chiropractic assistants licensed to 29.04.09(C)(1) Regs.Code practice in Maryland); § tit. 14 Md. (2004) (forbidding discrimination in the administration Program). Areas Loan Heritage

Evolutionary legal developments highlighting changing lesbian, gay, bisexual, views toward and transgender persons are not limited statutory regulatory enactments. Supreme jurisprudence, terms of Court one impor of the most Evans, 620, 116 1620, 134 tant cases Romer v. 517 U.S. S.Ct. (1996). This L.Ed.2d case dealt with a voter- Colorado adopted amendment to the that “pre State’s Constitution executive, legislative, judicial all any action at level clude[d] government state or local designed protect status of persons ‘homosexual, based their lesbian or orien bisexual ” tation, conduct, Romer, practices or relationship.’ 517 U.S. 620, 116 1621-22, 134 S.Ct. words, L.Ed.2d 855. In other the amendment sought preclude legislature the Colorado enacting any from that provided protection statute from discrimination on the basis of The sexual orientation. Court unconstitutional, struck the down statute as under rational review, basis as a violation of the Fourteenth Amendment. In Lawrence, 565, 560, 2476, 2475, 539 U.S. at 123 S.Ct. at 156 508, the L.Ed.2d Court overturned v. Bowers Hardwick and that the concluded Fourteenth Amendment to the U.S. Consti-

289 two conduct the criminalization sexual tution forbids own of their homes. privacy of the same sex the persons Lawrence, however, Supreme did the nor neither Romer a suspect constituted persons state that homosexual Court review The instead rational basis to both applied class. Court issue. of the statutes at to the body opinions addressed Maryland appellate

The lesbian, bisexual, and gay, transgender and interests of rights Boswell, 204, 352 Md. 237- is substantial. Boswell v. persons (1998) that, 662, in the (holding 721 678 context A.2d “[this Court] of a rights parent, visitation non-custodial non- no the sexual preference distinctions make[s] parent being challenged. whose is custodial visitation lifestyle or has only parent’s relevance that sexual conduct is type context a visitation of this where that proceeding lifestyle clearly is shown be detrimental conduct v. physical well-being”); children’s emotional State and/or (2004) Smullen, (extending 844 429 380 Md. A.2d battered cou- syndrome to abusive situations within same-sex spouse North, 1, 12, 648 A.2d Md.App. North v. ples); (1994) that the orientation of a non-custodial (deciding sexual rights, for the denial of visitation parent proper not a basis rights on such were placing emphasis whether visitation “best child” and whether there was a interests visitation, showing of harm to the child by granting actual focusing than on the harms” to the child of “perceived rather Frederick, it lifestyle); to a homosexual v. exposing Gestl (determin- (2000) Md.App. A.2d 1102-03 required jurisdiction that trial court exercise ing was brought biological over a child visitation lawsuit moth- partner er’s former same-sex under Uniform Child Custo- Act); Trabbic, Lapides Md.App. v. dy Jurisdiction (2000) A.2d tort (rejecting father’s cause of against partner action his ex-wife’s same-sex domestic interfered harm to his relation- basis she with caused custody); with to which he had ship daughter joint his S.F. M.D., 99, 102, 110, 9, 10, 14-15 Md.App. (holding partner the former domestic of a biological

mother standing has to seek visitation of a child conceived by in vitro fertilization performed during the tenure of their partnership).55 lesbian,

While gay, and bisexual persons in recent history have been the target of unequal treatment in the private and public lives, aspects of their and have been subject to stereo typing ways not abilities, indicative of their among other child, things, to work and raise a recent legislative 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 recog Andersen, (“The nize this. P.3d 974-75 enactment of provisions providing increased protection to gay and lesbian individuals in shows that [the State] as a class gay and lesbian persons but, instead, are not powerless exercise increasing political Indeed, power. passage recent of the amendment Washington [in prohibiting discrimination on the basis of sexual is particularly significant.... orientation] We conclude plaintiffs that have not they established that satisfy [politi powerlessness] cal prong of the suspect test.”); classification see also High Tech Gays, 895 F.2d at 573-74 (concluding, Bowers, independent that, of reliance on we do agree “[w]hile that homosexuals have suffered a history discrimination, we do not believe they meet the other criteria being [for 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 Thus, legislation. homosexuals are not without political power Court, comprehensive 55. For a Supreme list other Federal and State appellate adjudicating gay court cases rights and lesbian from 1981 to Rights (2003). see Daniel R. Gay and American Law 167-213 Pinello, irony 56. The increasing is not lost on political us that and other expression gay power successes of the against Appellees works in this part analysis of our scrutiny given of the level of to be the statute under review. charac- is an immutable homosexuality 2. Evidence that teristic. a human characteristic “immutability” defines

The term Frontiero, birth,” “solely by the accident is determined 1770, that 686, (explaining L.Ed.2d 583 93 36 U.S. at S.Ct. “sex, is an immutable character origin, like and national race birth,” solely by the accident istic determined [that is] possessor or that group), a particular that defines v. Cal. Regents or aside.” escape set “powerless of Univ. of 2784, Bakke, 360, 2733, 57 L.Ed.2d 750 265, 438 U.S. 98 S.Ct. Co., (1978) 406 U.S. Surety & Weber v. Aetna Cas. (quoting (1972)). Plyler also v. 164, 1400, 768 See 31 L.Ed.2d 92 S.Ct. n. Doe, 102 2394-95 457 216-17 n. S.Ct. U.S. (1982) disabili special (“Legislation imposing 72 L.Ed.2d beyond circumstances disfavored virtue of upon groups ties caste’ treatment the kind of ‘class or suggests their control abolish.”). designed to the Fourteenth Amendment was that currently evidence sociological the scientific and Based on notice judicial are unable to take public, available to the we lesbian, readily-recog display gay, persons that and bisexual nizable, group define the such characteristics that immutable purposes class for they may suspect be deemed a to be accorded scrutiny level of determining appropriate present the statute in the case. I.N.S., 225 F.3d on Hernandez-Montiel v.

Appellees rely (9th Cir.2000), by, grounds overruled on other (9th Gonzales, Cir.2005), for the v. 409 F.3d Thomas classification suspect that sexual orientation is a proposition “should people a characteristic that because it is defined ... fundamental to change [it not be because required is] Ninth in or consciences.” The Circuit individual identities identity sexual there that orientation and deed held “[s]exual immutable; to one’s they are so fundamental that] are [and not be to abandon identity person required that a should Hernandez-Montiel, nu (indexing 225 F.3d at 1093 them.” that sexual orientation is merous studies that have concluded in an individual’s early age engrained determined an Ninth conclusion personality). Despite Circuit’s characteristic, that sexual orientation is an immutable ease do persons that court since has declared that homosexual Andersen, classification. See constitute a 138 P.3d at suspect Dist., v. Hill Morgan Flores Sch. 324 F.3d (citing Unified (9th Cir.2003) (holding, pre-Lawrence, “homosexu- class, are a suspect quasi-suspect als are not a but definable scrutiny equal protection entitled to rational basis group 573-74)). Tech (quoting High Gays, 895 F.2d at purposes”) Beyond their reliance on Hemandez-Montiel and two Ma discuss, abstract, ryland inherently suspect cases that ex see Ehrlich Perez rel. immutability, classifications and Perez, (2006) 691, 718-19, Md. 908 A.2d 1236-37 classification); inherently an (discussing alienage suspect as In re 692, 697-710, Heilig, 71-79 Md. (discussing concept gender the context of transsexu how, medically possible, physical als and outward gender may changed), Appellees point manifestations of be studies, with sociological neither to scientific nor which have analysis evidentiary admissibility, in of an support stood argument that sexual orientation is an immutable characterist ic.57 party immutability No addresses in its brief of sexual orientation implications query determining and the of an answer to that applied Family § 2- correct level of constitutional review to be Law orientation, however, immutability 201. The issue of the of sexual is subject of a multitude of recent studies and nationwide debate. See Pillard, Bailey Study J. & Richard C. A Male Michael Genetic Sexual of Orientation, Psychiatry (1991) (studying 48 Archives Gen’l twin, non-twin, the similarities in sexual orientation between adopted siblings, concluding likely are more identical twins orientation); types siblings than other of to have a similar homosexual Hu, Hamer, Magnuson, Angela Dean H. Stella Victoria L. Nan Hu & Pattatucci, Linkage M.L. A Between DNA Markers on the X Chromosome Orientation, (1993) (finding and. Male Sexual 261 Science evidence that there is connection between male sexual orientation and a particular gene suggesting found on the X chromosome and that male relatives); may LeVay, sexual orientation be linked to maternal Simon Hypothalamic A Structure Between Heterosexual and Ho- Difference Men, (1991) (finding mosexual 253 Science 1034-37 that the interstitial (INAH) 3, hypothalamus groups nuclei of the anterior one of four cell brain, hypothalamus region within the found anterior of the is twice as men, large compared in heterosexual men as to homosexual men, that, structurally a heterosexual brain is concluding at least in brain). reports, three dimorphic These considered from a homosexual however, field, challenge. not without important in the are of the most generally imperfections are well-documented. See and limitations Their Biology: A Halley, and the Politics Janet E. Sexual Orientation of Immutability, Critique Argument 46 Stan L.Rev. 529-46 of from (1994) leading (reviewing within the studies the limitations and flaws orientation); Wickelgren, Ingrid biology sexual on the link between Questioned, (1999); Discovery “Gay 284 Science Eliot Gene” Questioned, Marshall, Study “Gay 268 Science NIH’s Gene” contrary and have concluded have found indicia . Other studies environment, part, play least in a factor that culture and See, e.g., Dean H. development Hamer, an individual’s sexual orientation. Orientation, ah, 803a 285 Science et Genetics and Male Sexual (1999) (“Sexual probably shaped complex is is a trait that orientation factors, multiple genes, biological, including environ- by many different influences.”); mental, Bailey, J. Michael Michael P. and socio cultural Martin, Dunne, Genetic and Environmental Nicholas G. Influences Sample, Correlates in an Australian Twin Sexual Orientation and its authors, (2000). 78(3) & Soc. Even the J. Psychol. Personality biological notably LeVay, have indicated that the studies do most Simon biology primary indicator of sexual orientation. not establish that ("The LeVay, discovery in size supra, that a nucleus differs at 1036 that sexual orien- between heterosexual and homosexual men illustrates level, study biological at the and this tation in humans is amenable to discovery receptors opens to studies of neurotransmitters or the door regulating aspect personality. might be this Further that interpretation involved specula- study considered of the results of this must be particular, do not one to decide if the size of tive. In the results allow consequence INAH 3 in an individual is the cause or the of that orientation, the size of INAH 3 and sexual individual’s sexual or if third, co-vaiy orientation under the influence of some unidentified variable.”). any We no means are able to form sort merits-driven forgoing only We note that there does conclusion based on the studies. yet among "experts” origin appear a consensus as to the of an to be individual’s sexual orientation. research, currently public Based on our no studies available to the subjected rigorous analysis Frye-Reed have been under the standard reliability methodology, in order to determine scientific principles, foregoing and resultant conclusions of the studies for the States, purposes evidentiary admissibility. Frye v. United 293 F. 1013, (D.C.Cir.1923) expert testimony (requiring 1014 that is admissi- judge only by the that the ble when it is determined trial deduction is belongs); generally accepted particular it in the field in which Reed v. State, 374, 389, 364, (1978) (adopting 391 373 in the 283 Md. A.2d "general acceptance” Frye); State of rule annunciated in State, 480, 10, 1289,

Hutton v. 339 Md. 494 n. 1295 n. 10 Chesson, 314, 327, (1995); Montgomery see Mut. Ins. Co. v. 399 Md. 923 939, (2007); Note A.2d 946 see also Committee to Md. Rule 5-702 ("[Rjequired for the admission of novel scientific scientific foundation law.”). techniques principles development through or is left to case any analyses Nor were we able to locate of the studies under the 294 scientific conclu generally accepted

In the absence of some characteristic, homosexuality as an immutable identifying sion indicia used this Court and the light and in of the other class, a we decline on the Supreme defining suspect Court recognize in the case to sexual orientation present record quasi-suspect and therefore a or suspect an immutable trait Andersen, 974; Marriage P.3d at In re classification. See 138 Cases, 675, Dist.2006), review Cal.Rptr.3d (Cal.App.lst (2006). 317, majori 149 P.3d 737 The granted, Cal.Rptr.3d jurisdictions comparable equal of other that have addressed ty reviewed similar statutes under rational protection challenges Kandu, 143-44; Wilson, B.R. See In re analysis. basis denied, 1307; Lofton, 358 F.3d at cert. F.Supp.2d (2005); Ander 125 S.Ct. 160 L.Ed.2d 825 U.S. 973-76; sen, 522 P.2d at 1196. Singer, 138 P.3d at Marriage Deeply Right is Not so IV. to Same-Sex History in the and Tradition of this Rooted State Nation Such That it Should be Deemed as Whole Fundamental. § 2-201 Family contend next that Law

Appellees it their subject scrutiny significantly to strict because burdens right marry guaranteed by process fundamental the due federally by of Article 24. First defined protections are those rights privi Court fundamental Supreme that are “so rooted in the traditions and leges and immunities they “implicit our that are considered people” conscience of Connecticut, liberty.” ordered Palko v. concept (1937) 319, 325-26, 149, 152, 58 S.Ct. 82 L.Ed. 288 U.S. admissibility applied standard for in the Daubert/Kumho Tire/Joiner systems. and certain of our sister state court Daubert v. federal courts Inc., Pharm., Dow 509 U.S. 113 S.Ct. 125 L.Ed.2d Merrell 702; (1993), superceded by v. Carmicha Kumho Tire Co. Fed.R.Evid. el, 137, 147-49, 1167, 1174-75, 526 U.S. 119 S.Ct. 143 L.Ed.2d 238 (1999) (holding obligations imposed by gate-keeping basic Court, Daubert, judge applies Supreme upon a federal trial U.S. only testimony, expert testimony); to "scientific” but all General Elec. 512, 517-18, Joiner, 522 U.S. 118 S.Ct. 139 L.Ed.2d 508 Co. judge's ruling regarding admissibility (holding trial discretion). only scientific evidence is reviewable for an abuse of

295 97, Massachusetts, 105, 54 291 U.S. S.Ct. Snyder v. (quoting (1934)); v. 521 330, 332, Washington Glucksberg, 78 L.Ed. 674 (1997) 2258, 2268, 772 702, 721, 138 L.Ed.2d 117 S.Ct. U.S. as that are “ob- rights privileges those (defining fundamental tradition,’ history in this and ‘deeply rooted Nation’s jectively, that concept liberty,’ of ordered such ‘implicit ... and in the they if sacri- exist were liberty justice nor would ‘neither 152, ”) Palko, 325-26, 82 58 at 302 U.S. at S.Ct. (quoting ficed.’ Cleveland, 494, 288); 431 U.S. City v. East L.Ed. Moore (1977) 1938, (defining 52 531 503, 1932, L.Ed.2d 97 S.Ct. “deeply liberty those interests that are rights fundamental as tradition”) (plurality opin- history in this and rooted Nation’s ion). very similar definition for determin

We employ for state constitution right what constitutes a fundamental ing State, 702, 716, 481 199 300 Md. A.2d analysis. al Sites (1984) those that are “so (defining rights fundamental as and of our as to be people rooted the traditions conscience in the of ordered implicit concept as fundamental or ranked (charac Waldron, at 289 Md. at 947 liberty”); recog 24 as rights Article “those terizing protected of the of this history people nized as vital to the traditions Tschechtelin, 483, 537, State”); Md.App. 763 Samuels v. 135 (2000) (quoting Glucksberg, U.S. at A.2d 772). In at 138 L.Ed.2d whether determining S.Ct. right, a fundamental liberty an asserted interest constitutes to what is “personal private we look not our notions” of fundamental, but rather to the “traditions and [collective] Connecticut, of our Griswold v. 381 U.S. people.” conscience 479, 493, (Goldberg, 85 S.Ct. L.Ed.2d case, therefore, J., concurring). task present Our objectively right marry whether another determine history is so rooted person deeply same sex whole, State, of this as well as the Nation tradition if it sacrificed.” liberty justice “neither nor would exist were L.Ed.2d Glucksberg, 117 S.Ct. U.S. A. Right at Stake must Clearly be Precisely

Identified.

It is undisputed that the right in its marry, most sense, general is a liberty fundamental goes interest the core of what the Supreme U.S. Court has right called the See, to “personal autonomy.” e.g., Planned Parenthood of 833, Casey, 851, 2791, S.E. Pa. v. 505 2807, U.S. 112 S.Ct. 120 (1992) (“At L.Ed.2d 674 the heart of liberty is the to right existence, define one’s own of concept of meaning, of the universe, life.”). and of mystery of human This right to personal privacy recognized was formally by the Supreme U.S. down, Court Griswold where it struck as an intrusion upon the constitutionally protected right to privacy, marital a ban on the use of contraceptives by married couples. heterosexual The Court reasoned that there are privacy zones of created by guarantees Bill Rights serve “as protec [a] against tion all government invasions ‘of the sanctity of a ” Griswold, man’s home privacies and the of life.’ 381 U.S. at 484, 1681, 85 S.Ct. at 14 L.Ed.2d 510 (quoting Boyd v. United States, 616, 630, 116 524, 532, U.S. 6 S.Ct. 29 L.Ed. 746 (1886)). rights Other considered fundamental gen under this eral right personal to autonomy are those relating decisions to child-bearing,58 education,59 child-rearing and intimate associa tion and sexual intimacy,60 the to right use contraceptives,61 Int'l, 678, Carey 685, 2010, Population v. Services 431 U.S. 97 S.Ct. 2016, (1977) ("The 52 L.Ed.2d 675 beget decision whether or not to very bear a child is at the constitutionally protected this cluster of choices.”); Wade, 113, 705, v. Roe 410 U.S. 93 S.Ct. 35 L.Ed.2d 147 (1973) (invalidating prohibited a Texas law that abortions on the basis right that a woman has a Due Process to make fundamental decisions affecting body). her Sisters, 535, 510, 571, Society 59. Pierce v. 268 U.S. 45 S.Ct. (1925); Nebraska, 390, 399, Meyer L.Ed. 1070 v. 262 U.S. 43 S.Ct. (1923). 67 L.Ed. Texas, 60. Lawrence v. 539 U.S. 123 S.Ct. 156 L.Ed.2d 508 (2003) (invalidating a private Texas statute that criminalized sexual intimacy by consenting couples). same-sex Baird, 438, 454, 1029, 1038, 61. Eisenstadt v. 405 U.S. 92 S.Ct. (1972) (extending reasoning L.Ed.2d 349 employed in Griswold to treatment,62 medical lifesaving right to refuse unwanted and, before, rights right marriage.63 as stated rights a few the that the autonomy just embrace personal See, v. e.g., Shapiro has deemed fundamental. Supreme Court 618, 634, 22 L.Ed.2d U.S. 89 S.Ct. Thompson, 394 state); (1969) (the v. from state to Kramer right to move Dist., 621, 627, 89 U.S. S.Ct. School Union Free (the vote); right L.Ed.2d Griffin (1956) (the Illinois, 12, 76 100 L.Ed. 891 S.Ct. 351 U.S. access to right equal appeal). a fundamental whether there is

Determination however, end marriage, does not to enter into a same-sex right outlining importance invocation of the cases with a brief interests that make liberty and the other marriage generally prohibited under the Amendment invalidate a law Fourteenth contraceptive persons). to unmarried distribution of devices 2841, Health, 261, 278-79, Dep’t U.S. 110 v. Mo. 497 S.Ct. Cruzan 62. 2851-52, (1990) possesses (holding every person 224 111 L.Ed.ld life-saving constitutionally protected right unwanted to withdraw from treatment). medical liberty beyond right marry a fundamental It is doubt that the is protected by e.g., Safley, See v. 482 interest the Constitution. Turner 78, 2265-66, 95, 96-97, 2254, 2265, 107 96 L.Ed.2d 64 U.S. S.Ct. (1987) regulation prohibited (holding a Missouri unconstitutional superintendent marrying, approval prison inmates from absent marriage, finding compelling for the after a that there were reasons marry, many though right to as with other constitutional even incarceration); rights, substantially as a result of Zablocki restricted 374, 384, 673, 680, (1978) Redhail, S.Ct. 54 L.Ed.2d 618 v. 434 U.S. 98 ("[T]he marry, bring up is a right a home and children’ 'to establish ....”) part liberty protected Process Clause central Due 390, 399, 625, 626, Nebraska, (quoting Meyer S.Ct. 67 v. 262 U.S. 43 371, Connecticut, 376, (1923)); S.Ct. L.Ed. 1042 780, Boddie v. 401 U.S. 91 785, (1971) ("[M]arriage 113 involves interests of basic 28 L.Ed.2d 1, 12, importance society.”); Loving Virginia, our v. 388 U.S. 87 S.Ct. 1817, 1823, (1967); ex rel. 18 L.Ed.2d 1010 Skinner Oklahoma 535, 1110, 1113-14, Williamson, 541-42, U.S. 62 86 L.Ed. 316 S.Ct. (1942) very (describing marriage 1655 as ''fundamental to the existence Skinner, 541, race.”); at see U.S. at 62 S.Ct. [human] also 316 1113-14, ("The long recog- marry has 86 L.Ed. 1655 freedom been personal rights orderly pursuit of the vital essential to the nized one men.”). happiness by free 298

up the rights fundamental panorama of personal autonomy. Before determining fundamental nature of an asserted interest, liberty the right at stake should be defined precisely. Samuels, 537, 135 Md.App. at 763 A.2d 238 (“[A]nalysis of an alleged substantive process due violation ‘must begin with careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care ”) whenever we are asked to break new ground in this field.’ Flores, (quoting 292, Reno v. 302, 507 U.S. 113 S.Ct. (1993) (in L.Ed.2d turn quoting Collins v. Harker 115, 125, Heights, 503 U.S. S.Ct. 117 L.Ed.2d (1992)); 721, 117 Glucksberg, 2268, 138 U.S. at S.Ct. at (“[W]e L.Ed.2d 772 required have substantive-due-process cases ‘careful description’ of the asserted fundamental liber interest.”)(internal ty omitted)); citations see also Glucksberg, 722-26, 728, U.S. 117 S.Ct. at 138 L.Ed.2d 772 (stating that liberty the asserted interest at issue in the case was framed more properly as the “right to commit suicide with another’s assistance” rather than the broadly-stated “lib erty to choose how to die” or the “right humane, to choose a death,” dignified and determining that there existed no funda mental right to assisted suicide even though the right refuse lifesaving medical treatment deeply was rooted our history) Dir., Nation’s (distinguishing Cruzan v. Mo. Dep’t of Health, 261, 278-80, 497 U.S. 110 S.Ct. (1990)); Harris,

L.Ed.2d 224 Lewis v. 188 N.J. (same); Cases, In re Marriage 49 Cal.Rptr.3d at 701 (holding that an right asserted must be “concrete and particularized, (citations rather than abstract and general”) omitted). Once the asserted liberty interest is identified clearly, we determine objectively whether it is deeply rooted traditions, the history, and conscience of the people of Maryland and the Nation as a whole.

Appellees argue that we should not be concerned with whether the Court recognize should a new right fundamental to same-sex marriage, but instead should focus on whether the existing fundamental right to marriage should be extended to include couples. same-sex Specifically, Appellees seek a dec-

299 the to marry encompasses right to right that the laration from interference choosing without marry person one’s is the sex. person even if the same other government, tradition, that, assessing history “in They argue further historically enjoyed (e.g., been what has proper inquiry is enjoyed (e.g., it marry), historically to not who has right relationships).” substantially A similar people heterosexual jurisdictions to in other argument peers has been made our See, marriage confronting challenges. same-sex course (M.D.Fla.2005) Ake, 1298, v. 354 1305 e.g., F.Supp.2d Wilson (“Plaintiffs right marry that their to someone argue guaranteed by is right sex is a fundamental that same Clause.”); Amendment’s Due Process Standhardt Fourteenth State, 276, 451, 458 v. 206 Ariz. 77 P.3d Superior Court of Columbia, 307, A.2d Dean v. Dist. 653 333 (App.2003); Hallaban, 588, (Ky. Jones v. 501 590 (D.C.App.1995); S.W.2d 310, Nelson, Baker v. 291 Minn. 191 N.W.2d App.1973); (1971); Andersen, 138 Each of 186 P.3d at 976-79. these courts, rejected with the appellate presented argument, when here, we join it. For the reasons stated those courts hold properly terms of whether the issue framed more right marriage to choose same-sex is fundamental. support argument, Appellees rely principally of their v. U.S. 87 18 L.Edüd 1010 Loving Virginia, 388 S.Ct. (holding right that the fundamental encom marriage one’s if passes right marry person choosing, even race); Connecticut, is of a different Boddie v. person 371, 376, 780, 785, (1971); U.S. 28 L.Ed.2d 113 S.Ct. Redhail, v. Zablocki 434 U.S. S.Ct. L.Ed.2d 618 (1978); v. Safley, Turner 482 U.S. 107 S.Ct. (1987); and, through

L.Ed.2d reference to other cases that it, Williamson, cite rel. Skinner Oklahoma ex U.S. (1942). 1110, 1113-14, 86 L.Ed. 1655 S.Ct. We find that, certainly generally while these cases establish the funda right marry, they mental nature of the do not represent compelling right basis extend the fundamental to include marriage. right All of the infer that same-sex cases marry enjoys its fundamental status due to the male-female the relationship

nature of the attendant link to foster- and/or ing procreation species. explain. of our We that,

Appellees rely Loving for proposition despite the long history prohibition against marriages, interracial Court declared in that case Supreme right that to marry constitutionally guaranteed was to different-race cou- ples just as it was single-race couples, Loving, available to thereby U.S. S.Ct. at 18 L.Ed.2d declar- ing that was proper inquiry right the case whether the itself been historically enjoyed had rather who than had historically enjoyed We disagree. it. Supreme basis Court’s decision as to the couples’ process challenge

interracial due was “[mjarriage that man,’ is rights one of the ‘basic civil to our fundamental added) very (emphasis existence and survival.” Id. (citing Skinner, 316 U.S. at S.Ct. 86 L.Ed. 1655 (“Marriage procreation are fundamental the very to race.”)) added). existence and survival of the (emphasis As “[wjhether stated, peers our on other have courts the Court Skinner marriage procreation [in ] viewed as a single right, indivisible the least that be can said is that it was obviously contemplating unions between men and women right when it ruled that to marry was fundamental. This is hardly surprising inasmuch as none the United States any sanctioned marriage configuration other at the time.” Baehr, 56; Standhardt, 852 P.2d at 77 P.3d at 458 (stating “[ijmplicit Loving and predecessor opinions is the notion marriage, procreation, often linked to is a union forged woman,” man between one and one concluding that, expanded “while Loving scope traditional fundamental right marry by granting interracial couples unrestricted access to the marriage state-sanctioned institu- tion, that decision was anchored to the concept marriage Dean, involving persons sex.”); union of the opposite A.2d at 332-33 that the (holding right marriage deemed its link procreation). fundamental because of the Su- throughout import appears similar Language of fundamental the establishing as preme jurisprudence Court’s Hill, Maynard commented right marry. The Court (1888), 723, 729, 654 that 190, 211, 8 31 L.Ed. 125 S.Ct. U.S. in institution, of which its in the maintenance “[marriage] is an interested, it for is foundation public deeply is purity the which there would be society, and without family of the Zabloeki, the Supreme In progress.” civilization nor neither to surprising is not decision reasoned that “[i]t Court importance level has the same of placed been marry childbirth, rearing, child and relating to procreation, decisions recog- sense to would make little family relationships.... [I]t family with to other matters of right privacy respect nize a to enter the relation- life to the decision respect and with society.” 434 family in our U.S. ship that is the foundation 681, (upholding the funda- 386, at 54 L.Ed.2d 618 at 98 S.Ct. with child right marry non-compliance for those mental so, the Court doing In the course of support obligations). of the fundamental status genesis explained detail marriage: accorded 723, Hill, 190, 31 v. 125 U.S. 8 S.Ct. ago, Maynard

Long (1888), as “the marriage 654 characterized L.Ed. the Court 205, life,” at 8 S.Ct. at important [125 relation in U.S. most family 726, 654], as “the foundation of 31 L.Ed. civilization society, which there would be neither without 211, 729, 31 L.Ed. U.S. at 8 S.Ct. at progress,” [125 nor 625, 654], Nebraska, 390, 67 In 262 43 S.Ct. U.S. Meyer (1923), right that the “to recognized 1042 the Court L.Ed. children” a central bring up establish a home and marry, Clause, by the Due Process part liberty protected 399, 626, 1042], and in 67 L.Ed. U.S. at 43 S.Ct. at [262 Williamson, ... mar- supra, ex Skinner v. Oklahoma rel. very to the existence was as “fundamental riage described 1113, race,” 541, at 62 S.Ct. at and survival of the U.S. [316 1655], L.Ed. 86 618;

Zablocki, 680, 54 see 434 at 98 S.Ct. at L.Ed.2d U.S. (1993). Lewin, In 74 P.2d 56 also Baehr v. Haw. Boddie, 376, 381-82, at 401 U.S. at 91 S.Ct. 113, the Supreme

L.Ed.2d Court declared that “marriage importance society.” involves interests basic in our U.S. 91 S.Ct. at 113 (citing generally L.Ed.2d Skinner, Meyer). Loving, light that fundamental of marriage, nature the Court invalidated statute au- thorized the State Connecticut to deny access to the courts indigent divorce, seeking citizens to obtain solely because Boddie, were they pay requisite unable court fees. Thus, U.S. S.Ct. at 28 L.Ed.2d 113. virtually every Supreme case recognizing Court as fundamen- right tal the marry indicates as the basis the conclusion procreation, the institution’s inextricable link to which neces- (in sarily biologically participation involves ways either remote) Andersen, intimate or by a man and a woman. at 978 (“Nearly P.3d all United Supreme States Court deci- declaring marriage sions to be a right expressly fundamental marriage link rights childbirth, to fundamental of procreation, abortion, and child-rearing.”). case, one exception

The is Turner v. Safley. that the Court Supreme struck down as unconstitutional a Missouri Division of Corrections regulation that an inmate precluded from unless he marrying or she from permission received the superintendent, and only upon finding that there was a Turner, for “compelling marriage. 78, reason” the 482 at U.S. 2256-57, at S.Ct. 96 L.Ed.2d 64. The term “compelling reason” was regulation, not defined the but prison officials at testified trial that the reason only deemed compelling was the to pregnancy of woman be or married the birth of a Turner, out of child wedlock. at U.S. S.Ct. at 2258, 96 L.Ed.2d 64. The Court that concluded the fundamen- marriage tal to in right recognized applied prison Zablocki to just inmates as it applied to non-incarcerated individuals. Turner, 482 U.S. at 107 S.Ct. at 96 L.Ed.2d 64. Among several given reasons for application Zablocki to the at issues bar was that “most will eventually inmates be commutation, by parole released and therefore most inmate marriages are in expectation formed they ultimately that Turner, will fully be consummated.” at U.S. 107 S.Ct. additionally reasoned 64. The Court L.Ed.2d tangible to certain precondition as a marriage often serves legitimization of children benefits, including intangible given the reasons It true that wedlock. Id. is born out of to were not marry of inmates right the fundamental support and, indeed, some of procreation to express linked in terms procreation. wholly independent reasons were given couples to those given granting the reasons Whatever however, the Court was it is clear to right marry, it man and woman when marriage contemplating between case regulation. the Missouri declared unconstitutional number, and a couples, sex challenges by opposite involved right of the all, given support although not of the reasons i.e., consummation couples, sex only opposite marry applied outside the of children born legitimization marriage us to frame persuade does not relationship. Turner marital Ander wish. See present Appellees case inquiry sen, 138 979.64 P.3d at right marry,

It doubt that beyond is the Feder right recognized both abstract, a fundamental is fundamental we deem al this State’s Constitutions. While it nevertheless a right marry, latitudinously-stated this Griswold, additionally 85 S.Ct. at Appellees rely on 381 U.S. Eisenstadt, 405 U.S. at 92 S.Ct. L.Ed.2d 1029, 1038, Supreme proposition that the for the 31 L.Ed.2d historically enjoyed rather than who historical- to what was Court looks rely ly enjoyed They it. reason that in Eisenstadt the Court did couples history that unmarried were entitled and tradition to conclude contraceptives. privacy Overlook- right and the use to the of sexual right marriage directly to ing the not involve the the fact that case did Eisenstadt, equal protection grounds, 405 that it was decided on and 1038, 349, we deem it at 92 S.Ct. at 31 L.Ed.2d nevertheless U.S. supra, distinguishable. the As cases cited decision was with the other right produce The Court in Eisenstadt the to children. based on privacy anything, right right it is the of that the means "[i]f reasoned individual, single, govern- or to be free from unwarranted the married affecting fundamentally person a into so the mental intrusion matters 453-54, beget a 405 U.S. to bear or child.” decision whether (citations omitted). ability The to bear or 31 L.Ed.2d 349 S.Ct. requiring beget inherently a at some level the children is characteristic (at participation a a woman least until science demon- of man and otherwise). strates public historically institution that has been to the subject State.65 Henderson v. police of the regulation powers and Henderson, (“The 449, 458-59, 199 Md. A.2d sovereign regulate State has the to power marriages, and accordingly can determine who shall assume and who shall see borders.”);66 the within occupy matrimonial relation its (1957, also Article, Law Repl.Vol.), Family Md.Code Ann. 2-407, 2-409, requirements §§ 2-201 to 2-410 the (delineating (unless in marriage Maryland) for a valid the State of other noted, portion all opinion wise references this of the are to Family the Law Article of the Maryland). Annotated Code of note, however, police power regards 65. We that this is not absolute. regulation, Legislature may, to social economic usually police power, regulate the exercise what is called its [ ] act, regulation or restrict the freedom of the individual to when such health, protection public safety, or restraint is essential to the of the however, power, subject morals. That is itself to the restraints imposed by people adopted constitutions which the whole have approved supreme as the law of the land. (Thus), legislature may, proper while the in the exercise of the police classify persons power, prescribed State's to whom ..., regulation necessary public may found to apply be welfare ..., may regulated or determine whether certain classes of acts be power nevertheless the exercise of the must have some real and ..., public legislature may substantial relation to the welfare and the not, power, power under the cloak exercise a forbidden Constitution, rights away privileges guaranteed or take expressly by it. Waldron, 718-19, (quoting 289 Md. at 426 A.2d at 948-49 Dasch v. Jackson, (1936)). 170 Md. 183 A. 538-39 We note marriage subject police power employ is to the State not to urged by reasoning Family § sort of circular the State 2- Law automatically, 201 is constitutional but rather to illustrate that the Assembly always this right General Court have not couched marry its in most abstract sense. appears declaring any marriage 66. Unfortunate dicta Henderson void persons. within between Caucasian and African-American (1952). objective Md. obviously A.2d This is light Supreme subsequent holdings Loving. invalid in Court’s Henderson, however, point The of our allusion here is as an illustra- Maryland may compelled tion that the State recognize be marriage performed foreign marriage repug- in another state if that (interracial Maryland’s public policy marriage against nant to was decided). public policy Maryland at the time Henderson was Id.

305 may person vein, particular a In that whether enjoyed has historically on who depended often has marry marry is not absolute. right to Indeed, the fundamental right. is marry if the minor law, may a minor not Under 2-301(c). If child is Family § Law of 15. age under the is given unless consent old, may marry not 15 he or she years marriage issuing the clerk or parent guardian a the female to be that with documentation supplied license is Family Law has birth. given or pregnant married either is 2-301(b). age, he or she years or 17 If the child is 16 § parent from a is consent obtained not unless there may marry woman, given is or, in documentation the case guardian or has to married is pregnant the woman be indicating that v. (a); § 2-301 see also Picarella Law given Family birth. 499, 510-11, 833-34 Picarella, 316 A.2d Md.App. (1974). rooted in the marriage this on are type Limitations of (1939) (describing Op. Att’y Gen’l common law. See law). marriage at common Individuals age placed limits consanguinity lineal or collateral degree within a certain § a mar Family Law 2-202. order for marry. not may State, to it must be the parties to be valid within riage understanding and mentally that “there an competent [is] such being ceremony gone was that was appreciation of what the with, naturally through legal consequences and what were the U’Nertle, v. 143 Md. Montgomery therefrom.” deducible (1923); Elfont, 161 Md. 122 A. Elfont (1932) (“[T]o marriage invalid because 157 A. render a contract, of one of the to the it part parties on the insanity was clearly convincingly party be such must shown marriage understand the nature the contract unable to deducible consequences naturally appreciate legal and to therefrom.”). subject are likewise Bigamous relationships from State, any marriage stemming by regulation Roth, Roth v. is considered void. relationship such (voiding 433, 436, Md.App. continuing of Henderson does portion affect discredited principle marriage subject police power of the State. vital when marriage parties one of the a still-living spouse has from a previous marriage where no decree of divorce from the issued); Donnelly Donnelly, previous marriage has been 341, 346-47, (1951); see Family Law 198 Md. 84 A.2d 92 2-402(b) § in (requiring application for a marriage license by parties disclosure of the marital status of each party). are not any Maryland, We aware of ease from the U.S. Court, or Supreme domestically elsewhere in which the issue in has been framed terms of right whether fundamental to marry encompasses, example, for “the right fundamental to marry a person choosing of one’s without government interfer- ence, even if person that other is lineally directly and related to the citizen asserting their right marry,” fundamental to such that strict scrutiny was deemed the appropriate standard analyze constitutional review to the relevant statute. principle defining precisely the liberty asserted interest is not limited to the analytical context of marriage. scope liberty When the an asserted interest becomes rele- vant to determining the fundamental nature of right, that we sought have narrowly right define and identify precise- ly the Suessmann v. group asserting liberty interest. Lamone, (2004), 1 383 Md. 862 A.2d example, unaffili- registered ated in voters filed suit the Circuit Court for St. Mary’s County “seeking declaratory injunctive from relief the allegedly unconstitutional exclusion of unaffiliated voters from the Democratic and Parties’ Republican primary elec- tions for circuit court judicial candidates.” Md. 383 at 862 A.2d in Judges at 5. were chosen a general election to judges gained which the placement access securing on the through victory ballot primary either elections held Suessmann, Republican Democratic and parties. 704-05, atMd. at argued case, A.2d 5. The State in that we agreed, that “the fact imposes mere a law a burden on right to vote does not law subjected mean the must be Suessmann, scrutiny.” strict 383 Md. at 862 A.2d at framing 20. Rather than the constitutional issue terms of generally vote, stated fundamental right we reviewed narrowly, the election laws terms of whether “the State in the right vote deprived plaintiffs] [the ha[d] they belong not .” to which party [did] elections primary method of Suessmann, at 21. This Md. at not inconsistent with interest is liberty the asserted framing See, the issue. addressing courts by various other that taken (“Constitu Cases, at Marriage Cal.Rptr.3d In re e.g., defined so rights need be tionally protected fundamental by everyone.”); inevitably will be exercised broadly they 722-26, 728, 117 S.Ct. Glucksberg, U.S. see also as the liberty interest (framing the asserted 138 L.Ed.2d rather than suicide with another’s assistance” “right to commit to die” or abstractly-stated “liberty to choose how the more humane, death,” determining dignified “right to choose that, lifesaving medical treat right even to refuse though history, there existed was rooted our Nation’s deeply ment suicide); Glucksberg, to see also right no fundamental assisted (“That 138 L.Ed.2d 772 117 S.Ct. at 521 U.S. at Due by the Process rights protected and liberties many autonomy not warrant the personal does Clause sound intimate, important, all and any conclusion that sweeping Abigail so Alliance personal protected.”); decisions are for Eschenbach, v. Developmental Drugs Access to von Better (D.C.Cir.2007) (determining, pursuant to F.3d 701 n. to framed “whether Glucksberg, properly that the issue was right experimen ill a to terminally patients have fundamental I testing,” rather drugs passed tal that have Phase clinical “to to save one’s life” broadly-asserted right try the than adopted by ill the by terminally patients proposed (D.C.Cir.2007) Eschenbach, dissent); 701 n. 5 495 F.3d (“If right is that it protects person’s the asserted so broad life, subject scrutiny any to might his it strict efforts save means which he action that would affect the government so, chance sought to do no matter how remote the of suc cess.”). task, therefore, the right is to determine whether

Our in the marriage deeply history, is so embedded same-sex tradition, Nation that it should be and culture of this State and is not. deemed fundamental. We hold that it B. There is No Fundamental Right Requiring State to

Sanction Same-Sex Marriage

It concepts equal well-established protection process and due embodied in Article similar to Amendment, the Fourteenth are viewed as somewhat flexible dynamic in order to accommodate advancements economic, contemporary political, and social climate. As we stated, have principles

while the of the Constitution are unchangeable, interpreting they which language expressed are it will be given meaning permit which will the application of social, those principles changes economic, political life of the people, which the framers did not and Thus, could not while may foresee. we not depart from the Constitution’s plain language, we are bound strictly accept only the meaning language at the time of Thus, adoption.... we construe the provi- Constitution’s society sions to in our modern accomplish for purposes they which were adopted by drafters. State,

Benson 615, 632-33, 389 Md.

(citations omitted); Lawrence, see also 539 U.S. (“As S.Ct. at endures, 156 L.Ed.2d 508 the Constitution persons generation in every can invoke its in their principles freedom.”). own for greater search acquiescence Mere for time, however, any length will not adequate serve as an foundation the constitutionality of a particular legislative economic, enactment. We therefore consider the current po- litical, and social climate order to determine whether same- sex is marriage right. a fundamental

There no legal is doubt that the landscape surrounding the of rights homosexual A persons evolving. trend toward lesbian, gay, persons and bisexual gaining rights more seems Old, see generally Something Maryland, evident within Some- New, Borrowed, thing Something Something Long Overdue: The a Evolution “Sexual System Orientation-Blind” of Maryland and the Recognition Same-Sex Marriage, U. of Balt. L.Rev. 75-92 (cataloging recent trends toward bisexual, persons lesbian, and transsexual gay, equality for constitutionality of same-sex on the impacts its potential as Nation in the laws of the as well as marriage Maryland), Lawrence, 575, 579, at 123 S.Ct. U.S. at a whole. that (overruling Bowers declaring L.Ed.2d 508 to states precedent allowing viability of the the continued mem- intimacy between sexual private criminalize consensual lives of homosexual “demeans of the same sex bers Romer, 623-24, 632, 116 S.Ct. persons.”); U.S. that it (invalidating grounds on the 134 L.Ed.2d 855 single a disability on and undifferentiated “impos[ed] broad Constitution an amendment the Colorado group” named to pass prohibiting laws illegal legislature it that made lesbian, and bisexual against gay, persons discrimination Assoc, of see also Amer. orientation); sexual account of their Responsibilities Special Libraries, Interest Sec- Social Law Gay Standing Intro- Issues, tion, on Lesbian and Committee A Research duction of Sexual Orientation and the Law: Annotating Legal Bibliography Selectively Literature Through increase in (discussing exponential at XXV legislative granting law and enactments years recent of case bisexual, never lesbian, rights persons and transsexual gay, statutory Despite expanding library of enjoyed). before this awareness judicial acknowledging growing authorities lesbian, persons and bisexual protect gay, the need require acceptance alone does society, broader right fundamental recognize State or we the asserted seek. Appellees Law- Romer particularly precedent,

The breadth rence, concept establishing deeply rooted the falls short Romer, Supreme Court while marriage. same-sex its it unconstitutional for Colorado amend held that was legislative protecting enactments preclude constitution to state orientation, from based on sexual the Court did discrimination determined, equal protection. so on the basis of Court furthermore, “disadvantage imposed is born [that] that a affected,” re- persons thereby animosity toward the class politically unpopular “a ... to harm a flecting bare desire legitimate governmental group[,] cannot constitute a interest.” Romer, 634-35, 1629, at U.S. at S.Ct. 134 L.Ed.2d 855 (citations omitted). The Supreme Court concluded that asserted in state interests other protecting citizens’ freedom of association “who have or personal religious objections to ho- mosexuality,” the “interest conserving resources to Romer, fight against discrimination other groups,” 517 U.S. at 1629, at S.Ct. L.Ed.2d was insufficient even Beyond rational basis review. the principle that no state may pass laws state constitutional amendments that prohib- any it all government state or local designed action to Romer, protect persons class, homosexual aas named 517 U.S. at 116 S.Ct. at nothing 134 L.Ed.2d within the language of this landmark deeply case establishes as rooted concept marriage. same-sex

Nor does Lawrence as deeply right establish rooted the to First, same-sex marriage. while the Court in that case over turned Bowers and declared unconstitutional the Texas statute on the “[the basis that law and traditions past half century] show an emerging liberty gives awareness that sub protection stantial persons adult in deciding how to conduct Lawrence, private their sex,” lives pertaining matters U.S. S.Ct. at 156 L.Ed.2d it so did appears what 579, 123 be rational basis review. 539 U.S. at 2484, 156 (“The S.Ct. L.Ed.2d 508 Texas statute furthers no legitimate state interest which can justify its intrusion into the personal individual.”) added). and private life of the (emphasis Nor did the Court expressly right that case state that the sexual intercourse between two individuals of the same-sex Lawrence, was fundamental. 539 U.S. at 123 S.Ct. at 2488, 156 (Scalia, J., L.Ed.2d 508 dissenting) (“Though there is ..., discussion of ‘fundamental proposition^],’ and ‘fundamen decisions,’ ..., tal nowhere does the Court’s opinion declare sodomy homosexual is a right’ ‘fundamental under Clause; Due Process nor it subject does the Texas law to the (strict standard of review that would be appropriate scrutiny) ”). if homosexual sodomy were right.’ ‘fundamental If the Lawrence was Court in unwilling right to declare that the was intimacy in sexual engage same sex to persons two tradition, to not disposed we are history rooted in deeply to such status intended confer that the Lawrence Court accept relationship. similar implicitly of an public recognition on the (“If Standhardt, did not view 77 at 457 Court P.3d See homosexu- securing of the bond a expression an intimate such reject any right, we must relationship to be a fundamental al confer such status on intended to notion that Court union.”). a recognition of such to secure state-sanctioned right Lawrence, Indeed, declaring in after Court Supreme inti- that forbade same-sex the Texas statute unconstitutional conduct, held that mate It not not involve minors. does present case does

[t]he who injured be or coerced or are might who persons involve easily might consent not be relationships in where situated public or prostitution. It not involve conduct refused. does give must government whether the It does not involve homosexual any relationship to recognition formal two adults The does involve seek to enter. case persons other, engaged who, full mutual consent from each with lifestyle. to homosexual in common a practices sexual private lives. respect for their petitioners are entitled their or control cannot demean their existence The State a conduct crime. destiny private their sexual by making gives the Due Process Clause liberty Their under right without right full their conduct engage them the promise “It is a of the government. of the intervention liberty which personal that there is a realm Constitution fur- enter.” The Texas statute government may justify which can its legitimate no state interest thers of the individual. personal private into the life intrusion Lawrence, 123 at 156 L.Ed.2d 539 U.S. at S.Ct. added). a not establish funda- (emphasis 508 Lawrence does holdings marriage. to same-sex Several right mental that have addressed the issue are accord. by other courts See, Standhardt, (determining at 456-57 that the 77 P.3d e.g., holding interpreted in Lawrence cannot be Supreme Court’s Wilson, marriage); F.Supp.2d provide for same-sex (“[T]he Court’s Supreme Decision Lawrence cannot be interpreted as a fundamental creating right to same-sex mar- Andersen, riage.”); P.3d at (distinguishing Lawrence grounds). on similar unwilling

We are to hold that a right to same-sex marriage has taken hold to the that it is point implicit concept liberty ordered in the deeply history rooted tradition Maryland. Glucksberg, U.S. at S.Ct.

L.Ed.2d 772. Even quick glance at the of Maryland laws indicate that long this State has regarded marriage as union man consanguinity statute, between a and a woman. The example, only marriages addresses those with degree a certain relation blood as between members of opposite sex. Family § statutory Law 2-202. The regulating scheme deal- ings between spouses refers to the in a parties terms of “married woman” and “her Family §§ husband.” Law 4-201 4-301, § Family furthermore, to 4-205. Law involves liabili- for, from, protection ties and the obligations spouse. of a The statute only addresses those liabilities as between “husband” and “wife.” only These are a few of the of examples Maryland family law statutes that recognize sex-specific when language referring to the point marital is relationship. despite that long-established presence § of Family Law of to, laws our State historically, and continue employ sex- specific language Maryland’s that reflects to the adherence traditional of understanding marriage as man between a and woman. spite the changing attitudes about what a constitutes family,”

“nuclear Congress, nearly every as well as state Nation, legislative has taken action or otherwise enacted con stitutional limiting amendments explicitly the institution of marriage to unions those between a man and a woman.67 (1996) ("In § determining 1 U.S.C.A. any means Act of Congress, ‘marriage’ only legal the word means a union between one wife, and man one as husband and 'spouse' woman and the word refers only person wife.”); opposite to a sex who is husband or Alaska I, I, IV, § § Const. art. § Const. amend. Const. art. Ark. 25; Ga. 1; I, XV, 16; Ky. § art. § Kan. Const. art. Haw. ¶¶1; 23; Const. Const. Massachusetts, every court to virtually exception theWith marriage is that same-sex issue has held considered the have either their constitutionally as fundamental protected Standhardt, 77 P.3d at 465 or the Nation as a whole. state homosexuality have many views of (“[A]lthough traditional Nation, the choice to overtime our state been recast root to taken sufficient has not marry partner a same-sex right.”); a fundamental protection as constitutional receive Lewis, diversity of this the rich (“Despite 908 A.2d at State, many of its and the goodness people, the tolerance achieving toward gays made and lesbians recent advances law, cannot find under we acceptance equality social in the deeply so rooted marriage to same-sex is right ... that it traditions, people history, and conscience Dean, at 332-33 right.”); a fundamental ranks as marriage deeply- is not summarily that same-sex (declaring (con- Baehr, tradition); at 57 852 P.2d history rooted right no mar- that there is fundamental same-sex cluding (“The Nelson, institution 191 N.W.2d riage); Baker v. as the of man and woman ... is as old marriage as a union Genesis.”); Kandu, (holding In re 315 B.R. at book marriage same-sex based on right there no fundamental that courts should cautionary Court’s statements Supreme establishing care” in a new fundamental “exercise the utmost I, XII, 15; 25; 233a; § § § Miss. Const La. Const. art. art. Const, Mich. XIII, 7; 14, 263A; I, 33; § § § art. art. Mo. art. Const, Const, Mont I, XI, 29; I, 21; § § art. art. N.D. Const, art. Const, Nev.Const. Neb. 11; II, 35; 28; XV, § § § art. Const, art. Const, Okla. Or. Const Ohio I, 32; I, 29; XV, 5a; § § § art. Tex. Const art. Const, art. Ala.Code Utah 30-1-19; 25-101; (West); § § § 308.5 Cal. Fam.Code ArizRev.Stat. 14-2-104; 45a-727a; § § Del.Code Ann. Colo.Rev.Stat. Conn. Gen.Stat. 101; 741.212; (Michie); § § § 32-201 tit. Idaho Code Fla. Stat. 595.2; 5/201, 31-11-1-1; 5/212; § § Comp. Iowa Code III. Stat. Ind.Code 701; 517.01, 517.03; 19-A, §§ §§ tit. Minn. Stat. Me.RevStat. Ann. -3; 457:1, 457:2; 37:1-1, §§ N.M. N.H. Rev. Stat. Ann. N.J. Stat. Ann. 51-1, (Michie); § §§ 51-1.2 40-1-18 N.Y. Dom. Rel. Law Stat. Ann. 1102, 1704; 15-1-1, (McKinney); §§ §§ 23 Pa. Cons.Stat. R.I. Gen. Laws 15—2—1; 15-1-2, (Law.Co-op.); § S.D. Codified S.C. Code Ann. 20-1-15 36-3-113; (Michie); Vr. Stat. Ann. tit. 25-1-1 § § Ann. Laws Tenn.Code (Michie); 20-45.2, § §§ 20-45.3 Rev.Code VaCode Ann. Wash. 8; 765.001(2), 48-2-104(c); 26.04.020(l)(c); § §§ § W. VaCode Wis. Stat 765.01; (Michie). § 20-1-101 Wyo Stat Ann interest); Hernandez, liberty 821 N.Y.S.2d 855 N.E.2d at (“The sex, right marry however, to someone of the same is rooted’; not it has ‘deeply not even been asserted until times.”); Andersen, (“That relatively recent 138 P.3d at 979 provide some to [protections laws gay persons] lesbian change occurring shows is in our society, but community standards at this time do show a societal commitment inclusion of marriage same-sex as of the part fundamental marry.”); Health, but right Goodridge see v. Dep’t Pub. (“Because 440 Mass. 798 N.E.2d review, statute does not survive rational basis we do not consider couples’] arguments [same-sex this case scrutiny.”). merits strict opinions While the of other courts in are case, the Nation regard present not conclusive with to the even when an they majority, constitute overwhelming their reasoning analysis are they instructive provide a sampling of the current climate in socio-political which we make our right determination whether the asserted is funda- mental.

We are not unmindful of the fact that the relation ships gay, lesbian, and bisexual seek persons to enter involve intimate private decisions that extend to the core of the right personal autonomy. Those decisions do not necessari ly require us or recognize the State to those formally relation ships the form of State-sanctioned marriage. That a liberty interest such as argued-for right to marry person a sex of choosing, one’s if important, even assumed be does not render automatically fundamental liberty interest. Glucksberg, U.S. at 117 S.Ct. at 138 L.Ed.2d 772; Hornbeck, (‘Whether 295 Md. at 458 A.2d at 786 claimed right is fundamental turn does not alone on the relative desirability importance or right.”). of that When dealing in the furthermore, realm of due process, we are hesitant to recognize rights, new fundamental especially when Supreme Court has either failed declined to do so. legislation “[W]here social or economic as the regulation [such involved, ... marriage] generally have [we] avoided labeling right as fundamental so as activating to avoid

315 Hornbeck, 295 of review.” scrutiny standard exacting strict stated, Supreme Court A.2d 786. As the at at Md. right to asserted an extending protection constitutional “[b]y extent, matter interest, we, place a great liberty or legislative action. We of public arena debate outside the we are care whenever ‘exercise utmost must therefore field,’ liberty ... lest the in this ground new asked break subtly transformed Due Process Clause be by the protected of Court.” of the members this preferences the policy into at 138 L.Ed.2d 117 S.Ct. U.S. Glueksberg, U.S. City Heights, darker (quoting Collins of (1992)). these 1061, 1068, 117 With 125, 112 L.Ed.2d S.Ct. of mind, light history Maryland’s of principles unions between members limiting marriage to those nearly every sex, choices coupled policy with opposite Nation, we do not find that same-sex state other country in this or the as marriage deeply is so rooted State be at this time as a fundamental regarded that it should whole right. Family Comports § Law 2-201 with

Y. of Rational Basis Review.68 Notions § Family Law 2-201 does not discrimi Because sex, on burden a fundamental significantly nate the basis suspect a classification or right, otherwise draw based criteria, rational basis review is the correct quasi-suspect review under which we consider the standard of constitutional standard, statute. Maryland marriage Under scope of discretion afforded] wide State[] [is groups affect different enacting laws which some citizens safeguard The constitutional is offended ly than others. Judge agrees appropriate Raker that rational basis review is the (Raker argument apply analysis Appellees’ standard to Article dissent, 637-38), support op. A.2d whether viewed in right couples marry in gay and lesbian should have a a claim that or, Judge Appellees, supplies an claim Raker alternate union, granted partners they should be civil domestic of relief marriage. registration, or some other relief short if only the classification grounds wholly rests on irrelevant to the achievement of the objective. State’s General [The Assembly presumed is] to have acted within their constitu- that, tional power despite the fact in practice, their laws result in some A inequality. statutory discrimination will not any be set aside if may state of facts reasonably be justify conceived to it.

McGowan, 425-26, 393; 366 U.S. at at S.Ct. L.Ed.2d (“[A] Md. Murphy, 325 at at ‘will A.2d court overturn’ the classification the varying ‘unless treatment of groups persons different is so unrelated to the achievement any of legitimate combination of purposes that can [the court] irrational.”). only conclude the [governmental] actions were Rational basis review judiciary “does authorize ‘the [not] [to] a superlegislature judge sit as or desirability wisdom legislative policy determinations made in areas neither ” affect fundamental nor rights proceed along suspect lines.’ Doe, 312, 319, 2637, 2642, Heller v. 509 U.S. 113 S.Ct. (1993) Dukes, L.Ed.2d 257 (quoting City New Orleans v. 297, 303, 2513, 2517, (1976) 427 U.S. 96 S.Ct. 49 L.Ed.2d 511 curiam)); Ass’n, (per State, Md. Aggregates Inc. v. 337 Md. (1995) (“ 658, 655 A.2d 886 do not ‘[C]ourts substitute their social and economic beliefs for the judgment of legislative bodies, ”) (citations omitted). pass who are elected to laws.’ Thus, § Law 2-201 Family presumed constitutional, is and the Appellees burden is on unconstitutionality establish the Co., Whiting-Turner statute. Contracting 304 Md. A.2d at 185 that a (holding statute reviewed under “enjoys “rational basis” test a strong presumption of constitu tionality, can only be if [and] invalidated the classification is without any reasonable is purely basis and arbitrary”). This burden requires Appellees “‘negative every conceivable might statute],’ which basis support [the whether or not the Heller, basis has a foundation on the record.” 509 U.S. at 320-21, 113 S.Ct. 125 L.Ed.2d 257 Lehnhau (quoting Co., sen v. Lake Shore Auto Parts 410 U.S. 93 S.Ct. (1973)). 1001, 1006, 35 L.Ed.2d 351 § 2-201 Family Law support offer Appellants (1) has a the State interests: primary governmental two police its maintaining promoting interest legitimate and its marriage institution over the traditional powers nature; legitimate has a State binary, opposite-sex two members between encouraging marriage interest producing sex, uniquely capable a union opposite We shall consider these marital unit. offspring within the first, whether interests, to determine necessary, order both) made in (or distinction justify either is sufficient the means fit secondly, § whether Family Law the statute. sufficiently sought by the ends fostering interest in that State’s asserted agree We the one interest. As of is a procreation legitimate governmental Court as a Supreme the rights recognized the fundamental one of is considered autonomy, procreation matter personal of Skinner, 316 important rights. the of the fundamental most 541, 1113, (“Marriage 1655 and 62 at 86 L.Ed. U.S. at S.Ct. surviv- very the existence and are fundamental to procreation Zablocki, race.”) added); 386, at 434 U.S. al of (emphasis (“It that the surprising is not 98 S.Ct. at 54 L.Ed.2d 618 level of been in same marry placed decision to has childbirth, to relating procreation, importance decisions would make family relationships.... [I]t rearing, child and with to right privacy respect a of recognize little sense to the family respect of and not with other matters life relationship enter that is foundation decision to at 43 S.Ct. at family society.”); Meyer, in our U.S. right marry, that “to (recognizing 67 L.Ed. 1042 part a bring up home children” is central establish a and Clause). light the Due protected by Process liberty importance nature of and the procreation, the fundamental Court, safeguarding an environ- placed Supreme on it continu- propagation to the and ment most conducive stable legitimate government race is interest. ance of the human a a link whether there exists sufficient question remains fostering in environment for between an interest stable goal, and means at hand used to further procreation i.e., an implicit restriction on those who to avail them- wish selves of State-sanctioned We there marriage. conclude that does exist a sufficient link. As in stated earlier this opinion, due, in marriage enjoys its fundamental status large part, procreation. Loving, its link 388 U.S. at at S.Ct. (“Marriage 18 L.Ed.2d 1010 is one of the civil ‘basic man,’ very our existence and surviv- rights of fundamental al”) added); Skinner, (emphasis 316 U.S. at S.Ct. 1113, 86 (“Marriage procreation L.Ed. 1655 are funda- race.”); mental very to the existence and survival of the Maynard, U.S. at 8 S.Ct. at L.Ed. 654 institution, is an in the (“[Marriage] maintenance of which interested, purity public its it deeply is is the founda- family society, tion of the without which there would be progress.”). neither civilization nor This link” “inextricable procreation marriage reasonably between could support marriage the definition of as between a man and a woman only, it because is that that is relationship capable produc- (advances ing of both biological offspring repro- members technologies notwithstanding). ductive of this no- Acceptance majority tion is found the clear opinions the courts Standhardt, that have considered the issue. See P.3d Loving (“Implicit predecessor is the notion opinions marriage, often linked to procreation, forged union woman.”); Dean, between one man and one 332- 653 A.2d at (holding marriage that the to is deemed right fundamental link to procreation); Singer, 522 P.2d at 1197 because of its clearly is so to the in (“[M]arriage public related interest affording a favorable for the growth environment of children say that we are unable to that is a there not rational basis upon may protection which the state limit of marriage its Ander- legal woman.”); laws to the union one and man one sen, (“But Skinner, Loving, and Za- 138 P.3d at 982-83 indicate, blocki traditionally is to marriage procreation linked and survival human race. Heterosexual couples are only who couples produce biological can offspring of Nelson, (“The Baker couple.”); 191 N.W.2d at 186 institu- marriage woman, union tion as a of man and uniquely within of children rearing involving procreation Skinner, Genesis.”) (citing book of family, as old as the is 1655). L.Ed. U.S. at S.Ct. that convincingly, in urge response, quite

Appellees to rationally govern § Family 2-201 is not related Law relationships procrea objective fostering optimal mental and under-inclusive. it is at once over-inclusive tion because may children it is overinclusive because Appellees argue that be born into same-sex alternative meth relationships through insemination, including surrogacy, artificial conception, ods of fertilization, is also under- adoption. in The statute vitro not all inclusive, Appellees, opposite-sex to because according children, to are to do so because of couples choose bear or able posit that the mar infertility Lastly, Appellees or otherwise. to the interests riage sufficiently is not linked statute couples marry will procreation allowing because same-sex in that procreation “[o]pposite-sex interests impact children into their families couples bring will continue regardless of whether same- through procreation ‘traditional’ marry.”69 permitted sex are couples dissent, Battaglia’s response Judge to the State’s assertion that it impor- marriage has interest “as an institution of transcendent an welfare,” that, posits advances in tance to social “until recent close[,] imperfect reproductive technology, there was a albeit assisted fit[,] opposite-sex marriage biological and the inherent fact between species only from sexual reproduction that of our could result union correspondence opposite-sex of a between man and woman.... marriage biological necessity more it has never been tenuous than Dissent, Judge Battaglia’s op. today.” 932 A.2d at 691. In vein, árgues the dissent that marriage phenomena reproduction and same sex are [t]he of assisted support thus so and radical that there exists no evidence far to new reproduction and assert- [between refute the asserted link the State’s importance marriage ed interest in as an “institution of transcendent far, its Thus concomitant external effects. welfare”] social favorably weighed argument so courts that have this have done under the same-sex rational basis review. The State’s contention itself, marriage organically marriage ban from the nature arises [Family accomplished by that the later codification Law and § much compelling merely society’s in "the ] 2-201 clarifies interest histor- biological family protecting progeny ic unit as a mechanism for unions,” actually promoting orderly, asserts the State interest in an arguments. There is some merit to these There appears to be a trend towards the of gradual erosion the “traditional” today’s society in to family nuclear the extent that the classic structure, family mother, father, of a consisting and children to during marriage, born them is the norm. less less record, society. present stable On the state of the I believe neither party explored depth appropriate has this in the issue to an issue of permanent, magnitude. such transcendent Dissent, (citations Judge Battaglia's op. at 932 A.2d at 692-93 such, omitted). Battaglia Judge Judge As and Chief Bell would re- mand, 8-604(d) ("If pursuant Maryland to Rule the Court concludes by affirming, that the will substantial merits of a case not be determined reversing modifying judgment, justice or that will be served permitting proceedings, may further the Court case remand the to a court”), evidentiary hearing regarding lower in order to an conduct regarding what it refers to as "the State’s unrebutted contention retaining marriage.” broad societal in interest traditional Id. ordering purposes evidentiary a remand for the of additional hearings, exercising jurisdiction express- appellate explain a Court must 8-604(d)(l). ly doing problem its Rule reasons for so. Md. with remanding present in the case lies the fact that neither the record litigants dispute nor the briefs of the a of reflect material fact of the imagined by Although Appellees argue generally kind dissent. and, by Family § the distinction made Law is 2-201 over-inclusive time, under-inclusive, they point evidentiary the same do not to an necessitating purpose evidentiary hearing conflict remand for the anof Appellees a dispute. they and resolution of factual instead assert that summary judgment by they are entitled to virtue what to of deem be a constitutionality marriage flaw fatal in the statute. accept reasoning Judge Battaglia’s If this Court were of dissent grant summary judgment, pursuant Maryland and reverse the of (a), (f) (providing summary judgment may Rule 2-501 a motion granted only genuine disputes be when there exists on the record no judgment material facts and movant is entitled to as a matter of law), essentially recognizing we illusory would be record an dispute grant summary judgment of fact fatal to the when one does exist. we This should decline do. See Haas v. Lockheed Martin 469, 478, that, Corp., (holding 396 Md. when reviewing grant summary judgement, a circuit court’s consid- ”[w]e er, novo, first, de placed genuine dispute, whether a material was fact trial, requiring thus a legally ... whether the Circuit Court was granting summary judgment.”) (citing Livesay correct v. Baltimore 1, 9, County, (2004)) added); (emphasis 384 Md. A.2d Neifert Env’t, (2006) ("In Dep’t reviewing 395 Md. A.2d grant judgment, summary independently we review the record to parties generated properly dispute determine whether material fact and, not, moving party if judgment whether entitled as a

321 2000, by the million households counted U.S. In of the 104.7 Bureau, composed million them were only 55.3 Census M. Casper, & Lynne married households. Jason Fields couple Bureau, Living Ar- America’s Families and U.S. Census P20- Population Reports, March Current rangements: (2001), http://www.census.gov/prod/2001 at 1 at available (hereinafter 2000”). “America’s Families pubs/p20-537.pdf households, only percent 24.1 were those 104.7 million Of (married with their family couples the nuclear represented children). a represented Id. 3. This number drastic own at in 1970. Id The percent 40 of all households decline from without chil- opposite-sex of married households percentage at dren, however, to 2000 ap- remained constant from 1970 in all the United States. percent households proximately 2000, therefore, married just many there were Id. As of children as in the United States without marital households of time period with marital children. The those households in furthermore, an increase births from 1970 to saw women, of children among “raising proportion unmarried Bachu, Id. Amara single (quoting living parent.” with a Bureau, Childbearing: Trends in Premarital U.S. Census (1999)). 1930-1991/., In P23-197 Population Reports, Current families single-mother there were 10 million 1970), single- 3 million in and million (up United States from 1970). 393,000 in (up from Id. 8. father families in which The are not limited to households chil- statistics Indeed, biological/genetic one or parents. dren live with both Bureau show that of the 72.1 reports from U.S. Census only percent million States in children the United family Terry Lugalia, live married home. Julia couple Bureau, Overturf, U.S. Census Children and the Households 2000, CENSR-14, (2004), In: at 8 available at They Live (hereinaf- http://www.census.gov/prod/2004pubs/censr-14.pdf ”). They ter “Children and the Households Live Four (6.1% million, thousand of the total four hundred children 38) law.”) (emphasis Livesay, (citing matter 384 Md. at 862 A.2d at added). States) children in the one or United lived with both grandpar- ents, whereas million children with other lived someone 5.9 parent. than a Brent biological/genetic Id. at See also Bennett, al., Examining et Grandmother’s House We To Go: Troxel, Harrold, Visitation, Third-Party the Future home, U. Cin. L.Rev. In 2000 and closer to (2006). Bureau, according percent the Census of all children household, Baltimore of a couple lived outside married while children percent of all lived with someone other than 25.7 biological/genetic City ranked in the five parent. top nationwide in of these categories. both Children and the In, Thus, supra, Households Live They at reasonable doubt a exists that the traditional model what constitutes family any does majority not constitute households longer.

A legislative enactment reviewed under rational basis standard of not constitutional review need be drawn with exactitude, may imperfections mathematical contain result in degree inequality. some Piscatelli v. Bd. of Comm’rs, 644-45, Liquor License 378 Md. (2003) (“[A] state does not violate the Equal Protection merely

Clause because the made classifications its laws are imperfect. basis,’ If the classification it has some ‘reasonable does not offend the Constitution because the simply classifica- tion ‘is not with in nicety made mathematical or because ”) (citations omitted); in practice it some inequality.’ results (“[A] at Whiting-Turner, 304 Md. 499 A.2d at 185 classifi- [subject cation to rational basis having review] some reason- able basis need not be made with mathematical nicety and may result in inequality”). Looking beyond some the fact that any inquiry ability actually into the of a willingness couple during to bear a child marriage would violate the fundamental Griswold, right to marital in at privacy recognized 381 U.S. 484-86, 493, at S.Ct. L.Ed.2d fundamental right marriage ensuing its benefits are conferred opposite-sex couples because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility In procreation. such wholly not acted situation, has Legislature as the long so relationship only recognition to granting in unreasonably the marital traditionally within bearing children capable economic beliefs unit, social may [our] we not “substitute Aggregates Md. bodies----” legislative judgment for the (1995); State, see also Ass’n, 655 A.2d 886 337 Md. Inc. v. 125 L.Ed.2d Heller, 113 S.Ct. 509 U.S. accept (“[C]ourts review under rational-based compelled are imperfect when there is an even generalizations a legislature’s not fail A does and ends. classification fit between means with mathemati it ‘is not made review because rational-basis inequali results some practice it nicety cal or because 471, 485, ”) Williams, 397 U.S. (quoting Dandridge ty.’ (1970)). light 1153, 1161, 25 L.Ed.2d 491 S.Ct. under rational basis Assembly owed to the General

deference § unconstitu review, Law 2-201 Family not declare we shall over-inclusive, or tional, under—or though may even it be drawn imperfectly based on create a distinction otherwise criteria.70,71 fostering procreation interest

70. Because we find that State's Family § we need not address the sustain Law sufficient alternative, circular, by Appellants based justification offered and rather power maintaining police over the social State’s interest its on the marriage. institution of dissent, closely legal reasoning Judge the Raker’s which follows 71. Harris, employed by 415, Jersey Supreme Lewis v. 188 N.J. the New Court in (1) (N.J.2006), essentially rests on two strata: 908 A.2d 196 Rights; Maryland of 24 of the Declaration Due Process Clause of Article See, e.g., Equal 24. Protection Clause embodied in Article and Md., Inc., Hospital 326 n. 299 Md. State v. Good Samaritan of (1984) ("The Maiyland does not A.2d 900 n. 7 Constitution clause; equal express equal protection concept of contain an is, however, protection 24 of the Declaration of embodied in Article Educ., Rights.”) (citing Co. Bd. 295 Md. Hornbeck v. Somerset of (1983)). 458 A.2d 758 here, Judge posits majority opinion Raker’s dissent In line with the that, initially though Maryland’s citizenry a diverse and tolerant even statutory authority Maryland precedent group, and there exists in and acceptance persons, the increasing of homosexual that evidence social right marry. Despite couples to same-sex do not have a fundamental marry, right couples to of of same-sex the absence however, a fundamental equal protec- additionally that Article 24’s dissent reasons guarantee couples tion mandates that same-sex otherwise be afforded rights currently Maryland the various and benefits available under law 651; only opposite-sex couples. op. to Dissent at A.2d at Lewis, vein, see A.2d that also at 200. the dissent concludes essentially Assembly Family the General that must either amend Law § couples marry, 2-201 to allow same-sex or create a substitute couples may enjoy rights scheme under which same-sex benefits, the same obligations, opposite-sex as well as bear the same as married couples. Judge Concurring Dissenting Opinion, op. Raker's 654; Lewis, 932 A.2d at also see for, disagree Judge We with Raker’s dissent other than the reasons body majority opinion, simple advanced in the reason that Appellees expressly any present here disavowed desire to obtain the court, proposes. Ordinarily Maryland, alternate relief she whether appellate, trial or does not fashion relief where the record reflects that parties repudiated expressly proposed to be benefitted relief. record, Appellees, "intangible protections in this cited a number marriage especially for themselves and for their One children.” such dignity recognition accompany benefit relates to the sense of that would refer, marriage Maryland. Appellees only of same-sex not to the themselves, dignity may couples that be felt the same-sex but also to children, parents their children in that the if their same-sex were able marry, proud they they would "feel of who are and where come stated, Appellee support Appellees’ from.” One motion for sum- mary judgment, legal relationship through "[t]he that sanction of [their] marriage greatly stigma the institution of civil would diminish the that bear, daughters simply parents [their] will otherwise because their are a couple.” Appellee dignitary same-sex Another noted that she "suffer[s] effectively requires harm on account of the fact that the law [her] relationship choose between life in [her] [her] [her with partner], simply [they] recognized spouses.” are because iterated, Appellees support summary Several of their motion for judgment, grant marriage actually recog- that the of benefits of without nizing marriage only perpetuate dignitary same-sex would harm they experience. now claim to Charles Blackburn wrote that “anything marriage couples perpetu- short of civil for same-sex would citizenship gay ate second-class for lesbian and families. While we respect religious organizations perform the freedom of to decline to religious wedding couples, ceremonies for same-sex we believe that religious prevent recognizing such freedom cannot our state from our that, relationship. undermining We believe rather than the institution marriage, a commitment such as honors We our[s] it. believe that we, too, dignity respect marriage are entitled to the bestows.” partner Steven Palmer "[s]till wrote that he and his risk discrimination stigmatizing message fostered [their] about the worth of relation- ship government community by excluding that [their] [the] sends to marriage.” Finally, Wojahn [them] from Patrick "[m]ost wrote that all, partner] relationship enjoy and his [he [their] wish for that same recognition legal recognition relationships social as well as as the peers. relationship [their] [Their] heterosexual can attain this level of respect only through marriage.” the institution Conclusion

VI. abridge § 2-201 does not Family Because Law (as that marriage right), we understand right fundamental Article of sex in violation of does not discriminate on the basis implicate suspect quasi- not otherwise a and does class, to rational subject statute is suspect marriage such, a of constitu strong presumption review. As it carries review, ‘plausible there are Under rational tionality. “[w]here action, ‘our is at Assembly’s] inquiry reasons’ for General [the judicial paradigm an end.’ ... basis [Rationale review] that, absent some rea presumes restraint. ‘The Constitution will eventu antipathy, improvident son to infer even decisions democratic and that ally process be rectified how judicial generally intervention is unwarranted no matter think a branch has acted.” F.C.C. v. unwisely may political we Communications, Inc., 307, 313-14, Beach U.S. S.Ct. (1993) (citations omitted). 2096, 2101, 124 L.Ed.2d legitimate fostering that interests declaring State’s procreation encouraging family traditional structure reasonably which children are born are related to the means employed by Family opinion § Law our should no imply Assembly may means be read to that the General grant recognize persons for homosexual civil unions or the right marry person of the same sex. THE BALTI-

JUDGMENT OF CIRCUIT FOR COURT REVERSED; VACATED; MORE CITY RE- STAY CASE MANDED THAT TO COURT WITH DIRECTIONS TO DECLARE CONSTITUTIONAL THE AT STATUTE IS- AND DENY RELIEF SUE TO INJUNCTIVE TO APPEL- TO BE PAID BY LEES. COSTS APPELLEES. Thus, notwithstanding Appellees' the statements of counsel at oral argument Family couples § Law 2-201 same-sex denies “full them, guaranteed citizenship constitutionally that is no less than all added), Marylanders,” (emphasis Appellees appear other to have disa-

vowed, impliedly expressly, remedy Judge both Raker alternate attempts upon Appellees would offer. Her dissent to bestow the bene- marriage, actually granting right marry, fits of without them the proposing exactly Appellees present expressly that which in the case litigation. chose not to seek in this

RAKER, J., in Part and Dissents. Concurs BATTAGLIA, J., BELL, C.J., Dissent. and RAKER, J., dissenting, and in which concurring part BELL, C.J., joins part: Appellees assert respectfully

I concur dissent. protec- and their children from the Maryland excludes them they whom marriage solely person tions to because unique to Appellees right of the same sex. seek the person love is a that a civil license entitles understanding marriage marry, of economic and social array married to a vast benefits couples other intan- rights marriage—as well as privileges—the rights view entitlement to the my benefits. Because gible issues, I are right marry and the to distinct marriage analyze separately. them analysis Supreme

I the same that the Court of adopt would Harris, 188 N.J. Jersey New embraced Lewis officials, (2006), in sued state couples A.2d 196 which same-sex Jersey’s banning a declaration that New laws seeking both marriage equal protection guarantees violated the same-sex relief com Jersey injunctive Constitution as well as New them licenses. The New grant marriage the State to pelling in the case had legal noted that the battle been Jersey Court right marry. issue—the to waged overarching over one Id. at 206. rejected “all-or-nothing” approach. court this Instead, marry, distinguished right the court between hand, marriage and the on the other hand. rights on the one appellees’ equal protec Id. the court considered Specifically, of two whether committed components: tion claim to consist right have a constitutional to the benefits couples same-sex and, to married heterosexual privileges couples, afforded so, they right if have a constitutional to have their whether I recognized by marriage. the name view relationship i.e., way, in the same the issue instant case before this Court I having components.1 two would hold that presented analyzes appellees right majority whether have a constitutional 1. The marriage, relationships recognized by their the name but fails to have couples same-sex benefits to committed denying rights and couples violates married heterosexual given that are Article guarantee equal protection I Jersey, As the State of New Rights.2 Declaration did mandate, with this constitutional comply would find that “to statutes marriage either amend the Legislature must statutory struc parallel or create couples include same-sex terms, for, rights ture, equal will provide which borne mar enjoyed obligations and burdens and benefits Harris, A.2d at 200. couples.” ried reached the same conclusion Supreme The Vermont Court State, Baker v. 194, 170 Vt. approach. and a similar adopted (and (1999). Jersey plaintiffs, Like the New A.2d 864 injunctive plaintiffs “sought Maryland plaintiffs), Vermont license, designed marriage relief to secure a declaratory and benefits, rights appellees consider whether are entitled to the same couples. separately privileges I write afforded to married heterosexual only to address this latter issue. Rights "[t]hat 24 of Declaration of states no man Article freehold, ought imprisoned his liberties or to be taken or or disseized of manner, outlawed, exiled, or, any destroyed, privileges, or or or life, liberty judgment deprived property, or but of his of his peers, Equal Clause of the the Law of the land.” The Protection provides of United States Constitution that Fourteenth Amendment any person jurisdiction equal "deny within its no State shall protection Although 24 does not contain an of the laws.” Article clause, express equal protection this Court has held that the same requirement concept equal process due of treatment is embodied in the Rights. Regents, 24 298, 312-13, Frankel v. Board of Article Declaration (2000) (quoting Renko v. 361 Md. 761 A.2d McLean, 464, 482, (1997)). 697 A.2d United States 346 Md. Equal Supreme applying Protection Clause of the Court cases applying binding Fourteenth Amendment are on this Court when interpret apply persuasive undertake to clause and are when we Rights. 761 A.2d at 332. Article 24 of the Declaration of Id. however, independent, provision We is and a viola- reiterate each See, necessarily e.g., tion of one is not a violation of the other. Dua v. Comcast, 604, 621, (2002). It is well 370 Md. accepted may apply stringent that this Court a more standard of review Maryland's equivalent Equal as a matter of state law under to the Creamery Company, Protection Clause. See Minnesota v. Clover Leaf n. 101 S.Ct. 722-23 n. 66 L.Ed.2d 659 U.S. 461-63 (1981). primarily upon their claims and here have focused arguments statutory official exclusion from the bene- consequences fits, under security marriage incident protections, law.” Id. at 886. Although the Vermont decision is Vermont the Vermont upon based the Common Benefits Clause of Constitution, remedy deprivation the court-ordered for the eminent rights protected by the State Constitution makes sense. The court held as follows: constitutionally required

“We hold that the State is couples protec- extend to same-sex the common benefits and marriage that flow from under Vermont law. Wheth- tions the form of inclusion within the ultimately er this takes marriage parallel partner- laws themselves or a ‘domestic alternative, rests system equivalent statutory or some ship’ chosen, however, Legislature. system with the Whatever all imperative must conform with the constitutional to afford benefit, protection, security the common Vermonters the law.”

Baker, 744 A.2d at 867.3

I. Maryland’s equal protection jurispru- Under traditional dence, classification which does not discriminate legislative Legislature could and should 3. The Vermont court made clear that appropriate remedy, stating fashion the as follows: I, only plaintiffs Chapter "We that are entitled under Article hold protec- to obtain the same benefits and of the Vermont Constitution opposite-sex couples. We tions afforded Vermont law to married infringe upon prerogatives Legislature purport of the to do not mandate, addressing appropriate this craft an means constitutional other than to note that the record here refers to a number of potentially statutory jurisdictions. constitutional schemes from other typically partnership’ are referred to as 'domestic These include what acts, generally ‘registered partnership’ an alterna- or which establish legal marriage couples, impose tive status to for same-sex similar limitations, parallel licensing requirements or formal and create scheme, registration rights and extend all or most of the same obligations partners. Report, provided by the law married See (Appendix Hawaii Commission on Sexual Orientation and the Law D-1B) (1995) (recommending Comprehen- enactment of 'Universal Partnership equivalent licensing sive Domestic Act’ to establish right, fundamental sex, significantly burden the basis of on quasi- suspect a classification based draw or otherwise ration if classification is may be sustained suspect criteria See, e.g., interest. legitimate governmental to a ally related 597, 603, 585-86 State, 510 A.2d 306 Md. v. Broadwater Ctr., 473 (1986) Living v. Cleburne Cleburne (quoting City of (1985)); L.Ed.2d 313 432, 440, 3254 87 105 S.Ct. U.S. Perez, 691, 716-17, A.2d v. 394 Md. Ehrlich I (2006). analysis, agree majority’s consideration reviewing Family for standard proper rational basis is the § Law 2-201. to rational basis notes, subject a statute majority

As the the classification is unless upheld generally review will be objective.” of the State’s “wholly irrelevant to the achievement 683, 707, Waldron, 289 Md. Attorney v. General 420, 425, (1981) 366 U.S. Maryland, McGowan (quoting (1961) 1101, 1104, and McDonald v. Bd. 6 L.Ed.2d 393 81 S.Ct. 1404, 1408, 22 Election, 802, 809, L.Ed.2d 394 U.S. 89 S.Ct. (1969)). Furthermore, subject to rational a classification as the state inequality long result in some so may basis review justify conceivable “state of facts” produce any can rights upon partners 'the same eligibility and confer domestic scheme spouses obligations law are conferred on in a under the Christensen, added); (emphasis marriage relationship') C. Not If Family 1699, Marriage? Securing Gay Values a 'Simu- On and Lesbian (1998) (dis- Marriage’, 1734-45 66 Fordham L.Rev. lacrum of acts); foreign partnership cussing domestic A. various domestic and Friedman, Right Privacy: Abandoning Marriage Same-Sex and the Canonical, Marriage, Scriptural, and Natural Law Based Definitions of (1992) (reprinting Denmark’s 35 How. L.J. 217-20 n. 237 Note, Act’); generally, A 'Registered Partnership see More Perfect Partnership Legal Analysis Ordi- Union: A and Social Domestic nances, (1992) (discussing local domestic 92 Colum. L.Rev. 1164 Pedersen, laws); Marriage and partnership M. Denmark: Homosexual Divorce, Regarding 30 J. Fam. L. 289 Separation New Rules (1992) Registered Partnership (discussing amendments to Denmark’s Roth, Act); Norwegian Registered Partnership Act on M. Norway’s (discussing Couples, Homosexual 35 J. Fam. L. 467 Couples). Registered Partnership We do not Act on for Homosexual acts, any specifically one or all of the referenced intend to endorse particularly significant omitted from several of in view of the benefits 864, State, (1999). 170 Vt. 744 A.2d 886-87 the laws.” Baker v. 330 Whiting-Turner Contracting Co. v. Coupard,

distinction. 304 v. 340, 352, 178, 185 (1985); City New Orleans Md. Dukes, 297, 303, 2513, 2517, 427 96 S.Ct. 49 L.Ed.2d 511 U.S. (1976). however, incorrect,

It to presume rational basis all, effectively particularly review is no review at where vital are affected personal by statutory interests classification.4 Frankel, down, willingness the Court noted its to strike review, any under rational basis laws that lack reasonable Frankel, 298, 315, justification.5 Md. 761 361 A.2d 333 (2000). We stated as follows: carefully

‘We have not hesitated to examine a statute and if declare it invalid we .cannot discern a rational basis for its vitality ‘The of this equal protection

enactment. State’s which, doctrine is demonstrated our although decisions the deferential standard embodied in rational applying test, many basis have nevertheless invalidated legislative impinged privileges classifications which cherished 4. Professor Cass Sunstein has documented that the United States Su- departed preme Court has from the deferential rational basis standard Sunstein, defining scrutiny. without a new level of See Cass Foreword: Undecided, (1996). Leaving Things 110 Harv. L.Rev. 59-61 These Evans, 620, 635, v. 116 cases include Romer 29, U.S. S.Ct. 1628- (1996) (holding 134 L.Ed.2d 855 Colorado statute that banned state forbidding or local laws sexual-orientation discrimination was not ra- tionally legitimate governmental objective), City related to Cleburne v. Center, 432, 450, 3249, 3259-60, Living Cleburne 473 U.S. 105 S.Ct. review, (applying rational L.Ed.2d 313 basis Court invalidated zoning against mentally discrimination retarded as based on "irrational Moreno, prejudice”), Dep't Agriculture and United States U.S. 528, 534, 2821, 2825-26, (1973) (invalidating S.Ct. L.Ed.2d 782 regulation nonfamily that excluded members of household from food decisions, stamp program). employed In each these the Court contextual, highly analysis balancing private rights pub- fact-based ostensibly applying lic even interests while minimal rational basis review. that, regulations imposed 5. We noted "such invalid have often econom- burdens, tending Maryland ic in a manner to favor some residents over Frankel, other Md. at residents." 761 A.2d 324 State, omitted) (quotations (citing Maryland Aggregatesv. 337 Md. (1995)). 672 n. A.2d n. 9

331 ”6 our citizens.’ v. Baltimore Verzi

Id., 315, (quoting A.2d at 333 761 (1994)). 419, 967, 971 411, A.2d 635 County, 333 Md. classification legislative a closely reviewed we have practice, Mary groups interests of distinct important personal when distributes legislation or when are at stake land residents between residents unequally and burdens benefits mind, I jurisprudence equal protection State.7 With this benefits, to the same are entitled appellees whether turn to couples. to married heterosexual afforded privileges rights II. 2-201, only law, § entitles Family Law marriage

Maryland’s marriage. Md.Code rights couples to opposite-sex Law Article. As Family § 2-201 of the (1984, RepLVol.), 2006 2472, 2485, 558, 580, Texas, 123 S.Ct. 539 U.S. Lawrence v. 6. See J., ("We (2003) (O’Connor, concurring) have been most L.Ed.2d 508 hold a law unconstitutional likely apply basis review to rational where, here, challenged Equal Clause Protection under the relationships.”). personal legislation inhibits down, Frankel, 298, See, (striking 761 A.2d 324 e.g., 361 Md. review, discriminating against certain in- policy tuition basis rational 411, residents); County, 635 A.2d 967 333 Md. v. Baltimore state Verzi review, down, (1994) ordinance discriminat- (striking on rational basis county); place in the operators without a of business ing against tow (1981) Waldron, (striking Md. 426 A.2d Attorney General review, down, discriminating against retired statute on rational basis County, George’s 331 Md. practitioners); v. Prince judge Kirsch review, down, zoning (1993) ordi- (striking basis on rational A.2d 372 tenants); university Md. St. Bd. discriminating against student nance down, (1973) Kuhn, (striking A.2d 216 270 Md. Barber Ex. v. review, against cosmetologists); discriminating basis statute on rational (1971) Dir., Aff., 276 A.2d 200 Chesapeake Bay 261 Md. Bruce v. review, down, discriminating against (striking basis statute on rational City Ctr. oystermen); Balto. v. Charles out-of-county crabbers and down, (1970) (striking on rational Parking, 259 Md. review, painted signs); Coal discriminating against Md. ordinance basis (1949) Mines, (striking 69 A.2d 471 193 Md. Etc. Co. v. Bureau of review, against down, discriminating mining statute on rational basis Jackson, counties); 183 A. 534 170 Md. non-exempt Dasch v. review, down, discriminating (1936) (striking basis statute on rational Johnson, 143 Md. 123 A. against paper-hangers); de Grace v. Havre review, down, ordinance dis- (striking basis an on rational hire). out-of-city criminating against automobiles for § result of the classification in similarly two situated people classes of are established: committed couples same-sex opposite-sex and married couples. State asserts that the classification is rationally legitimate governmental related to a in encouraging interest marriage between two members of the opposite sex as a means of fostering stable environment for procreation.8 hand, on the other Appellees, assert that the distinction between same-sex couples opposite-sex couples not rationally does further the State’s interest child welfare.

A. Current Laws—Rights and Limits In order Maryland’s to determine whether marriage law is rationally interest, legitimate governmental related to a it is necessary first to review Maryland statutory, how the regula- tory, and rights case law has evolved to expand gays It highly significant State, lesbians. is that throughout this ordinances, based on statutes discrimination against gays and lesbians is or acceptable. outline, not tolerated As I will discrimination on the basis of sexual against orientation is law in this State. This context is important for analyzing whether the State’s proffered legitimate, interest is whether the fit sufficiently State’s means the ends sought by the statute. Rights

1. decade, the past Maryland Over sought has to eliminate discrimination based on sexual orientation and to reduce the disparate people orientation, treatment of based on sexual in particularly law, law, the areas of family criminal and anti- discrimination legislation. mid-1990’s, in

Starting Maryland appellate courts re- jected the notion that homosexual individuals should be treat- reiterate, partners 8. To I do not address whether same-sex have the right relationship by marriage to define their the name of or whether legitimate the State has a protecting interest the traditional institu- dissent, marriage by analyze tion of solely name. In this I whether couples same-sex rights marriage are entitled to the same that are provided Maryland partners. to heterosexual determining when differently than heterosexual individuals ed rejected courts have parental rights. Specifically, rights unfit that a is for visitation because person the notion Boswell, v. 352 Md. her sexual orientation. Boswell his or North, (1998); Md. 237-238, North 721 A.2d (1994). North, 1, 15-17, 1032-33 App. banc, that the trial court en held Special Appeals, Court of overnight denying a homosexual father its discretion abused focusing expos- on the harms of rights by perceived visitation focusing lifestyle homosexual instead of his children to his ing visitation was the best question on the whether proper 15-17, North, Md.App. at of his children. interests that the subsequently 1032-33. This Court has held A.2d at whose visitation parent of the non-custodial preference sexual relevant, and that restrictions being challenged is is reviewed the best interests of should be under visitation 236-238, Boswell, 352 Md. at 721 A.2d at child standard. Indeed, that a “only we noted in Boswell that the relevance in the of a parent’s lifestyle sexual conduct or has context of this is where that conduct proceeding type visitation to be detrimental the children’s lifestyle clearly shown A.2d well-being.” Id. physical emotional and/or at 678. orien-

Maryland appellate courts have considered sexual party custody rights. a factor third determining tation as when women, the custody two dispute a between homosexual required held that the trial court was Special Appeals Court jurisdiction brought a exercise over child visitation lawsuit to biological partner mother’s former under the by the same-sex Act, even if Custody Child Jurisdiction Tennessee Uniform Frederick, more forum. v. was the convenient Gestl (2000). 216, 244-45, 1087, 754 A.2d 1102-03 Md.App. biological was partner, court noted that the former who not a standing an action in Tennessee parent, bring would lack would in finding parental custody absent a that result substan- child, law the third tial harm to whereas entitled show party opportunity exceptional an that circumstances grant that make it the child’s best interests to existed would her custody.9 Id. The sexual orientation of the individuals raising custody claim was not a relevant factor court’s holding—the former partner same-sex was viewed as any other party third who a had role in the child’s life and See, exceptional could show e.g., v. circumstances. Shurupoff Vockroth, (2003) 372 Md. 814 A.2d 543 (affirming grant of Anderson, Dietrich v. custody to grandparents); 185 Md. (1945) 43 A.2d 186 (denying father’s petition for custody when child had been with living parents foster years); for five v. Sharp, Pastore 314, 322, 81 Md.App. 567 A.2d denied, (1989), cert. (1990) 319 Md. 572 A.2d 182 (finding exceptional circumstances when child had been in custody of party third for two of his five years, child had become at tached to party, third and his future would lack stability and if certainty placed with Newkirk v. mother); the natural Newkirk, 588, 595, 73 Md.App. 535 A.2d 950-51 (finding exceptional circumstances awarding custody of half-brother, teenage father). children to rather than natural Although the issue of same-sex adoption has not been Court, addressed this Maryland law does not appear recently This Court stated private parties "where third are attempting gain custody parents, children from their natural trial court must first find parents that both natural are unfit to have custody extraordinary of their children or that circumstances exist which significantly are remaining detrimental to the child in the custo- dy parent parents, or before a trial court should consider the " ‘best interests the child’ standard deciding as a means of dispúte.” 320, 325, Dougherty, McDermott v. 385 Md. 869 A.2d (2005); Vockroth, 639, 662, Shurupoff see also 372 Md. (2003) ("[W]hen dispute parent is between a and a third party, presumed it is that the parental child's best interest lies with custody. unfit, If there showing parent is sufficient however, exceptional or that circumstances exist which would make parental custody interest, detrimental to the presump- child's best custody for, tion is given rebutted and parent, should not be to the situation, parental either custody possibly could not be in the child's long best interest. So as the best interest of the child remains the alternative, definitive any standard and there is reasonable it defies logic place both and common sense to custody anyone, a child in the including parent, person when either that custody is unfit to have action, circumstances, exceptional such because of would be detrimen- interest.”) tal to the child's best language adoptions. plain The couple preclude same-sex to Md. any adopt.10 permits § 5-3A-29 adult Family Law Law Family § (1984, 5-3A-29 of Repl.Vol.), Code distinguish not Thus, appear does the statute Article. homosexuals or same-sex by of children adoption between may adopt, relationship in a same-sex Individuals couples.11 marry under are not allowed currently they though even an adult law, requirement is no because there (1984, 2006 married. Md.Code seeking adopt a child be 5-349(b) adoption may for (stating petition that a § ReplVol.), or petitioner single is “solely because not be denied unmarried.”). adoptions single-person In traditional all parents or two new adopted one adoptions, a child is Mary are terminated. relationships parents with prior legal where a child “second-parent adoptions,” recognizes also land by a without sever adopted parent one is second parent with Id. § 5- relationship.12 prior-existing parental ing adoption specifically statutory requirements do not address for Family of the Article of the Section 5-3A-29 Law sexual orientation. Maryland requirements Code forth the follows: sets (a) Age—Any may adoption this petition a court for an under adult subtitle. (b) petition period petitioner may placement—A Minimum placement agency days adoption a or more after a child of child petitioner. places child with married, status—(1) (c) petitioner is If a under this section Marital petition petitioner’s join spouse: spouse in the unless the the (1) shall petitioner gives separated is under a circumstance that from divorce; petitioner or ground a or for annulment (ii) competent join petition. is in the not (2) entry petitioner changes a final If status of a before the marital order, petitioner petition accordingly. shall amend the (1984, § Repl.Vol.), Family Law Article. Md.Code 5-3A-29 prohibit adoptions by gays expressly and lesbians. See 11. Other states 2005) ("No 63.042(3) (West eligible adopt person § to homosexual.”); Fla.Stat.Ann. may person adopt if that is a Miss. under this statute (2004 93-17-3(5) ("Adoption by Supp.2006) couples § & Code Ann. 78-30-9(3)(a) prohibited.”); § gender the same Ann. Utah Code ("The (2002) Legislature specifically it is in a child’s best finds that persons cohabiting a adopted person who interest to be are binding marriage relationship legally under the that is not valid and state.”). laws this M.A.H., 95-179001/CAD, 2 & No. MFLM 12. See In re Petition of D.L.G. (Cir. 1996). According City, Supp.21 Ct. June to www. Balt. 336

331(b)(2) (adoption prior without termination of parental rights). Maryland’s trial granted courts have same-sex cou ples “second-parent adoptions” and have noted that such adoptions are the best interests child. See In re M.A.H., 95-179001/CAD, Petition D.L.G. & No. 2 MFLM (1997) (Cir. Supp. 21 City, 1996); Ct. Balt. June Letter Kathryn Rowe, from Att’y Gen., M. Assistant Office of the Att’y Gen., Grosfeld, Sharon Delegate, Maryland Gen. As (June 2000). Thus, semb. sexual orientation is not a factor adoption proceedings Maryland, and the children adopted couples same-sex are treated under Maryland law in the way same as children adopted a heterosexual or married couple.

Maryland has to protect gays acted and lesbians in area of criminal law. The Assembly Mary- General has amended land’s hate crime prohibit statutes to committing upon crime or persons property because of sexual orientation. See (2002, §§ Md.Code 2006 10-301 Cum.Supp.), to 10-306 of the Criminal Law Article.

Maryland has addressed the decriminalization sexual acts both for heterosexual and homosexual couples. In v. Schochet State, (1990), 320 Md. this Court held that Maryland’s criminalizing statute “unnatural or perverted sexu practices” al private, consensual, did not encompass noncom mercial, heterosexual activity between adults.13 See Md.Code (1957, 27, § Repl.Vol.), Art. a Maryland circuit court extended the ruling Schochet to hold that thetaskforce.org, Maryland is of 15 one states where trial have courts granted "second-parent adoptions.” Adoption Second-Parent (2007), U.S. http://www.thetaskforce.org/downloads/reports/issue_naaps/ 2nd_parent_adoption_5_07_color.pdf. Only provide three sec- states ond-parent adoptions by 45a-724(3) (2005); statute. See Conn. Gen.Stat. 15A, (2002); 1-102(b) § tit. 2007 Colo. Sess. Laws 837.

Vt.Stat.Ann. jury 13. A had participating convicted Schochet of in the unnatural or (1957, perverted practice sexual fellatio under Md.Code Vol.), State, Rep. 714, 718, § Art. 27 554. Schochet v. 320 Md. (1990). directly A.2d did Schochet not address homosexual acts. See id. statute, § did practices” sexual perverted “unnatural or noncommercial, consensual, heterosexual encompass not Glendening, No. See Williams homosexual activity. (Md.Cir.Ct. 98036031/CL-1059, WL Oct. Mary 1998). State of noting It defendant is worth so as § 554 should be construed argued that specifically land consensual, homosexu non-commercial private, apply to an interpretation “gives rise activity any other al because held Id. The Circuit Court *6. equal question.” protection equal be ... that there would an be doubted cannot “[i]t com acts, not criminal when if considered protection violation when could be couple, prosecuted mitted a heterosexual is simply There no basis couple. a homosexual practiced by Id. at *7. Thus, years prior four to the for the distinction.” Texas, in Lawrence v. U.S. Supreme Court’s decision U.S. (2003), 2472, which invalidated 558, 123 156 L.Ed.2d S.Ct. law, courts and execu sodomy Maryland’s Texas’ homosexual consensual, private, already had determined tive branch non-criminal.15 non-commercial sex is on prohibits discrimination based Maryland policy public accommodation, housing, em- public sexual orientation in Act, Anti-discrimination Laws ployment. See Md. Act of 2001 bans discrimi- 340. The Anti-discrimination Chap. orientation, defined as “the identifica- based on sexual nation Williams, opined Interestingly, although has on this Court not Attorney to Maryland General issued an Advice Letter Office that, 29, “although Delegate stating Hecht on October Sue decision, likely Appeals the Court of would Williams a circuit court Letters, Advice and Legislation conclusion.” See Advice reach same General, Attorney October-December Office of Quarterly News, http://www.oag.state.md.us/Opinions/news/99- at available 4.htm. reports Union that The Office of 15. The American Civil Liberties General, signed January Attorney a consent decree on Glendening, agreed appeal Williams No. both 98036031/CL- (Md.Cir.Ct. 1998) and not enforce 1998 WL 965992 Oct. ACLU, Maryland’s sodomy with statute. See Historic Settlement Books, (1991), Sodomy Maryland of its Laws From the Clears Last Cal http://aclu.org/lgbt/discrim/11991prs19990119.html; see also Scott Emotions, vert, Gays Up Ruling Stirs June 1A. on Sun, Balt. of an tion individual as to male or homosexuality, female heterosexuality, bisexuality.”16 it, or Id. The Act states that “may not be construed to or authorize validate a marriage between two individuals the same-sex” it “may not be construed require prohibit or an employer offer health insurance benefits to unmarried domestic partners,” but Act as a firmly whole establishes that Maryland’s public policy prohibits adverse treatment based on sexual orientation. Id.

There are a multitude other regula state-wide laws and tions that prohibit discrimination based on sexual orientation in a variety workers, It categories. is unlawful for social judges, Washington Commission, and the Sanitary Suburban example, to discriminate based sexual orientation. Md. Vol, (1981, 2005 Repl. § Code 2006 Cum.Supp.), 19-311 of the Occupations Article; Health and Md. Rule 3A 16-813 Canon (“A judge perform judicial shall the duties of ... office impartially, having manifesting and without preju bias or dice, bias or including prejudice based on ... sexual orienta ...”); (1957, Repl. Vol), tion. Md.Code § Art. 1-107. regulated has several other areas further goal of sexual orientation equality.17 twenty-one jurisdictions is one of passed that sexual have Thetaskforce.org, orientation laws. nondiscrimination See State Non- (2007), http://www.thetaskforce.or^ discrimination Laws in the U.S. downloads/reports/issue_maps/non_discrimination_07_07_color.pdf. California, Colorado, Connecticut, jurisdictions The other are: District Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, of Mexico, York, Nevada, Hampshire, Jersey, Oregon, New New New New Island, Wisconsin, Washington, Rhode Vermont. Care, Old, New, Gregory Something 17. See Something Something Bor- rowed, Something Long Overdue: The Evolution a "Sexual Orienta- of Legal System Maryland tion-Blind” Recognition in and the Same-Sex of ("Md.Code Marriage, (2006) Regs. Balt. L.Rev. 73 at n. Ill U. 01.01.1995.19(I)(A)(11) (executive (2004) equal order to establish an employment opportunity program government per- for state to ensure [sjexual orientation”); regard sonnel actions taken ... "without id. 01.04.04.04(B)(7) (2004) (requiring the board of directors of Residential Programs programs Child Care that ensure such do not discriminate orientation); 05.04.11.18(A) (2005) on the basis (prohibit- of sexual id. ing by sponsors sexual orientation discrimination the or contractors Special Housing 05.05.02.14(A) (2005) Opportunities Program); id. Multi-Family the discrimination in (prohibiting orientation sexual id, 05.17.01.10(A) (2005) Program); Financing Flousing Revenue Bond by sponsors the Com- discrimination (prohibiting orientation sexual 07.03.03.07(I)(9)(b) (2004) (deeming quit- munity Legacy Program); id. good cause ting of orientation discrimination joba because sexual Program); id. Family Investment purposes of for (2004) (same 07.03.08.02(B)(1)(h) Emergency to Families Assistance (2004) (same 07.03.16.08(D)(2) Refugee program); id. with Children 07.05.03.09(A)(2) (2004) (prohibiting program); id. Cash Assistance application because placement agencies denying an private from child orientation); id. applicant’s adoptive or child’s sexual of (2004) 07.05.03.15(C)(2) delay place- (prohibiting the denial of or parent adoptive of or child's adoptive because of an child ment 10.18.06.03(A)(6) (2004) orientation); (requiring Maryland id. sexual Program providers provide without Drug services AIDS Assistance (2004) orientation); 10.26.03.03(D)(5) (prohibiting regard id. to sexual Acupuncture discriminating on the basis of the Board of from licensees orientation); 10.34.10.06(A)(1)(2004) pharma- (prohibiting id. of sexual orientation); id. discriminating on of sexual from the basis cists 10.41.02.04(E) (2005) of of Examiners (prohibiting licensees the Board Dispensers, Speech-Language Pathol- Audiologists, Hearing Aid orientation); ogists discriminating on of id. from the basis sexual (2005) 10.42.03.03(B)(5) (prohibiting from dis- licensed social workers orientation); 10.43.14.03(D)(5) criminating id. the basis of sexual on (2005) chiropractic chiropractors registered (prohibiting licensed discriminating Chiropractic Examiners from assistants of the Board of orientation); 10.43.18.03(D)(5) (2005) (prohib- id. on the basis of sexual Chiropractic massage therapists iting of the Board of Examin- licensed orientation); id. discriminating on of sexual ers from the basis 10.46.02.01(A)(1)(2005) Occupa- (prohibiting the Board of licensees of discriminating Therapy the basis sexual Practice from on tional orientation); 10.47.01.07(C) (2005) (prohibiting program adminis- id. Drug discrimi- Abuse Administration from tered under Alcohol orientation); 10.51.04.01(C)(2)(x) nating sexual id. on basis of (2005) providers Maryland Primary Care discrimi- (prohibiting from 10.53.01.01(D)(5) (2005) orientation); nating id. on the basis of sexual discriminating (prohibiting orientation); electrologist on the basis sexual an from (2005) 10.58.03.05(A)(2)(b) (prohibiting a counselor id. therapist or licensed the Board Professional Counselors certified orientation); Therapists discriminating on the basis of sexual from (2005) 11.02.04.02(A) (mandating departmental actions id. Department Transportation the basis of sexual not discriminate on (2005) orientation); (mandating proposals id. 11.07.06.13 ©sub- Transportation Partnership Program may mitted to the Public-Private orientation); subjected basis of sexual not be to discrimination 11.15.29.02(E)(6) (permitting rejection of vehicle motor id. "[cjommunicates message any registration plates kind which orientation); (2005) (guaranteeing a about” sexual id. 13A.01.04.03 safe, adequate, environment for stu- and harassment-free educational regard Maryland’s public dents without to sexual orientation in Many Marylanders are similarly and further protected by county or municipal County, laws. Howard George’s Prince County, City, Montgomery Baltimore County, and Anne that, County form, Arundel have ordinances pro- some hibit sexual orientation discrimination. Howard County (2007) § Code 12.200 (prohibiting discrimination based on § sexual orientation Id. 12.207 generally); hous- (prohibiting ing discrimination); § Id. 12.208 (prohibiting employment discrimination); § Id. (prohibiting 12.209 discrimination § law enforcement personnel); Id. 12.210 (prohibiting public discrimination); § accommodation 12.211 Id. fi- (prohibiting discrimination); § nancing Id. (prohibiting 19.513 discrimi- areas”); nation in use “open Prince space George’s (2003) County § Code 2-210 (prohibiting housing discrimi- nation); § Id. 2-231.01 (prohibiting commercial real estate discrimination); § (prohibiting Id. 5A-117 cable service dis- crimination); § Id. 10A-122 (prohibiting discrimination in contracts); § award of Id. 16-101 (prohibiting discrimina- tion based on personnel sexual orientation system of Baltimore County); City § Code art. 3-1 (pro- discrimination); hibiting employment § Id. 3-2 (prohibiting discrimination); public accommodations § Id. 3-3 (prohibit- discrimination); education ing § Id. (prohibiting 3-4 health discrimination); agency § welfare Id. (prohibiting 3-5 discrimination); housing 5, § Id. art. 31-3 (providing for an annual review of providers licensed medical service to certi- fy that do they deny service on the basis of sexual or- ientation); § Id. art. 23-2 (providing for the tracking hate orientation); crimes motivated the victim’s sexual schools); 14.27.02.03(B) (2004) id. (calling implementation for the equal employment opportunity program Maryland an in the Environ- policies mental Service to administer the human provi- resources discriminating .orientation); sions without on the basis of sexual id. 14.29.04.09(C)(1) (2004) (prohibiting borrowers from Heritage Program discriminating Areas Loan from on the basis of orientation); 14.30.04.04(B)(3)(e)(i) (2004) (requiring sexual id. election organizations

petitions employee Higher for the State Education certify Labor they accept Relations Board members without (2004); § 8A-15 (pro- § 27-1 Code Id. County Montgomery discrimination); § (prohibit- Id. 27-11 hibiting cable service § discrimination); Id. 27-12 public accommodations ing discrimination); § (prohibit- Id. 27-16 housing (prohibiting discrimination); § Id. 27-19 real estate commercial ing discrimination); § 27-22 (pro- Id. employment (prohibiting D, intimidation); through app. Id. hibiting discrimination li- by § orientation discrimination 6.19 sexual (prohibiting Licensing the Board of Com- by licenses granted censees mission); Montgomery County Regulations Code of (2004) fire res- § discrimination (prohibiting 21.02.18.04 (including commit- § Id. crimes personnel); cue 27.26.01.01 their sexual orientation against a because of person ted crimes”); (prohibiting employment § 33.07.01.05 “hate Id. County Anne county operations); Arundel discrimination (2005) cable service discrimi- (prohibiting § 10-8-111 Code nation). counties, Montgomery County unique these

Amongst to the benefits employment extended certain because it has County pre employees—rights partners same-sex domestic the civil couples through viously only enjoyed by heterosexual Act of marriage.18 Equity See Benefits Employee contract of 17, 2000) (Nov. orientation); Reg. regard Md. 27:23 to sexual (executive study for sexual orientation discrimina- order commission Maryland).”) tion in couple qualify as a requirements be met for a 18. Certain must 33-22(c)(l) County pro- partnership. Code Section domestic vides: "(c) Requirements partnership. To domestic establish domestic employee employee’s partner ... partnership, and the must "(1) following satisfy requirements: all of the ...; "(A) be same sex “(B) relationship responsible be for each personal share a close welfare; other’s months; "(C) legal for at have shared the same residence least old; "(D) years be at least 18 "(E) relationship, or voluntarily to the without fraud have consented duress; with, to, "(F) any partnership be in a domestic other not married person; "(G) affinity way disqualify blood or in a that would not be related partner employee and marriage under State law if the them from sexes; opposite ... were contract; “(H) legally competent be (the “Act”), Montgomery County § Code 38-22 (providing certain insurance and financial benefits to same-sex Id. § partnerships); (extending domestic 52-24 exemption tax for property Act, transfers to same-sex couples). gener- benefits, ally, health, leave, extends such as and survivor benefits comparable to those afforded the spouses County employees, partners to the domestic of County employees, including those benefits available “under the Consolidated (COBRA), Budget Omnibus Reconciliation Act of 1985 Act, federal Family Medical Leave and other federal laws that to Id. apply County employment §at benefits.” 33- 22(b). upheld

This Court the constitutionality Montgomery of the Tyma Montgomery County, See Act. County 369 Md. 801 A.2d (holding that a county home rule does not exceed its lawmaking authority local or otherwise undermine State and federal law providing benefits the domestic partners of its We employees). held that Act did implicate Maryland’s Id. marriage laws. Instead,

at 158. we determined that the County had demon public strated valid purpose extending employment for benefits, namely “recruiting] qualified and retaining] employ ees and ... promoting] Id. loyalty.” employee . Thus, A.2d at 157 under this authority, State’s home rule Montgomery County right was within its provide for the health and welfare County provided not already the public general (1957, law. Md.Code Repl.Vol., 5(S). 25A, § Cum.Supp.), Art. "(I) legal share obligations satisfy sufficient financial and subsec- (d)(2).” tion (d) acceptable Section addresses partnership. evidence of domestic (d)(1), Pursuant to subsection such evidence consists of either "an signed by employee employee's affidavit both the partner and the under penalty perjury” copy partner registra- or an official of the domestic tion, (d)(2), and under subsection employee evidence that partner items, lease, joint share certain of several enumerated such as a account, 33-22(d)(2)(A), 33-22(d)(2)(C), § checking §

see see may partnership. document a domestic

B. Limitations statutory, regulatory, and case Maryland’s recent Despite legal protections some equalize has evolved to law that homosexuals, are denied couples same-sex heterosexuals and they because are not simply of hundreds of laws protection marriage. from flowing benefits rights entitled to the yet 425 statutory protections to over have directed us Appellees and, result, as a to their couples afforded married that are law, are den appellees protections under state children Marriage ied.19 See Maryland., Inequality Equality in the (2006), http://www.equalitymaryland.org State briefly I ex marriage/marriage_inequality_in_maryland.pdf. laws continue to restrict extent to which these amine the from the full benefits couples enjoying same-sex committed similarly through marriage, unlike privileges available couples.20 heterosexual situated among rights afforded to benefits are

Health related A couples couples. but denied to committed same-sex married surrogate regard entitled to act as automatically spouse spouse incapacitated for an necessary health care decisions ing guardian. of an Md.Code appointed absent the existence § (1982, 2006 5-605 Repl.Vol., Cum.Supp.), 2005 notes, literally federal majority are over a thousand 19. As the there granted couples, rights, responsibilities, privileges to married but L., Paper: couples. A See A.B.A. White denied to same-sex Sec. Fam. of Unions, Marriage, Analysis Regarding Civil An the Law Same-Sex of L.Q. 339, (citing Partnerships, 366 n. 98 U.S. Gen. Domestic 38 Fam. 04-4353R, Rep. Marriage of Act: Accounting GA O No. Defense Office, (2004), Report http://www.gao.gov/new. Update to Prior available correctly, items/d04353r.pdf). majority 6 of their Article, Property can, which for example, protect the property from forfeiture in (2001, certain circumstances. Md.Code ReplVol, 2006 Cum.Supp.), § 12-103 the Criminal Proce- dure Article. In judicial proceedings, married may individuals to disclose their or against spouse compelled testify not be (1974, RepLVol.), communications. Md.Code confidential Article. One Proceedings § and Judicial of the Courts 9-105 testify a defendant compelled against be cannot spouse charge involves child unless as an adverse witness spouse § spouse is victim. Id. a 9-106. or in which the abuse assault education, spouses children and dependent In the area law under further benefit armed forces members at a non-resident tuition exempt paying are from they because (1978, 2006 Md.Code higher education. public institution Article. § 15-106.4 of the Education RepLVol.), relationships child and between determining The statutes (1974, 2001 Maryland Code relevant. parent particularly are Estates § 1-206 of the Trusts and Cum.Supp.), Repl.Vol., as follows: Article states

“(a) pre is during marriage A a child born or conceived as Except legitimate spouses. child of both sumed to be the his 1-207,[21] any § time after a child born at provided with each marriage ceremony in a participated have parents invalid, other, if to be marriage presumed is is even child of both legitimate parents.

“(b) A insemination of a married child conceived artificial legitimate of her husband is the woman with consent purposes. of both of them for all Consent child presumed.” is husband insemination of a

Although a child conceived artificial legitimate be the child automatically married woman can marriage, go couple both individuals same-sex must neces- through process second-parent adoption, which sarily period delay. involves of some It be same-sex are not denied argued couples cannot couples. accorded to heterosexual It significant benefits there are differences the benefits significant clear that couples couples married and same-sex areas provided to (1974, Cum.Supp.), § Repl.Vol., 2006 1-207 of the 21. Md.Code "adopted be Trusts Article that an child shall treated Estates and states parent parents.” adopting a natural child of his taxation, regulation, business secured commercial transac- tions, spousal privilege matters, and other procedural edu- cation, trusts, law, family estates and decision-making regard- care, ing insurance, spousal health labor employment, and pensions, child care and child and rearing, responsibilities to spousal attendant funeral arrangements. Significantly, inequities to in couples directed individuals same-sex an have their impact on children. Children in couple same-sex house- holds are treated their differently—because providers care are denied rights—despite certain benefits and comparable needs to Thus, children of married couples. Maryland’s under cur- laws, rent committed same-sex and couples their children are not protections afforded the benefits and available to hetero- sexual households. Analysis

2. of State’s Interests notes, As majority the State asserts two rationales support of the statute governing marriage, Family 2-§ Law First, that, 201. argues “Maryland State law preserving the historic definition of marriage to include a man a eminently woman is unquestionably reasonable and bears a fair and substantial relation to the State’s legitimate interest in maintaining promoting the traditional institution of marriage.” solely This rationale addresses the definition of rights marriage, opposed and benefits that flow from I marriage. Because separately write the rights address benefits, I do address this proffered State interest. that, The State asserts also encouraging “the definition marriage include a man and woman is a rationally related to 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 rights the full and benefits of marriage order foster its asserted interest in a stable environment for procreation rearing.22 child legitimate There no doubt the State has a interest question welfare of children. The Family § is whether Law 2-201 rationally furthers this interest. will survive law projection jurisprudence, equal our

Under it if makes the distinction scrutiny, generally, rational basis majori As the purpose. state rationally legitimate furthers Law Family established ty acknowledges, the classification The stat over-inclusive and under-inclusive. § 2-201 is both into be born same- may children over-inclusive because ute is conception, methods of through alternative relationships sex insemination, in vitro fertiliza including surrogacy, artificial is tion, Conversely, the statute under-inclusive and adoption. not to couples procreate, choose opposite-sex not all because children, many are to and couples all able have opposite-sex same alternative methods couples utilize the opposite-sex recognized, how couples.23 We have conception as same-sex review ever, subject rational basis classification to with mathe need not be made having “some reasonable basis Whiting- in inequality.” and result some nicety may matical added); Turner, (emphasis but Md. (“A 713-14, fit Waldron, 426 A.2d at 946 loose 289 Md. at see chosen to accom legislative ends and means between significant those which leaves a measure simi plish goals, enactment, by unaffected or con larly persons situated purview versely, which includes individuals within statute’s remedy, to who are not afflicted with the evil statute seeks intolerable.”). case, is whether the question, this in Family has for its classification State a reasonable basis light inequality § the extensive particularly Law classification its on vital impacts that results from the and Waldron, 289 Md. at 426 A.2d at 940 interests. See protected (noting legislative that where a enactment “invades life, or other interests secured rights liberty, property to of our there is rea- jurisprudence, the fundamental doctrines Baker, 23. As noted in undisputed 744 A.2d at “it is that most conception who means of are infertile those utilize nontraditional many assisted-reproductive techniques in- married couples, and that material, being only partner’s genetic volve one of married other through sperm, egg, embryo supplied party third donation.” omitted). (citations son to be in the especially vigilant” exercise of rational basis review.)

Maryland public policy supports procreation that occurs in opposite-sex both and same-sex couple Mary- environments. appears grant land adoptions both homosexual adoption heterosexual an couples, agencies “may deny an application adoptive parent individual’s to be ... because applicant’s ... sexual orientation.” [o]f COMAE 7.05.03.09(A); 7.05.03.15(C)(2). also Maryland see COMAE courts grant second-parent adoptions part- alfio same-sex ners of Health & Department Hygiene Mental issues birth same-sex recognizing partners co-parents. certificates Furthermore, \ Maryland disregard courts must the sexual orientation parent custody of each child and visitation Boswell, 352 Md. disputes. See 721 A.2d 662. These do not demonstrate that has an laws interest favoring parents heterosexual over homosexual with couples Indeed, regard procreation and child the State rearing. specifically couples treats homosexual cou- heterosexual ples similarly in this context.

Despite Maryland that provides rights fact some and procreation benefits the area of to couples, same-sex State it has a asserts rational basis for same-sex excluding marriage. from the of is couples benefits This not a full rational assertion. There is no doubt that the State has a legitimate promoting procreation interest rearing, child rationally but it cannot further by only granting this interest rights marriage opposite-sex the full of when it couples already some provides legal protections regarding procreation and child rearing couples.24 Maryland’s equal same-sex protection legislative jurisprudence requires that a distinction through 24. Whether a child was conceived "accidental” heterosexual family planning by or a sex entered after a different or a same-sex couple encouraging every does not alter the State’s interest in that child setting possible. be raised in the stable most There is no basis rational concluding excluding rights couples for that same-sex from the marriage couples procreative will influence heterosexual to have sexual only marriage pursue marriage procreation. relations within or to after a legitimate State reasonably relate to the achievement Edmonds, 342, 355, Murphy v. 325 Md. interest. See overturn the “a will not that court (noting groups treatment different varying unless the classification any combina so unrelated to achievement persons is conclude only that can legitimate [the court] purposes tion irrational.”) (quotations actions were [governmental] that the omitted). Here, omitted; where internal citations and child- some procreation regarding granted rights has claim that its rationally it cannot rearing couples, same-sex for procreation stable environment providing interest a by the exclusion actually is then furthered rearing child of marr and benefits couples equal rights from the same-sex iage.25 fact, proffered is striking,

What that State’s procreation a environment stable interest—providing compromised by denying same-sex rearing—is actually child marriage. from That rights that flow families benefits is, proffered link there is not a sufficient between State’s utilized the State legitimate interest and the means further that interest. determined arbitrarily may which benefits be State has that results is inequality and the couples

extended to same-sex For there is merely inequality.” example, more than “some why surviving employee of a state spouse no rational basis Maryland’s protection jurisprudence requires legisla- equal Judge legitimate Judith distinction further tive state interest. Chief Robles, 338, 391, Kaye, writing 7 N.Y.3d for the dissent in Hernandez (2006), explained as N.E.2d follows: N.Y.S.2d legislated analyzed, protection requires "Properly equal it be interest, distinction that furthers a legitimate the discrimina- state otherwise, tory Were or invidious exclusion law itself. it an irrational particular group permitted long so there an of a would be was legislation. group challenged identifiable that benefitted from the words, enough legitimate it is not State have a interest other opposite-sex marriages. recognizing supporting in or The relevant excluding question for here is whether there exists a rational basis fact, and, marriage, couples in whether the State’s same-sex from marriages recognizing supporting opposite-sex are or interests omitted). (citation rationally the exclusion.” furthered or performance killed of his her duties should be denied a payment part of death benefit if the of a individual is same- (1994, Repl.Vol., sex Md.Code couple. Cum.Supp.), § 10-404 the State Personnel Pensions Article. A orientation, regardless of sexual surviving spouse, and his or her child children from would benefit the additional finan- a It security provided cial from death benefit. is rational presume that such a financial benefit contribute would to a stable environment for procreation rearing, regard- and child couples’ Similarly, less of the sexual orientation. there is no rational for a requiring group basis life insurance policy to cover a children in a spouse dependent heterosexual family, children of couples just when same-sex would benefit (1997, as much from life Md.Code 2006 Repl.Vol., insurance. § of the Cum.Supp.), 17-209 Insurance Article. This disparate treatment of committed couples, same-sex exhibited supra, directly a multitude of laws discussed the children of same-sex disadvantages couples, there is no when disadvantages rational basis allow such the State’s proffered interest promote is to a stable environment procreation and rearing. child Each child a raised house- couple hold headed in Maryland same-sex needs and is legal entitled to the same as child of protections married parents. Vermont,

I agree Supreme with Court of which recog- significance nized both the multitude and benefits and protections marriage. incident to a Supreme The Vermont Court stated follows: list,

“While other statutes could be added the point to this legal clear. The and protections flowing benefits from a marriage significance any license are of such statutory must necessarily grounded public exclusion be concerns weight, of sufficient cogency, authority justice that the of the deprivation seriously cannot be questioned. Consid- logical ered in light disjunction extreme between the classification and the purposes stated of the law—protecting children and link ‘furthering the between procreation and rearing’—the child substantially exclusion falls short of this a governmental goal promoting The of standard. laudable the secu- promote married to couples between commitment community provides as a whole rity of children and their legal benefits and denying no reasonable basis are no couples, to same-sex who protections marriage of than their respect goal with to this differently situated pro- a link between Promoting opposite-sex counterparts. support fails to exclu- childrearing similarly creation and sion.”

Baker, Family significantly § 2-201 is

The in Law classification under-inclusive, merely and more than an over—and creates to regard means ends with imperfect fit between and Denying rights marriage. disbursement of the and benefits to appurtenant and benefits mar- couples rights same-sex meet the interest riage legitimately not a means to State’s Moreover, child-rearing. furthering procreation and merely inequality”—it classification creates more than “some privi- distribution of benefits and grossly unequal creates a The State leges similarly people. two situated classes denying legitimate has failed to a State interest provide responsibilities marriage rationally and that is protections § 2-201. Family the classification in Law As furthered discussed, it is on supra, this has demonstrated that a State orientation, regardless full of sexual path providing equality it is and irrational for the State to arbitrari- and unreasonable ly grant couples rights to same-sex certain and benefits inci- and marriage considering range protections dent full short, marriage. with while responsibilities come legitimate retaining there be a basis for the definition of may woman, a man there is no marriage as one between and legitimate denying couples basis for committed same-sex marriage. privileges benefits and today reality Maryland couples is that heterosexual only participate

are not the people procreation Maryland’s recognize child laws this rearing. promote reality, and each child raised in a household headed same-sex is entitled couple Maryland committed needs and legal to the as a protections same child of heterosexual Thus, in order for parents. rationally married the State child procreation rearing, rights further the benefits and equally both marriage incident to must be available to commit- opposite-sex ted same-sex committed couples. Remedy

C. has The State not demonstrated a rational relationship denying couples between committed same-sex the benefits and given to married privileges counterparts their heterosexual legitimate government purpose and the of promoting procrea- tion the child-rearing. equal protection guarantee and Under Maryland Rights, of Article Declaration State terms, must provide couples, equal committed same-sex on benefits, same rights, responsibilities by and married enjoyed couples. heterosexual to the Assembly equal

It is General to up protec meet the tion 24 of the guarantee Article Declaration of It is not role Rights. this Court’s to craft a constitutional scheme, but statutory satisfy the General could Assembly creating statutory constitutional mandate separate struc ture similar to the civil union or partnership domestic laws present jurisdictions.26 in our sister

Each statutory rights state’s scheme differs in the and to granted couples,27 benefits same-sex but the schemes are marriage, 26. The focus this dissent on the is not definition of but it Assembly remedy noted that the should be General could act to also protection equal by modifying current violations the definition of mar- riage Family § couples. Law include 2-201 to committed same-sex Alternatively, Legislature partnerships could elect to title all be- homosexual, unions, people, tween two whether heterosexual or as civil partnerships, domestic etc. Connecticut, Vermont, Jersey, Hampshire New New for exam- ple, legislation passed have that allows or civil authorizes unions for (2006 couples. §§ -38pp same-sex See to 46b-38aa Conn. Gen.Stat. (LexisNexis); Supp.); Legis. 2007-2 N.H.Rev.Stat. Ann. Adv. Serv. (West 2007); § N.J. 26:8A-1 to A-12 tit. Stat. Vt.Stat.Ann. Ann. California, (2002). Columbia, Hawaii, §§ 1201-1207 the District of Maine, Oregon, Washington legislation providing enacted for the rights in that afford to same-sex they committed similar equal counterparts. terms with their heterosexual couples Jersey New and instructive. On experience important The 25, 2006, of New decided Supreme Jersey Court October Harris, Lewis N.J. 908 A.2d 196. Court held marriage under the right there is not a fundamental Constitution, equal but Jersey protection New that “under I, the New Paragraph Jersey Article Consti guarantee tution, couples equal committed same-sex must be afforded on oppo rights enjoyed terms the same and benefits married Id. at 220-21. The Supreme of New couples.” site-sex Court either legislature days stated that had 180 Jersey existing marriage statutes to include same-sex amend separate statutory parallel or it could create couples, union, structure, all affording couples such as a civil same-sex rights responsibilities as heterosexual married of the same Id. couples. acted civil Jersey’s legislature

New and chose establish marriage by amending unions the State’s current statute See 2006 N.J. Laws 975. In doing include same-sex couples. so, “continuing it legislature longstand- stated that was its laws all New history insuring equality under the for ing couples citizens the same Jersey by providing same-sex with to rights couples and benefits as heterosexual who choose (West 2007). § marry.” N.J. Stat. 37:1-28® Ann. Legislature The New three Jersey requirements set forth union meet: persons seeking that two establish a civil must (1) union, a another civil party not be domestic partnership (3) sex; marriage Jersey; or be of the same be New years § with 37:1- age, exceptions.28 at least certain Id. rights, the New Regarding Jersey legislature benefits registration partnerships. §§ of domestic 297 -299.6 Family Code, Cal. (West 2004); (2001); seq. § D.C. Code 32-701 et 572C-1 Haw.Rev.Stat. (2006 (2003); seq. Supp.); § et Me.Rev.Stat. Ann. tit. 2007 Or. 168; Laws Sess. Laws Wash. 616-37. marriages prohibited outright, 28. Certain or civil unions are such (West 2007). § those between See N.J. 37:1-1 relatives. Ann. Stat. “[cjivil stated that union shall have all couples of the same benefits, law, protections and responsibilities under whether statute, rule, they derive from public administrative or court law, common policy, any law or other source of civil as are Id. 37:l-31(a). granted to spouses marriage.” § notes, that, statute specifically example, rights of “[t]he civil union couples respect with to a child of whom either union, becomes the parent during the term of the civil shall be the same as those of a couple married with to a child respect of whom spouse partner either or in a couple civil union 37:l-31(e). Id. parent during § becomes the the marriage.” Moreover, benefits, the statute “legal enumerates list of protections responsibilities spouses apply shall [that] like manner to civil union but shall couples, not be construed benefits, an to be exclusive list of such protections and respons Id. § ibilities.”29 Finally, 37:1-32. the legislature estab- benefits, legal protections 29. The responsibili- non-exclusive list of statute, Jersey ties stated § in the New Civil Union N.J. 37:1- Stat. Ann. (West 2007), following: includes the title, tenure, distribution, relating "a. laws descent and intestate succession, survivorship, acquisition, or other incidents of the owner- transfer, death, ship or personal property, inter vivos or at of real or including eligibility personal but not limited to to hold real and property entirety; as tenants status, dependent "b. causes of upon spousal action related to or death, distress, including wrongful an action for emotional loss of consortium, reciting, or other or torts actions under contracts related to, status; dependent upon spousal transfer; probate procedure, including "c. nonprobate law and adoption procedures; "d. law and insurance, benefits; relating “e. pension laws health and protections pursuant "f. domestic violence to the "Prevention of 1991,” P.L.1991, (2C:25-17 Domestic seq.) Violence Act of c. 261 et programs; and domestic violence status; "g. prohibitions against upon discrimination based marital benefits, compensation including "h. victim’s but not limited to victims; compensation spouse, to children and relatives of homicide compensation pursuant chapter "i. workers’ benefits to 15 of Title Statutes, including 34 of the Revised but not limited to survivors’ payment wages; benefits and of back "j. relating emergency nonemergency laws to and medical care and treatment, notification, hospital any rights guaran- visitation and and P.L.1989, (C.26:2H-12.7 hospital patient pursuant teed to a to c. 170 Commission, charged it which Union Review lished Civil with, studying implementation things, other amongst couples, their law, the effect on same-sex evaluating civil being provided family other members children and findings to the marriage, reporting and its unions rather than semi-annual basis. Id. § 37:1- and on a Legislature Governor appeal of an disposition Md. Rule Under by a mandate the Clerk of Court the issuance of by evidenced itself. opinion opinion, in conformance with issued judgment of the Court—is Generally, the mandate—the 8—606(b) opinion, of the but Rule days filing after the delay to advance or the issuance permits the Court P.L.1976, pursuant seq.) nursing to c. 120 or a home resident et (C.30:13-l etseq.); designation for health care and as a health “k. advance directives P.L.1991, (C.26:2H-53 seq.); representative pursuant et to c. 201 care P.L.1989, (C.34:11B-1 pursuant et family benefits to c. 261 "1. leave seq.); law, including, public benefits under State but not "m. assistance P.L.1997, pursuant Jersey c. limited to: Work First New benefits to P.L.1968, (C.44:10-55 pursuant seq.); et medical assistance to c. (C.30:4D-1 seq.); Supplemental Security pursuant et Income to P.L.1973, (0.44:7-85 pharmaceutical pur- seq.); et c. 256 assistance P.L.2001, P.L.1975, (C.30:4D-20 seq.) c. 194 et and c. 96 suant to (C.30:4D-43 P.L.1987, seq.); hearing pursuant et aid assistance c. P.L.1979, (C.30:4D-36 seq.); utility pursuant et benefits c. P.L.1981, (0.48:2-29.15 (0.48:2-29.30 seq.) seq.); et c. 210 et municipality relating imposed laws to taxes the State or a “n. allowances, including but not limited to homestead rebate tax tax exemptions realty deductions based on marital status or from transfer status; tax based on marital relating immunity compelled testimony "o. laws from and the privilege; marital communication "p. ownership rights surviving spouse; home of a "q. right spouse change petitioning of a to a surname without court; of, relating making revoking objecting "r. laws to the to ana- P.L.1969, (C.26:6-57 gifts pursuant seq.); c. tomical et service; pay military "s. for State ballots; application "t. for absentee legal requirements assignment wages; "u. higher "v. laws related to tuition assistance for education for surviv- ing spouses or children.” have, occasion, exercised this discretion. mandate we Public and Correc Massey Secretary, Dept. Safety See Services, (2005) (Clerk tional A.2d 585 389 Md. in days to withhold mandate for 120 order to Court directed Safety of Public and Correctional Services give Secretary the Act). with the Administrative Procedure comply time to in Jersey prior passage to the situation New Similar law, dispar- civil union there is an unconstitutional State’s benefits, and between committed ity rights, responsibilities Maryland. heterosexual in The couples couples same-sex to which are entitled would appellants constitutional relief Assembly. necessarily require cooperation the General result, As a such relief could not be immediate. General should, however, work to create a scheme that Assembly Maryland liberties safeguards protected individual case, jurisdiction In this I would retain Rights. Declaration of in to withhold the mandate this Court instruct Clerk Assembly the General time to consider days give for 180 with the views legislation expressed and enact consistent view, Assembly In dissenting my this General opinion. or enact an marriage appro- should either amend the statutes their full statutory provide appellees scheme to with priate equal guarantee under a time- rights Maryland’s protection ly manner. with, agrees Bell me to state that he Judge

Chief authorizes joins dissenting this to the extent that it endorses opinion couples and advocates that committed same-sex are entitled to benefits that are associated with and flow myriad statutory marriage. join part opinion from He does not of this that rational accepts majority’s analysis and determination applied basis review is the standard to be this appropriate case. See Bell, C.J., dissenting opinion.

BATTAGLIA, J., dissenting. case,

I respectfully majority dissent. this erroneous- ly opinion Judge Murphy relies on the of Chief Robert C. Club, Bainum, Burning Tree Inc. v. A.2d 305 Md. I),1 2- authority Tree to hold that Section (Burning (1984, Article, Family Maryland Law Code a man and a woman is Repl.Vol.) (“Only marriage between State.”), 46 of the implicate valid in this does not Article the fact that Chief Rights.2 Despite Declaration of majority did not reflect the view of a Judge Murphy’s opinion I, 305 Md. at recognized, Burning of this Court as he so Tree 80, 830, case majority adopts 501 A.2d at the instant to hold that Section 2-201 Judge Murphy’s reasoning Chief equally benefits and burdens both men and women and there fore, Deane, escapes scrutiny analysis. Conaway op. strict v. 254-63, Contrary majority’s 932 A.2d at 591-97. to the conclusion, this has scope Court declined to restrict through Article 46 the use of the “equal application” app Club, Inc., 254, In State v. 315 Burning Tree Md. roach.3 (1989) 293, 366, II), 554 (Burning A.2d Tree this Court held “that legislation the enactment of which on its face draws classifications based on sex is state action sufficient to invoke E.R.A.,” citing opinions majority of a of the Court in Although Tree I. Burning many prior implicated of our cases government “directly imposing action a burden or conferring Burning 1. There have been three Tree cases decided this Court: State Club, Inc., 9, Attorney Burning ex rel. Gen. v. Tree 301 Md. 481 A.2d 785 (1984) Club, Bainum, Tree); 53, (Burning Burning Tree Inc. v. 305 Md. (1985) Club, I); (Burning Burning 501 A.2d 817 Tree and State v. Tree Inc., (1989) II). (Burning 315 Md. 554 A.2d 366 Tree Both the opinion majority opinion of the trial court and the Court this address only adopt designations the second and third cases and indicated. confusion, prevent adopted methodology. In order to I have the same Rights 2. Article 46 of the Declaration of also is known as the (“ERA”). Equal Rights Amendment Crane, 133, 149, (1998); 3. See v. 351 Md. 716 A.2d Giffin I, Burning (opinion Murphy, Tree 305 Md. at 501 A.2d at 825 J.). According "equal application” approach, “gener- C to the the ERA on, ally governmental “imposes invalidates” action that a burden or to, grants Giffin, one sex but benefit not the other one.” 351 Md. at approach, 716 A.2d at 1037. Under this a denial without or abridgment equal rights under the law “as between men and wom- en,” I, implicated. Burning the ERA is not Tree 305 Md. at A.2d at 825. Tree Burning females,” males or entirely either upon benefit J.), it I, Eldridge, (opinion Md. 501 A.2d at 838 erroneous, of the factual situations just because would be that the ERA is for this Court to hold presented, heretofore limited, “language rather than to look to its narrowly so 2- scrutiny analysis strict Section which mandate purpose,” See, Crane, 133, 148-49, 155, 351 Md. e.g., Giffin 201. (1998) invali 1029, 1037, scrutiny to (applying strict A.2d and child are of parent of whether a date consideration custody as a factor child determina opposite sex same Rand, 511-12, 516, Rand v. tions); 280 Md. strict scrutin beyond a standard (applying be allocated without support obligations child

y4 require parents). for the sex of the regard Determining Applicable of Review Standard I. Burning I A. Tree Primary Case I, Bainum, in Burning Tree taxpaye his role as Stewart Renschler, seeking a and a woman

r,5 taxpayer and Barbara Club, club private country Tree a membership Burning the State, women, Department sued the that excluded Club, Taxation, a declarato seeking Assessments exception found ry “primary purpose” that the judgment (1957, 19(e)(4)® 81, Maryland Code of Article Section I, Tree Burning ERA. 305 Md. at 59- violated the Repl.Vol.),6 Gould, 882, 85 Wash.2d 540 P.2d 4. The Rand Court cited Darrin (1975), compelling proposition the ERA was the for the itself Washington scrutiny analysis State a strict under state interest I, Burning Tree 305 Md. at 501 A.2d at of the ERA. See also version Judge Eldridge pointed John C. out that the Rand standard where scrutiny’ test.” may be "stricter ... than the 'strict filed, originally also a was Stewart Bainum was 5. At the time the suit however, Montgomery County; Maryland this fact State Senator from II, standing bring Burning relationship to to suit. Tree bore no his I, 2, 385; Burning n. Tree 305 Md. at 260 n. 554 A.2d at 369 Md. at 820. (1957, 19(e) Repl.Vol.), 6. of Article Code Section added): part (emphasis provided in relevant enjoin to sought Plaintiffs also 820. The 501 A.2d at Club, to the tax treatment extending preferential from State applications entertain that the Club sought a mandate membership.7 Id. 501 A.2d at female clubs.—(1) (e) Department Assessments and Country The State pursuant agreements power to make uniform shall have the Taxation of lands and taxation to the assessment subsection relative to this country herein. club as defined actively devoted to use as a with the (2) agreement any thereof or extension to such Pursuant Taxation, actively land which is Department of Assessments State country herein shall be assessed club as defined devoted to use as a provided for in the period of time of such use for the on the basis as if any not be assessed agreement extension thereof and shall or except any purpose, in accordance with oilier subdivided or used for (3) subparagraph hereof. (2) (3) subparagraph according here- any to Whenever land assessed greater value as land than its assessable of has an assessable value club, country also be assessed on such land shall to use as a devoted however, value, greater provided that no taxes shall the basis of such except pursuant greater to payable upon such assessment be due and provisions subparagraph (7) hereof. section, (4)(i) may qualify the club under this ... In order practiced any of discrimination in practice be form or allow to race, color, upon membership guest privileges based granting creed, sex, or persons. origin any person The determi- or or national practices shall be any club discrimination as to whether or not nation affording hearing Attorney a General after the office of the made respect with to discrimina- provisions of this section to the club. The operated are with apply any club whose facilities in sex do not tion General, Attorney to serve primary purpose, as determined sex, particular to the clubs which of a nor or benefit members days certain times. only certain and at certain sexes exclude If, any agreement, extension expiration or prior to the owner, thereof, conveyed property to a new part or all of the as, as, country qualify property to be used or fails said ceases herein, club, part or all of the such time as then at as defined property ceases to be conveyed, such time as said property is or at as, club, as, country the earlier qualify whichever is used or fails taxes, date, applicable rates for the unpaid calculated at the tax involved, upon between the year years the difference particular or (2) subparagraph pursuant to made assessment or assessments pursuant subparagraph made the assessment or assessments hereof, following period time years in the for the taxable included immediately payable[.] become due and shall 19(e)(4)(i) Articles 15 alleged violated plaintiffs also that Section 7. provides, Rights. Article 15 and 24 of the Declaration (e) Section 19 authorized the Department agree- to make with private country ments clubs such as Tree where- Burning for an by, exchange agreement preserve open spaces development years, from for a term of the club would receive a reduced real tax rate. Id. at property 501 A.2d at 818- assessments, 19. The statute system established dual one use,” calculated under the ordinary assumption of “best other, assessment, lower assumption calculated under the the land remain undeveloped. Id. 501 A.2d at 818-19. effect, So as the long agreement was the State collected property only tax on the lower assessed value. In case the country agreement, club breached the the State collect could value; moreover, taxes prospectively higher on the assessed of the tax portion that would have been due based on the higher difference between the lower and values assessed would have been accelerated and become payable immediately. 19(e) Assembly General amended Section provision, add an anti-discrimination which the tax conditioned an agreement benefit on not to discriminate on account of race, color, creed, sex, origin, or national unless the were clubs “operated primary purpose, with the by determined General, Attorney to serve or benefit members of a particular I, Burning sex.” Tree 305 Md. at added); Laws, (emphasis Chap. 1974 Md. 870. The amended statute also periodic contained a so-called discrimination clause, exempting from the anti-discrimination provision those “clubs which exclude certain sexes on certain only days and at part:

relevant provided by support taxes thereafter [A]ll to be levied the State for the Government, general by by City State the Counties and respective purposes, of Baltimore for their shall be uniform within ...; fines, yet may each class or sub-class of land duties or taxes properly justly imposed, political be or laid with a view for the good government community. and benefit of the Article 24 states: ought imprisoned no That freehold, man to be taken or or disseized of his outlawed, exiled, or, privileges, any liberties or or or manner, life, destroyed, deprived liberty property, or of his or but judgment peers, of his the Law of the land.

361 I, Tree Burning 57, 501 A.2d at Md. at 305 times.” certain Laws, 819; Chap. 870. 1974 Md. Burning the Court before issues8

There were several I: whether Tree Department roles of the State with the Club’s 19(e) in conjunction 81 of Article under Section to state amounted open space program, in the participation I, Tree 833; Burning 85, at 501 A.2d action,9 305 Md. ERA; and violated the clause purpose” the “primary whether from the was severable clause purpose” the “primary whether Id. 80, discrimination.10 against prohibition overall statute’s Articles 15 plaintiffs’ claims under court did not reach 8. The circuit 61, I, 24, 501 A.2d at Burning 305 Md. at we. Tree and neither did 821. has been Fourteenth Amendment Equal Clause of the Protection The 9. so by private “whose activities proscribe entities discrimination held to implicate action’ doctrine.” government the ‘state as to involve the ERA, I, 65, Under the Burning 501 A.2d at 822-23. Tree 305 Md. at pari with the "under the materia doctrine has been held state action See, 3, e.g., Brentwood at 836 n. 3. provision. at 90 n. 501 A.2d law” Id. 288, 2, Ass’n, 295 n. 121 Secondary 531 U.S. Sch. Athletic Acad. v. Tenn. (state 807, (2001) 924, 2, action 817 n. 2 148 L.Ed.2d S.Ct. 930 n. law”); Yaretsky, U.S. Blum v. 457 equivalent to "under color state 534, (mere 2786, (1982) 2777, 991, 1004, fact L.Ed.2d 546 73 102 S.Ct. automatically transform regulated by the state does not a business Fourteenth Amend- purposes of the regulation state action for such ment); into 2744, 922, 942, Co., 102 S.Ct. 457 U.S. Lugar Edmondson Oil v. 482, (1982) 2756, (prejudgment attachment of 73 L.Ed.2d 498-99 action); v. Metro. Edison property Jackson constituted state debtor’s 477, (1974) 449, 453, Co., 345, 351, 484 42 L.Ed.2d S.Ct. 419 U.S. sufficiently close nexus ("[T]he inquiry be whether there is must regulated entity challenged so action of the the State and the between may fairly as that of the State be treated action of the latter that the (cancellation utility itself.”) regulated public for non- of service Irvis, action); 407 U.S. Lodge No. 107 v. payment Moose held not state (1972) 1965, 1973, (granting L.Ed.2d 92 S.Ct. discriminatory private racially club not state liquor state action); license to 715, 724, Auth., Parking U.S. Wilmington Burton v. (1961) 856, 861, racially (operation 6 L.Ed.2d 51-52 S.Ct. agency government premises from discriminatory leased restaurant 836, 845, 1, 19, Kraemer, action); 68 S.Ct. Shelley 334 U.S. was state racially (judicial restrictive enforcement 92 L.Ed. action). running with the land was state covenant clause, "primary purpose” challenged only the complaint therefore, clause; court limited the circuit periodic discrimination 501 A.2d at 830-31. The Court issued three separate opin- (Chief ions. Id. at 501 A.2d at 818 Judge Murphy, joined Orth); Judges Smith and id. at (Judge at 833 Rodowsky, concurring); id. at (Judge A.2d at 835 Bloom). joined Eldridge, by Judges Cole and joined Orth, Chief Judge Murphy, by Judges Charles E. Jr. Smith, and Marvin H. took the position that the involvement of the State and the Department open space program 64-65, did not constitute state action. Id. at 501 A.2d at 822- 19(e)(4)(i) In Judge Chief Murphy’s opinion, Section was neutral, 71, facially 826, id. at 501 A.2d at and the State bore no responsibility discrimination, for the Club’s because the State did not initiate the Club’s discriminatory membership policy, the State did not cause the implement Club to those policies inducement, through coercion or statutory and the purpose11 bore relationship no to sex discrimination. Id. at 75-76, 501 A.2d Judge at 828-29. Lawrence F. Rodowsky agreed only to the extent that the actions of the Attorney General and the Department certifying compliance with the 19(e)(4)(i), not, view, terms of Section did in his become state action as a result of the Club’s in the participation open space 85-86, program, 833-34, id. at 501 A.2d at although he main action, tained that the statute constituted state because itself the statute drew sex-based distinctions on its face. Id. at 85- 86, 501 A.2d at 833-34. Judge joined John C. Eldridge, by Judges Harry Bloom, A. Cole and Theodore G. “totally dis- I, 80, analysis

its Burning ERA to that issue. Tree 305 Md. at at 830-31. Judge Murphy regarded open space 11. Chief program as the statu- toiy purpose, plaintiffs, Judge Eldridge, disputed. contention the and I, 76, Compare ("The Burning Tree 305 Md. at purpose 501 A.2d at 828 ”), 100, preserve open spaces of the statute [was] .... with id. at 501 ("It undisputed A.2d 841 purpose provision at that the sole of the was Burning discriminating against to allow Tree to continue women and view, subsidy.”). Judge still receive Eldridge's problem the state Judge's opinion was the conflation in original the Chief of the statute version, Law, 870, and the Chapter amended which I, disputed provision. contained the Burning anti-discrimination Tree 101-02, 305 Md. at 501 A.2d at 842. that the Murphy’s view statute Judge with Chief agree[d]” neutral,” id. “gender the State were and its administration 836; furthermore, 91, Eldridge believed Judge at at A.2d 836, action,” id. at 501 A.2d at state “clearly [was] there 19(e)(4)(i) between sex- drew distinction because Section discrimination, forms discrimination and other based up by mechanism set the statute because the administrative in the “clearly the State discrimination” involve[d] 91-93, at at 836-37. Club. Id. A.2d Court, consisting Rodowsky, A id. Judge majority 834-35, Judges Eldridge, at at A.2d Cole Bloom, 91, 501 the “primary id. at A.2d at held Judge its the ERA. clause on face violated Because purpose” severability, Rodowsky disagreed Judge Eldridge with about majority 91 & 836 & n. a different id. at n. A.2d at consisting Murphy, Judges Orth and Judge of Chief Smith, Judge with agreed id. at A.2d holding “pri- that the Rodowsky, id. at A.2d from mary clause was severable Section purpose” 19(e)(4)©, the entire anti-discrimination thereby invalidating (and clause rendering periodic the discrimination provision moot). issue, writing for himself Judge Murphy,

On the ERA Chief “primary purpose” two concluded that the judges, and other therefore, ERA not implicate clause did not the was scrutiny, the clause benefitted and subject strict because 71, 826, id. at A.2d at equally, burdened both sexes “essentially scope ERA was limited its because the law as Id. unequal imposed by treatment between sexes.” added). 65, According at 823 to Chief (emphasis at A.2d and administration of Judge Murphy, enactment Section 19(e)(4) State,” “action id. at A.2d at constituted 826; nevertheless, not or distrib- apportion “[did] statute sexes, rather unequally among ute benefits or burdens but the tax benefit available to all sex equally single [made] open country agreeing participate space clubs the State’s Furthermore, at 501 A.2d at 826. program.” “[t]he Id. that as a only imposed public treasury burden [was] result of the tax preferential qualifying assessment afforded to clubs,” country all equally by Maryland a burden “born citi zens, Likewise, Id. alike.” public men and women benefits “which from the preservation open spaces accrue[d] [were] sex.” Id. shared each equally by Although acknowledging equal that but facilities for men and women separate may be subject scrutiny to strict “because of inherent inequality treatment sex the separation for one or the other in process id. at itself,” 501 A.2d at Chief Judge Murphy heightened not scrutiny implicated determined was under I Burning Tree “primary facts of because the purpose” Id. clause permissive, mandatory.12 was Judge writing for and two Eldridge, himself other judges, rejected the Judge’s “gender analysis, warning Chief neutral” Judge Murphy’s opinion “Chief seems to embrace a type E.R.A.” Id. ‘separate but doctrine for of the equal’ purposes at stated that Judge Eldridge regardless at 836. any of whether are the sexes benefitted or burdened equally, statute that implicates gender classifications on its face must id. at subject be scrutiny, to strict A.2d at explained of the ERA: scope

While it many prior is true that of our cases have involved government directly conferring action a burden or imposing we have females, a benefit entirely upon either males never the E.R.A. narrowly held that limited to such situations. On the contrary, we have viewed the E.R.A. more broadly, in accordance with language purpose. its added). Id. (emphasis A.2d He then looked Rand, to our jurisprudence which we stated that “ ” “ language ERA only was and ‘can ‘unambiguous’ I, Judge Murphy Burning Chief said that under facts of it the Tree 12. unnecessary give was "detailed to to consideration whether state action providing ‘separate equal’ but facilities men and women violates Although conceivably "might subject the E.R.A.” such a law be ” 19(e)(4) challenge,” require separate equal Section "does not but " facilities, "recognizes simply single may eligible but that sex clubs be 79, participate program. state in the 305 Md. at 501 A.2d at 830 added). (emphasis 95, 501 at factor’,” is not a id. at A.2d mean that sex Rand, (emphasis at 374 A.2d at 903 quoting Md. Barber added), State Board Examin- and also Kuhn, (1973), in Md. 312 A.2d 216 which the ers v. that position Court took the “under E.R.A. classifications subject to ‘stricter ‘suspect on sex were classifications’ based ” I, at 501 A.2d at scrutiny.’ Burning Tree Md. Kuhn, 506-07, Md. at 312 A.2d at 222. quoting with Judge Rodowsky agreed concurring opinion, In a “primary purpose” that the clause on its face Judge Eldridge ERA, holding of the case. represented violated the which view, Indeed, in Judge Rodowsky’s Id. 501 A.2d at 833. at “primary purpose” constitutionally clause only was infirm, discrimination failed for periodic provision but the Id. at 834. at exactly same reasons. Rodowsky Eldridge severability differed on Judges issue; Judge agreed Judge with the Rodowsky Chief hence, nonseverable, was “primary clause purpose” Id. provision was void. entire anti-discrimination A.2d at 833. Tree Burning

A of contention in I was the principal point disputed particular application level of anti-discrimina- 19(e)(4)(i) Judge regarded tion Chief Section provision. neutral, oper- club principle because an all-female could tax mirror-image Burning enjoy ate as a Tree and the state benefit, so the universe of consideration was the set of all eligible country According clubs. Id. 501 A.2d at view, country all clubs were situated with equally this space and all- open program; to the all-female clubs respect hence, clubs free discriminate there equally, male were no ERA The fact that a all-male club single was violation. just only entity to be the under Section happened eligible 19(e)(4)(i) view, was, an this irrelevant coincidence. Court, however,

A held that the universe of majority Judge particular was each club. participating consideration Rodowsky proposition explicitly: stated this subject argument appellees

It is not an answer say open space at the elevated level of statewide 19(e) § program by program established is neutral with sex, in the sense that an all female an all respect male country club is The eligible participate. prohi- ostensible applies to each individual against bition sex discrimination country club The open space in the participating program. the particular problem universe consideration created for by any this participating antidiscrimination law is coun- club, in try and of itself

Id. at added), at 834 (emphasis Judge A.2d agreed, directly position he Eldridge because refuted the (“[T]he Id. A.2d at Judge. Chief three apparently express single do not view the sex sanctioning sex, clubs as imposing upon long as burden the excluded as governmental theory equally action sanctions discrimi- by single against persons nation sex facilities other sex.”).

Ironically, set out positions Judges Eldridge and Rodowsky Brown, find in an A. support article Barbara Emerson, Freedman, I. Gail Ann Thomas Falk & E. Rights A Equal Equal Amendment: Constitutional Basis for Women, (1971), Rights Yale L.J. 889-93 cited at points several in the support minority opinion Chief I, 3, 70, 79, Judge Murphy. Burning Tree 305 Md. at 64 & n. 3, 825, 501 A.2d at 822 n. The Brown & 830. article defines why separate equal theory implicit but in the Chief opinion ultimately Judge’s meaning purpose subverts the of the ERA. principle” Because the “basic of the ERA is that permissible “sex is not a factor” in the legal determining men, it rights of women and follows that “the treatment of ”13 any person the law may under be based on the Judges Eldridge Rodowsky prescient 13. That were in their views on scrutiny strict was individualized level of confirmed in the recent Supreme Community Court decision Parents Involved in Schools v. U.S.-,-, 2738, 2753, Seattle School District No. 127 S.Ct. (2007), Roberts, 168 L.Ed.2d 524-25 where Chief Justice G. John Jr. said: Brown, supra at particular person’s sex. circumstance of I, added). Tree atMd. Burning Accord 889 (emphasis Rand, 822, 825; 374 A.2d at 280 Md. 71, 501 A.2d at summarize, I a of this Court majority Tree Burning To ostensibly an neutral stat- to invalidate scrutiny strict applied analysis The focused drew sex-based classifications. ute that had the State level to determine whether on the individual of a on the basis sex. imposed benefit or burden granted a rejected equal the but Judges separate of this Court Four minority Murphy’s opin- in suggested Judge Chief approach ion. Burning I Tree Jurisprudence Maryland ERA Before meaning and majority I with the about the disagree

Because ERA, history the of the legislative of the and because purpose principal eases sparse,14 I ERA is set out some detail so 306, Bollinger, U.S. gist analysis Grutter[ of v. 539 The entire 2325, (2003),] 156 L.Ed.2d 304 was that the admissions 123 S.Ct. individual, applicant as an program at focused on each issue there particular group. simply racial The as a member of a not only applicants upheld part by race Grutter was classification of individualized, review,” 337, "highly U.S. at 123 holistic 539 2343, 338], 156 L.Ed.2d at [at S.Ct. Johnson, analogy v. 515 The to the instant case is clear. See also Miller 911, 2486, 762, 900, 2475, (1995) (" 776 S.Ct. 132 L.Ed.2d ‘At U.S. guarantee equal protection heart of the Constitution’s lies simple command that the Government must treat citizens “as individu- racial, als, components religious, simply 'as of a sexual or national not ’” Pena, 200, Constructors, ”). 515 U.S. class.' 227, Accord Adarand Inc. 2097, 2112-13, 158, (1995) ("It follows 115 S.Ct. L.Ed.2d principle from” the "basic that the Fifth and Fourteenth Amendments ” governmental protect persons, groups "all action based on ... group long recognized as 'in most circumstances race—a classification prohibited,’—should subjected be irrelevant and therefore detailed equal inquiry personal right protection judicial to ensure that the (citation omitted) infringed.”) (emphasis in laws has not been original). meaning attempts parse majority of the ERA from 14. articles, 17, contemporaneous newspaper op. at 247-50 & n. see legitimacy although questioned the 587-89 & n. we have A.2d at W., 607-11, 837 doing. See re A.2d 175- so In Jason 378 Md. interpreting the ERA this Court before Burning decided I, Tree period in the between 1972 they because guidance afford better regarding interpretation any ERA than provides other extant source. That case law Tree I backdrop Burning opinions supports the position scrutiny applies that strict in the instant case. Kuhn, Board Barber State Examiners v. 270 Md. at 312 A.2d at group cosmetologists mounted a constitutional to a challenge statutory scheme that prohibited them from cutting shampooing men’s hair on issue, the same basis as women’s. One of the statutes 529(a) 43, Maryland (1957, Section of Article Code Supp.), professional defined the performed by services cosme embellishment, ... tologists as “work for the cleanliness and statute, beautification of A women’s hair.”15 different Section (2003) (Harrell, J., concurring); County Hornbeck v. Somerset Bd. of Educ., (Cole, X, dissenting). 295 Md. articles, appreciate To newspaper the weakness of reliance on consider analysis the interpretive fact that an methodology of this Court period over the only sixty- from 1987 to 1994 revealed one case out of six newspaper where this Court even mentioned in the accounts context statutory interpretation. of Conn, See Jack & Schwartz Amanda Stakem Appeals Party: The Court the at Cocktail The Use and Misuse of of (1995). LegislativeHistory, 54 Md. L.Rev. 466-72 stated, part: 15. The statute in relevant ” (a) “beauty any The term culture includes and all work done for any compensation by person generally usually which work is hairdressers, performed by cosmetologists, so-called cosmetologists aides, cosmeticians, beauty beauticians or culturists and demonstra- beauty preparations tors equipment, of or and however denominated hairdressing beauty shops in so-called ordinarily patronized by women, embellishment, which work is for the cleanliness and beauti- hair, arranging, dressing, fication of curling, women’s such as wav- ing, permanent waving, cleansing, cutting, singeing, arching eye- of brows, dyeing eyebrows eyelashes, of bleaching, coloring, or thereabout, similar work thereon and superfluous and the removal of hair, massaging, cleansing, and the stimulating, exercising, or similar face, hands, scalp, upon work by the arms or the use of mechanical cosmetics, apparatus appliances or electrical preparations, or or tonics, means, antiseptics, any creams or or lotions other of sex, manicuring the practices nails of either which enumerated shall beauty be inclusive of term the culture but not limitation thereof. (1957, 43, 529(a). Supp.), § Md.Code Art. (1957, defined Supp.), 43, Maryland Article Code 323 of by barbers without performed services corresponding the scheme, this client.16 Under to the sex of the limitation techniques to men’s hair the same cosmetologists applied who hair, the of their risked loss customarily on women’s used they Kuhn, atMd. prosecution. criminal and even licenses 500-01, 218-19. 312 A.2d at 505-06, id. at inapplicable, was holding that Article 221-22, said that “the statute [did] A.2d this Court at sex; nor, for that either against cosmetologists of

discriminate matter, on sex between bar- there discrimination based [was] bers.” Id. conceded that 221. The Court at 312 A.2d at males, of others individually and behalf group “if a sex, of their situated, complaining were that because similarly the cosmetologists,” the services they being were denied Id. A.2d at been different. would have result Rather, the statute inapplicable Article 46 was because every cosmetologist exactly and barber treated issue were not same, discrimination and because victims Kuhn stands for the Therefore, proposi- parties to the case. July statute stated: 16. Before shave, any person give or or to To trim the beard cut hair massages shampoos, or for hire or reward received tonics service, any person, con- person performing such other shall be occupation meaning practicing a barber within the strued as this subtitle. 1, 1973, (1957), July § was 323. Effective the statute Md.Code Art. amended as follows: subtitle, occupation meaning practicing of of this Within includes, to, shaving, trimming the but is not limited of a barber beard, relaxing, body waving, cutting, styling, cutting and razor coloring, massaging, designing, fitting and shampooing, hair facial person the cutting pieces for hire or reward received of hair by duly performed performing These activities must be a the service. duly barbering except school mere barber or in a licensed licensed Board, hairpieces wigs or the of the where in discretion sales of or exemption. special This shall not be circumstances merit section upon which as or restriction the services construed a limitation perform pursuant cosmetologists permitted to the are licensed provisions of article. this (1957, § Supp.), Art. 323. Md.Code that tion sex-based trigger classifications ERA if the challenging party is the of target discrimination.17 Rand, 510-11, Rand v. atMd. 374 A.2d at this Court considered whether duty the common law of paternal support of minor children survived the enactment of the ERA. In a unanimous opinion, Court held: of words the E.R.A. are clear unambiguous; they

say equivocation without that “Equality of rights under law shall not be abridged or of denied because sex.” This mandating language equality only can rights mean that sex is not a factor. 511-12, Therefore,

Id. 374 A.2d at 902-03. ERA duty mandated that the parental of child support was shared jointly by parents, both in derogation common law rule. Id. 374 A.2d at 905. interpretation

In its of Maryland ERA, the Rand Court examined a eases from number other states construing provisions similar in their own constitutions. Id. at 374 A.2d at At 903-05. conclusion its a analysis, unanimous stated: Court

It is clear thus that the tests employed under constitutional with provisions dealing rights equality from abso- range lute to permissive. Supreme Like the Court of Washington, however, we “broad, believe that the sweeping, mandatory language” of the amendment is cogent evidence that people Maryland are fully committed to for equal rights men [Sjtate and women. The of the adoption E.R.A. this to, did, was intended drastically alter traditional views validity of sex-based classifications. Kuhn Burning is not taxpayer inconsistent with Tree I. Bainum had standing Burning Tree I because has liberal rules of II, standing taxpayer Burning suits. See Tree 315 Md. at ("The generally A.2d at 385 principle cases this Court stand for the taxpayer standing challenge that has constitutionality a statute’s statute, upon showing applied, actually potentially burden.”). plaintiff’s increases the tax noteworthy It is also co-plaintiff Bainum’s Renschler was a victim of sex discrimination practiced by Burning Tree Club. Supreme 515-16, Because the A.2d at 904-05. at Id. whether the sex-based not consider Washington of “did Court or relationship ... the rational at issue satisfied classification “ ‘overriding compel an test,” found but instead scrutiny strict ” ERA, at 374 A.2d to the id. interest’ intrinsic state ling a endorsed 903,18 that this Court implication is at the clear scrutiny for sex-based classifications. level of near-absolute I invalidated sex-based Burning Tree prior cases Other example, For in 46. on the basis Article classifications Ansell, (1980), this 414 A.2d 929 Court 287 Md. Kline of action for crimi- law cause whether common considered At of the ERA. light viable conversation remained nal law, common was available for criminal conversation

the cause of action adultery. The action was only gravamen a man. this marriage a and an act valid Its elements consisted and a man between a married woman intercourse sexual consented, The wife her fact that the other than husband. represented that she herself aggressor, that she was the her hus- neglected by she was mistreated single, that band, no separated through her husband were that she and own, were impotent, or that her husband was fault of her not valid defenses. (citations omitted). The A.2d Court at at

Id. Rand, abrogate Article as construed applied Id. at 414 A.2d criminal conversation. cause action for at 933. case, majority interprets Kline to but- present under bene- applied its that the ERA must be

tress view at op. 258-59 & n. analysis. See at fits/burdens Kline, 592, 414 24; (“explicat- A.2d at 932 n. 287 Md. 594 & it holding that would be unconstitutional ing this Court’s equally imposed on fathers which was not

impose a burden Darrin, Washington Supreme Court of held See 540 P.2d 882. 18. high participating prohibiting girls school football a rule from ERA, compelling ERA was the that State’s violated itself state interest. Id. at id. mothers”); (“Thus, A.2d at Maryland’s law provides different benefits for and imposes different burdens upon its citizens based upon solely their sex. Such a result ERA.”). violates the That consequence view simply Kline, rule, issue particular posed where the common law schemes, like most sex-based categorical drew classification distinctions between males and females A more classes. Kline results from a interpretation accurate of comparison of rights the in obligations husband and wife that case. the Because elements of the tort of criminal conversation marriage were a valid act and an of sexual be intercourse wife husband, tween the and a man other than her it is that the obvious wife lacked of legally cognizable cause against (hypothetical) husband, action the her mistress of whereas, law, at common the husband had a valid of cause Kline, action of against the his wife. paramour Md. at 586-87, 414 A.2d at But for the fact the that husband male, he was would have been unable to sustain the of cause action. It was obvious the Court that the unequal rights wife, under law enjoyed by compared husband, the the the could not survive the scrutiny Id. by mandated the ERA. at (“A 593, 414 A.2d at has a 933 man of for cause action criminal conversation, not.”). but a woman does

The same conclusion results from a of comparison legal the of obligations the and a paramour hypothetical female mis- tress of the husband. At common law as it existed in this up State the of for act in engaging sexual relations wife, with the the paramour was for damages liable to the male, husband. But for the fact he was paramour would no liability. hypothetical have suffered female mistress example our could not have been sued criminal conversa- if husband, tion she had engaged sexual relations with the even she though engaged had the same conduct as the paramour. Clearly, such a sex-based classification scheme could the scrutiny the ERA. Id. not withstand by mandated (“The common law cause of action for criminal conversation ... cannot be reconciled our with commitment to equality of sexes.”). drawn from Kline analysis is that Therefore, conclusion and obli- rights focuses on the sex-based classifications the classification. person by affected gations particular I, also Tree Burning 70, 501 A.2d at 825 See Md. at C.J.) (“The the sexes Murphy, equality between (opinion of individuals ‘rights’ E.R.A. mandated added). Assuming ”)(emphasis personal ‘under the other law.’ constant, analysis appropriate held characteristics are compare ERA affected person under the should similarly person "with a situated challenged classification sex, her obli- rights and then determine whether opposite lens, it through have been altered. Viewed this be- gations every that that fails the comes clear sex-based classification necessarily scrutiny test must fail strict at benefits/burdens analysis in the the individual level. This Court applied Kline, Tree Burning I. See 287 Md. span time from 1972 until quoted approvingly where the Court from Rand’s adoption the E.R.A. language “[t]he did, to, drastically this state was intended alter traditional Rand, validity sex-based classifications.” views 515-16, Md. 374 A.2d at 905. at Kline Court

It that examined the noteworthy is also history criminal and de legislative surrounding conversation that, alone, history supported termined would have standing to Assembly the inference that the General had intended leave law 287 Md. place. common doctrine at 1945, Assembly had A.2d at 931-32. General abolished affections,19 closely related cause of action for alienation of standing left the cause of action for criminal conversation. but Id. at 590, 414 intervening A.2d at 931-32. The crucial fact 46, time which during adoption that was the of Article “addi “of significance persuade tional factor” was sufficient to us a 19. Alienation of was law cause action that affections common arose husband, a married to when man induced woman leave her or relationship. otherwise with the marital Unlike interfered criminal conversation, require proof adultery alienation of affections did not Ansell, 585, 590, separate as a element. See Kline v. Md. 929, (1980). the action for criminal longer conversation no [was] viable.” Id. at 414 A.2d at 932.

In Condore v. Prince George’s County, 289 Md. (1981), A.2d 1011 this Court considered whether the common law doctrine of necessaries survived the enactment of the ERA. majority determined that the ERA abrogated doctrine, under which “the husband a legal duty had to supply his wife with life, necessaries suitable to their station but the wife had no corresponding obligation support her husband, necessaries, him supply or with even if she had financial means to do so.” Id. at 425 A.2d at 1013. The Court agreed unanimously that the ERA sex-neu- mandated trality for the doctrine Compare necessaries. id. at (“[E]xtend[ing] A.2d at 1019 the common law necessaries wives,” doctrine impose liability upon “eliminating entirety,” necessaries doctrine its both satisfy would “general of the ERA purpose proscribe sex-based classifica- tions.”), with id. J., at 425 A.2d at 1019 (Rodowsky, (“I dissenting) agree that decide, this Court the power has based on the ERA ... that the necessaries applies doctrine sexes.”). alike to both

The majority relied on Rand its determination “that the words of the ERA clearly and unambiguously mandated equal- ity of rights between men women ‘canonly mean that ” sex is factor.’ Id. at 425 A.2d at quoting Rand, Md. 374 A.2d at 903. The dissenters likewise believed “the ERA and acts Assembly of the General have it plain beyond made doubt family support obli- no gations exclusively are longer imposed on the male.” Id. 533, 425 A.2d at 1020. Nowhere did the Court invoke compar- isons of “men 254, and women as classes.” op. See at 932 A.2d at 591. summarize,

To in the years prior I, to Tree Burning our cases construing the ERA consistently applied scrutiny strict to sex-based classifications. This Court repeatedly affirmed its commitment to uphold the will of People Maryland of to eradicate unequal state sanctioned treatment based on the happenstance particular of a person’s sex.

375 by Judge Eldridge Analyzed Other States Cases from 3. Burning I Tree I, Eldridge also examined cases Burning Judge In Tree interpreting state constitutional jurisdictions other from I, ERA, Burning Tree 305 Maryland’s similar to amendments 96-98, 839-40, recognized that courts 501 A.2d at and Md. at Massachusetts, ERA interpreted and Illinois Washington scrutiny strict require in their own constitutions provisions shape of law body helped Id. That case of sex classifications.20 ERA, the idea that interpretation supports and our own See, Rand, 280 Md. at scrutiny apply e.g., here.21 strict should (“Cases jurisdictions 512, A.2d from other state 374 at 903 equal rights meaning of their the breadth and interpreting Mary reach of ascertaining amendments are instructive E.R.A.”). land’s of Court Massachusetts example, Supreme

For Judicial require application of ERA22 to interpreted the Massachusetts interest test” to assess scrutiny—compelling “strict State See, Opinion Representatives, e.g., the Justices the House (1977) (applying scrutiny strict 371 N.E.2d 427-28 Mass. sports); girls Dar from state-sanctioned contact invalidate exclusion rin, Ellis, (same); People 57 Ill.2d 311 N.E.2d P.2d at 893 v. (1974) permit scrutiny (applying strict to invalidate statute adults, precluded boys charged 17-year-old but like to be ted girls). 17-year-old treatment 598-99, op. majority, see 21. Unlike equal rights actually on the basis of opinions I cite were decided quoting pas- states. After the exact same amendments in the various cases, Rand, analyze majority purports to relevant but sage from following under a state ERA: that the were decided fails mention (decided Kandu, (Bankr.W.D.Wash.2004) under re 315 B.R. Robles, law); 821 N.Y.S.2d federal v. N.Y.3d Hernandez Vermont, (no ERA); (2006) v. 170 Vt. N.E.2d 1 state Baker Nelson, (same); 291 Minn. A.2d 864 and Baker (1971) (same). N.W.2d 185 Const, I, ("All equal people pt. art. I are born free and and 22. Mass. natural, rights; among essential and unalienable which have certain defending right enjoying their lives and may liberties; be reckoned fine, protecting property; in acquiring, possessing that of safety happiness. Equality seeking obtaining their sex, race, abridged be because of law shall not denied or under the color, origin.”). or national creed 376

“any governmental classification based solely Opin sex.” Representatives, ion the Justices to the House 374 Mass. of (1977) added). 836, 426, N.E.2d 428 (emphasis 371 The court statute, 6723, whether proposed considered House No. bar ring girls participation boys from with in football and wres by was the ERA.23 The tling, permitted court deci compared from sions a number states that had adopted equal rights amendments, and the purpose held of the ERA was to claims, require, evaluating when equal sex-based protection scrutiny scrutiny,24 strict rather than intermediate the stan applied by dard federal and state courts to sex-based equal protection claims under the Opin Fourteenth Amendment. (“To Justices, ion the 371 N.E.2d at 428 use a standard applying the equal rights Commonwealth’s amendment which requires less any scrutiny negate than strict test would purpose equal rights of the amendment intention of Maryland, Supreme Unlike in Massachusetts the Judicial Court is advisory required opinions response questions presented to issue II, by legislature. either house of pt. the state See Mass. Const. ch. ("Each legislature, governor art II branch of as well as the or the council, authority require opinions justices shall have court, law, supreme judicial upon important questions upon occasions.”). solemn Supreme developed scrutiny 24. The Court the so-called intermediate claims, equal protection including test for certain those based on sex 718, 724, Hogan, See classifications. Miss. Univ. Women v. 458 U.S. 3331, 3336, (classification (1982) 102 S.Ct. L.Ed.2d must " 'important governmental objectives’,” employed serve and the means " ” 'substantially achieving objectives); be must related’ Frontiero Richardson, 677, 688, 1764, 1771, v. 411 U.S. 93 S.Ct. 36 L.Ed.2d (1973) Brennan, (Plurality consisting Douglas, of Justices White argued sex, upon and Marshall that "classifications based like classifi- race, upon alienage, origin, inherently cations based or national are suspect, subjected judicial scrutiny.”); and must therefore be to strict 691-92, (concurrence id. at S.Ct. L.Ed.2d at 594-95 Reed, classifications); unwilling adopt scrutiny strict for sex Reed 71, 75-76, 253-54, 404 U.S. 92 S.Ct. 30 L.Ed.2d Supreme (early invalidating Court case sex-based classification under review). rational Virginia, basis But United States v. 518 U.S. cf. 2264, 2275, (1996) (emphasiz- 116 S.Ct. 135 L.Ed.2d ing justification proffered gender the State for classifications "exceedingly perhaps be persuasive,” signaling must a shift scrutiny). Court toward a standard closer to strict it.”). scrutiny led Application strict adopting people legislation would be proposed conclude that the the court to unconstitutional: Massa- [the No. 6723 would violate

The enactment of House in prohibition proposed The absolute ERA]. chusetts which a scrutiny to cannot survive the close legislation subject- must solely based on sex be statutory classification voluntary partic- from of all females prohibition ed. A circum- every possible a under particular sport in ipation interest. compelling no State stance serves at 429-30. Id. Gould, v. upon relied Darrin

Judge also Eldridge 882, (1975), Supreme in 859, which 540 P.2d Wash.2d participation on girls’ of invalidated ban Washington Court Washington A in school district high on school football teams. on a football team playing from two sisters prohibited had by barred a rule Wash participation their was because (“WIAA”), a Interscholastic Activities Association ington Id. at 883-84. As high of schools. statewide association stan matter, applicable court addressed the preliminary Clause of the Equal of review under the Protection dard I, Amendment, Article counterpart, and its State Fourteenth held Having 12 of Constitution.25 less Washington Section the ERA26 was in a case where years previously, than two law, Washington would be re- that under sex inapplicable,27 provision 25. The relevant states: citizens, citizen, passed granting any or law shall class No be municipal, privileges corporation or immunities which other than citizens, equally belong or upon to all the same terms shall not corporations. Const, I, provision § as the Privi- 12. This is also known

Wash. art. leges and Immunities Clause. Const, XXXI, Washington § 1. ERA states: 26. Wash. art. rights responsibility be

Equality of under the law shall not denied abridged on account of sex. Hutt, (1973). The v. 517 P.2d 599 ERA 27. Hanson 83 Wash.2d before the inapplicable because the cause action arose in was date of the ERA. Id. at n. December effective garded an “inherently suspect” triggering classification Hutt, Hanson v. scrutiny, strict 83 Wash.2d 517 P.2d (1973),28 the court held that ERA adoption required an even more stringent standard than strict scrutiny. Darrin Gould, (1975) (“Presum 85 Wash.2d 540 P.2d Const, ably the people adopting art. intended to do more than repeat already what was contained the otherwise constitutional governing provisions, state, federal which discrimination based permissible on sex was under tests.”). Henceforth, rational and strict relationship scrutiny in Washington, overriding

[t]he state compelling adopted interest as people this state 1972 is “Equality rights that: responsibility under law shall not be or abridged denied account sex.” Id. at 893. Because the public high involvement of schools the implicated WIAA id. doctrine, the state action at the court applied the “overriding compelling state em- interest” bodied in the ERA to invalidate the ban statewide on girls’ in Id. participation high school interscholastic 893. football. at A upon third case relied by Judge Eldridge in Burning Tree Ellis, I was v. People (1974), Ill.2d 311 N.E.2d in which Supreme the Court of interpreted Illinois the ERA29 to require that classifications based sex regarded be as “ ” “suspect,” therefore, require judicial ‘strict scrutiny.’ From plain language the of the ERA and its legislative history, “inescapable” the court found the conclusion purpose of the ERA was “to supplement expand guaranties equal protection provision of the Bill of Rights” of the Federal Constitution. Id. Under a strict scrutiny analysis, the held court that a statute 17- permitting holding 28. The Hanson based plurality opinion court its on the Frontiero, Supreme Court 411 U.S. at 93 S.Ct. at supra L.Ed.2d at 592. See note 24. I, ("The equal § 29. protection Ill. art. Const. of the laws shall be abridged denied or on account of sex the State or its units of local districts.”). government and school crimes, but for certain as adults boys charged to be year-old as violated girls juveniles, to be tried 17-year-old requiring 99, 101. at ERA.30Id. the Illinois Even Scrutiny Classifications for Sex-Based Strict Facially Neutral

Where and eases in sister and its progeny, On the basis of Rand El- provisions, Judge interpreting similar constitutional states “the E.R.A. renders Tree I concluded that Burning dridge subject at strict suspect and least sex-based classifications those being upon persuasion with burden of scrutiny, I, 305 Burning Tree the classifications.” attempting justify Therefore, (emphasis original). at Md. at subject E.R.A. sex classifications respect, this makes “[i]n Id. scrutiny as racial classifications.” least the same added). impli- Even a neutral statute can (emphasis facially if effect of the classifica- scrutiny purpose cate strict discriminatory, concluded. Id. at Judge Eldridge tion are Indeed, 501 A.2d at 841. purpose provision and effect of the purpose primary

[i]f clubs, the than sex single single related race rather had lan any neutrality provision, regardless alleged of Hunter v. clearly principles fall under the guage, would Underwood[31]; Housing Heights Metropolitan Arlington stated: 30. The statute in force the time the crimes Section, years Except provided boy who was under 17 in this no alleged girl years age at age was under 18 the time who may prosecuted of this or for under the criminal laws State offense be any political ordinance of subdivision thereof. violation an Ill.Rev.Stat.1971, 37, 702-7(1). ¶ gender current stat ch. The neutral (1999). Comp. 705 Ill. Stat. ute is codified at 405/5-120 1923, Underwood, 233, 1916, 222, S.Ct. 85 v. 471 U.S. 105 Hunter 31. 222, (1985), provision constitutional L.Ed.2d 231 held an Alabama any "crime requiring the disenfranchisement those convicted turpitude” Equal Clause of Four- violated the Protection moral Amendment, racially provision disparate had a teenth because was a or “moti- impact, and because racial discrimination "substantial” Supreme vating” factor Court found behind enactment. despite neutrality. provision facial invalid its Alabama constitutional 227, 1919-20, 85 at 227-28. Id. at 105 S.Ct. at L.Ed.2d 380

Corp.[32] v. similar Lightfooti[33], Gomillion cases. added). 102, Id. at A.2d at (emphasis Judge 501 842 view, 19(e)(4)(l), Eldridge’s prohibited Section which discrimi- race, color, creed, sex, on grounds nation or national but when origin, permitted country sexual discrimination primary “to serve or of a purpose club’s was benefit members sex,” particular was unconstitutional both on its face in its 99-102, Id. A.2d at effect. at 501 840-42. Because at all times from the enactment of the anti- “primary purpose” provision, litigated, discrimination until time the case was Burning entity Tree was the which the only provision 100, 841, id. 501 applied, undisputed at A.2d at it was that the 19(e)(4)(l) and effect of Section were purpose permit “to one country discriminatory maintain policy club to its while con- tinuing 101, a state receive substantial benefit.” Id. at 501 A.2d at 841. In that Tree I respect, was indistin- Burning guishable from line of Supreme a Court eases that invalidated ostensibly neutral laws the effects patently of which were See, discriminatory grounds of race. v. e.g., Hunter Un- derwood, 233, 222, 227, 1916, 1919-20, 1923, 471 U.S. 105 S.Ct. 227-28, 222, 85 L.Ed.2d (facially 231 neutral state 252, Village Arlington Heights Corp., v. Metro. Hous. 429 U.S. 270- 566, 450, (1977), 97 upheld facially S.Ct. 50 L.Ed.2d a zoning against Equal challenge local neutral restriction an Protection despite racially disproportionate impact, its because there was insuffi- racially discriminatory Village’s a cient evidence of motive in the zoning decision. 339, 340-2, 125, 127, Lightfoot, 33. Gomillion 364 U.S. 81 S.Ct. (1960), legislature L.Ed.2d held that action a state redefin ing municipality potentially boundaries of was unconstitutional on grounds, plaintiffs Fifteenth Amendment because the African-American racially alleged discriminatory purpose deprive below them of their voting rights. procedural posture appeal Because the was an from upon granted, dismissal for failure to state a claim which relief could be the Court declined address the substantive issue. Id. 81 S.Ct. at concurring at opinion, at L.Ed.2d 117. In a Justice Whittaker argued analyzed that the Court should have the case under Four Equal teenth Id. Amendment Protection Clause. 81 S.Ct. at J., (Whittaker, concurring). Subsequent L.Ed.2d 118-19 Reno, Supreme adopted Court decisions this See rationale. Shaw v. 630, 2816, 2825-26, (1993). U.S. S.Ct. 125 L.Ed.2d disenfranchising disproportionate provision constitutional in violation of Fourteenth of African-Americans held numbers Clause); Loving Virginia, v. Protection Equal Amendment 1817, 1823-24, L.Ed.2d 11-12, 87 S.Ct. 388 U.S. anti-miscegenation statutes neutral (facially 1017-18 Protection Equal of Fourteenth Amendment held violation Clauses); U.S. Lightfoot, Due Gomillion Process (1960) (local 339, 341-42, 81 S.Ct. L.Ed.2d all African- boundary nearly to exclude altering municipal law constitutionally suspect). American voters I, summarize, in of this Court Burning majority Tree a To interpretation to a robust prior our cases mandate interpreted Henceforth, resulting in government action sex- of the ERA. scrutiny, with subject classifications would be to strict based proponents on the classifications placed the burden narrowly compel- to further a they were tailored demonstrate special took care to look state interest. This Court ling underlying to their ostensibly neutral classifications beneath effect, out in order ferret state sanctioned purpose and as law. masquerading facially discrimination neutral Burning II B. Tree II, adopted Judge Eldridge’s

In Tree this Court Burning I Burning rejected rationale in Tree the benefits/burdens Judge Murphy, invalidating what was termed analysis Chief this response “sex neutral” law. In to the decision of Court I, Burning Tree the effect of which was remove the anti- 19(e), the entirety in its from provision discrimination Section Laws, Assembly Chapter enacted 1986 General the periodic provis to reenact discrimination attempted which II, A.2d Tree 315 Md. at at 370. Burning ion.34 country periodic provision permitted a club to 34. The discrimination days specific specific on basis “exclude certain sexes on or times statutory section stated: of sex.” The relevant section, (a) (b) General—Except provided subsection of this if qualifications § country of this club that meets the 8-212 subtitle race, color, creed, sex, practices allows or discrimination based any We held that which legislation “enactment on its face is state action draws sex classifications based on sufficient invoke the E.R.A.” Id. at 293, 554 at 386 (emphasis A.2d added).

For the precise “primary purpose” reasons clause failed Id. at 294-95, under failed Chapter Article as well. 19(e), 554 A.2d at like Exactly 386-87. Section Chapter 334 first, drew Chapter séx-based classifications: 334 distin- guished sex-based discrimination from types other discrimi- nation; second, Chapter permitted types some of sex (total). Id. In (periodic), proscribed discrimination but others addressing the State’s contention that physical differences between justified the sexes provision, contested this Court said: justify racially sexually discriminatory order to a or

statute, is not enough it for the State claim legitimate to it interests which seeks to further. strict scrutiny, Under must be legislation narrowly tailored precisely limited to those achieving legitimate ends.

Id. at 554 A.2d at We 387. held35 that the State had failed to meet its burden of that demonstrating Chapter 334 id. narrowly achieving was tailored to its purposes, (“Nothing narrowly the statute confines the permitted sex discrimina tournaments].”), tion [single-sex golf regardless of whether origin granting membership guest privileges, national or the coun- try may agreement club not make an under this subtitle. (b) Exception—If country specific club excludes certain sexes on sex, days specific country or at times basis of on the club does not (a) under discriminate subsection of this section. Laws, Chap. 1986 Md. codified as Section 8-214 of the Tax- Article, (1986, Property Maryland Supp.). span Code In the time II, Burning Burning between Tree I and Tree Article 81 had been Tax-Property supra recodified as the See 6. Article. note out, points majority Burning presented 35. As the Tree II also issues under, alia, Amendment, I, (Article inter the First the Contract Clause 10), III, Section and Article Section 33 of the Constitution. 21; II, op. See n. 593 n. Burning A.2d at Tree 315 Md. at 261-62, 554 A.2d at 370. are These issues unrelated the instant case. “substantial,” 554 A.2d at id. at purposes were those A.2d at 387. Id. at “legitimate.”36 or that recognize case fails present in the majority stan- scrutiny strict clearly adopted Tree II Burning ostensibly of whether Regardless in ERA cases. dard classi- equally by statutory or burdened sexes are benefitted scrutiny under the fication, must strict withstand statute A.2d at 386-87. or else invalidated. Id. ERA be stat- sexually discriminatory justify racially “In order interests ute, legitimate to claim enough it is not the State Id. at 554 A.2d at it to further.” which seeks Rather, heavy must burden demon- the State shoulder restrictive possi- means chosen are most strating state interest. achieving compelling with a ble consistent Furthermore, II on ERA Burning Tree the holding the of [Burning “analytically indistinguishable relied the issue II, 294, case,” 315 554 A.2d at Burning I Tree Md. at Tree ] which, demonstrated, reasoning traces its back as I have to of Article 46 itself. ultimately, Rand and the enactment to Therefore, in fundamentally case errs majority present every case “[virtually Maryland applying its assertion 46 with where the distinction Article has dealt situations governmental singled- enaction or action by particular drawn as men and women discrete disparate out for treatment 258-59, at See 932 A.2d op. classes.” "substantial,” merely "legitimate,” interest was 36. Whether the state "compelling” Subsequent case deci- was immaterial to the at hand. appropriate no that the interest sions of this Court leave doubt state d.B., 267, 279 be at "substantial.” See In re Roberto 399 Md. must least (2007). agree generally I with the n. 122 n. 13 opinion’s governing equal majority standards review statement of the of claims, 271-76, process op. protection see 932 and substantive due review, proviso that rational A.2d at with the added under basis challenging government those persuasion burden of lies with the action, scrutiny, both and strict the burden whereas under intermediate persuasion of rests with State. 384 Maryland Burning Apply

C. II Cases After Tree Strict

Scrutiny to Sex-Based Classifications to Contrary the assertion of the in the majority present case, our subsequent Burning cases Tree II have held that state effecting solely action classifications on the basis of sex is subject scrutiny to strict the ERA. under State,

Tyler (1993), Md. A.2d 648 was an appeal of a murder conviction which the defendants contest- ed the use of peremptory challenges State’s strike women jury pool. from the This v. Kentucky, Court extended Batson 79, 89, 1712, 1719, 476 U.S. 106 S.Ct. L.Ed.2d 82-83 (1986) (race-based peremptory presumptively strikes invalid protection under equal analysis), light of Articles and 46 Maryland Rights, Declaration to hold sex-based strikes peremptory prohibited. are the words of Judge Orth, speaking majority: for the law, equality rights regard gender, under without by Art. 46 Maryland

bestowed Declaration of Rights, flowing through protection of Art. 24 equal guarantees Rights Declaration of Batson v. Ken- tucky, (1986), 476 U.S. L.Ed.2d S.Ct. prohibits State a criminal prosecution using from peremptory challenges as to a person so exclude from juror service that person’s because sex. added).

Tyler, Md. at 623 A.2d at 653 (emphasis Supreme Because the had yet37 Court addressed the strikes, applicability Batson to sex-based peremptory because this Court had specifically question, reserved State, 13, 7, 228, Tolbert v. 315 Md. 23 n. 232 n. 7 (1989), it was we ERA necessary that construe the to require “ ” “ justification’ ‘substantial for providing ‘state action sex’,” just based segregation upon as the Fourteenth Amend applies segregation Tyler, ment upon based race. 330 Md. 265, Indeed, at 623 A.2d at 651. ERA the was outcome Subsequently Supreme preclude the Court would extend Batson to T.B., peremptory challenges. sex-based J.E.B. v. ex Alabama reí. 511 130-31, 1419, 127, 1422, 89, (1994). U.S. 114 S.Ct. 128 L.Ed.2d 98

385 determinative; Special Appeals, the of we reversed Court the grounds extend on had declined to Batson which law, his challenge peremptory common the under hence, unchallenge regarded was as “conclusive” torically 42, State, 56, 94, 607 61 able, 92 A.2d Md.App. Eiland 648, 261, 623 (1992), 330 at A.2d at Tyler, rev’d sub nom Md. a clear yet the Court had not evinced Supreme and because challenge” effectively destroy peremptory “to intent heavy artillery of of application consistent “the through Eiland, 88, 90, 607 Md.App. Protection Clause.” 92 at Equal 58, 59. A.2d at in extending Batson to sex-based noteworthy

It is strikes, scrutiny to vindicate applied we strict peremptory juror sanc- an stricken suffer state right of individual discrimination, rejecting equal a but separate approach. tioned (“ 263, 623 649 330 Md. at A.2d at State’s Tyler, ‘[T]he See jurors chal- through peremptory to strike individual privilege subject Equal Protection commands lenges, Batson, ”), 476 106 at quoting U.S. at S.Ct. Clause.’ Alabama, Compare at 82. Swain v. 380 U.S. 90 L.Ed.2d (“[W]e 824, 837, S.Ct. L.Ed.2d an examination of requires cannot hold that the Constitution for the his challenges reasons exercise of prosecutor’s case.”), Batson, 92 n. 106 S.Ct. with 476 U.S. at any given (In Swain, n. 1721 n. at 85 overruling L.Ed.2d noted the difficulties” faced the defendant “practical Court systematic a chal- peremptory who must demonstrate use “over to exclude African-Americans a number lenges cases.”). with the Whereas Swain burdened defendant pervasive discrim- virtually impossible demonstrating task trials, the course of reduced inatory pattern many over Batson evidentiary focusing single the defendant’s burden trial, shifting and then to the State persuasion burden burden upon greatly production satisfaction of a diminished by the defendant. U.S. S.Ct. at Moreover, L.Ed.2d at the Batson Court noted 87-88. equal ju- to the excluded application protection principles rors, not merely Id. to the defendant. at 106 S.Ct. at 1723-24, 90 L.Ed.2d at 88.

Ultimately, the Supreme Court recognized explicitly individual equal protection of an right juror “not to be excluded from account of race” in Powers v. petit jury] [a Ohio, 400, 409, 1364, 1370, 411, U.S. S.Ct. 113 L.Ed.2d (1991), where the Court extended Batson to cover instanc es of peremptory strikes against potential jurors exercised a different race than that of a criminal repudi defendant and ated the separate doctrine of but equal the context of peremptory challenges. The consciously “reject[ed] Court ... the view that race-based peremptory challenges equal survive protection scrutiny because members of all races subject are treatment, to like say jurors which is to that white subject are to the same peremptory risk of challenges based on race as Powers, are all jurors.” other 499 U.S. at 111 S.Ct. at 1370, 113 L.Ed.2d at 424-25. See also J.E.B. v. Alabama ex T.B., rel. 127, 159, 1419, 1437, 511 U.S. 114 S.Ct. 128 L.Ed.2d (Scalia, J., dissenting) (criticizing majority for “focusing unrealistically upon individual exercises of the peremptory challenge,” and arguing unsuccessfully in favor of a group-based equal protection analysis of peremp sex-based strikes). tory Thus, in adopting the Supreme Court’s equal protection analysis under Batson and its progeny and applying ERA, Tyler flatly reasoning light of the our holding equal contradicts application approach espoused by the majority in the instant case. Crane, 351 Md. at 716 A.2d at likewise

Giffin was entirely consistent with the ERA interpretation of the In Giffin, applicable to individuals. this Court faced the question whether Article permitted a judge weigh, as a relevant factor in a custody child proceeding, the sex of either parent in awarding physical Id. at custody. 716 A.2d at that, 1034. We noted under the best interest of the child standard, judge the trial Id. at exercises broad discretion. 144-45, 716 A.2d at 1035. unlimited, That discretion is not however; cannot, judge “clear, consistent with the unam- biguous unequivocal” id. language of Article will be a better parent assume that a sex. solely child because she is of the same custodian of her Id. 155, that “this Court has at 716 A.2d at 1040. We said ‘broad, sweeping mandatory Amendment’s interpreted commitment expression Maryland’s as the language,’ and women and the statement of its rights for men equal to such respect to alter traditional attitudes with intention Rand, Id. at 151, 1038, Md. quoting 716 A.2d at 280 rights.” (citation omitted). Furthermore, 515, “the A.2d at 905 at 374 by Maryland Equal between the sexes demanded equality individuals ‘under ‘rights’ Amendment focuses on Rights law,’ immuni- encompasses privileges, which all forms of Id. 149, 716 ties, of citizens.” responsibilities benefits and I, Tree 305 Md. at quoting Burning 70, 1037, A.2d 501 A.2d at added). understanding of applied We this (emphasis at 825 award based on whether a custody the ERA to invalidate a sex, opposite despite child were of the same or parent custody determination would the fact that a sex-matched satisfy equal application approach. Boston, (1998),

In Blount v. 360, 1111 351 718 A.2d Md. in the running Maryland State Senate filed suit candidate County to strike the name of Circuit Court for Anne Arundel alleged from the ballot on the basis of an failure opponent his residency At issue was whether satisfy requirements. Blount, incumbent, run Senator Clarence W. could for re entirely City despite election in a district in Baltimore the fact nights of his at a condomini spent percent” that he some “90 Pikesville, by County. um maintained his wife Baltimore Id. 375, a thorough 718 A.2d at 1119. This Court conducted III, of the law of domicile in of Article Section 9 analysis light Constitution,38 Maryland because our case law has of the alia, provision governs, residency require- This inter constitutional provides Assembly. as follows: ments for members of the General It Delegate, person eligible who on the date A to serve as a Senator or election, (1) (2) Maryland, of his is a citizen of the State of has date, (3) year preceding least one that resided therein for at next represent has been if the district which he has been chosen Blount, “domiciled.” 351 Md. at construed “resided” to mean Blount 365, Although A.2d at 1113. the domicile Mrs. issue, that is obvious directly at this Court noted “[i]t was not woman’s domicile was general rule married [that regardless her husband of her domicili- determined that of 5,n. Article 46.” Id. at 385 ... overruled ary was intent] at 1124 n. 5. A.2d scrutiny is the rule cases have affirmed strict Other action that draws classifications on the basis applied to state Perez, Ehrlich v. A.2d sex. See 394 Md. n. (“ (2006) Equal Rights 1236 n. 10 ‘[B]ecause ..., classifications Amendment to the Constitution ”); suspect subject scrutiny.’ are to strict gender based Edmonds, v. n. Murphy 325 Md. Donnelly, Ritchie (same); 324 Md.

n. 7 (1991) (sex-based 432, employee of State discharge A.2d 443 Briscoe v. Prince 46); Article “clearly permitted” by 7, George’s County Dept., Health 323 Md. 452 n. (1991) (“[B]ecause ..., gender- 1115 n. 7 of Article 46 suspect subject are to strict based classifications are based on is scrutiny. Consequently, gender a classification classification based on way comparable employment no to an omitted). (citations occupations.”) different Interpreted D. States Have Similar Constitutional Other Scrutiny. Require Provisions to Strict it is law in that sex-based classifi- Because settled Tree Burning ERA, scrutiny strict under the implicate cations II, 293-96, 386-87, majority at 554 A.2d at must 315 Md. election, prior has established for at least six months to the date of his preceding next that date. resided in that district for six months person represent has been If the district which the has been chosen election, prior six months to the date of his then established less than above, (1) (2) have resided in the district in addition to he shall long person eligible as it has been established. A to serve as as Senator, age twenty-five years, or as a a if he has attained the age twenty-one years, Delegate, if he attained the on the date of has his election. III, §

Md. Const. art. look, does, it from our sister states that refuse to as to cases inherent in their acknowledge the sex-based classifications ERA scruti- marriage prohibitions, thereby avoiding same-sex 598-99. ny altogether. op. See 932 A.2d at Several however, by majority, grounds cited were decided on cases ERA, thus, than the are irrelevant to the completely other under our ERA. question applicable standard of review (Bankr. Kandu, these are In re 315 B.R. 123 Among W.D.Wash.2004) (decided law); under federal Hernandez v. Robles, N.Y.3d 821 N.Y.S.2d 855 N.E.2d (no ERA); Vermont, 194, 744 state Baker v. 170 Vt. A.2d 864 (1999) (same); Nelson, and Baker v. Minn. (1971)(same). N.W.2d actually applied

In cases that some version of the ERA to classifications, consistently adopted sex-based courts have scrutiny proper analytical strict as the framework. For exam ple, Supreme Court of New Mexico considered whether Secretary Depart of the New Mexico Human Services 766,39 could implement regulation, restricting ment Rule providers state reimbursement to abortion under the Medicaid Johnson, N.M. program. Right Choose/NARAL (1998). Department N.M. P.2d 841 amended Rule 766 to restrict funding state of abortions to cases certified physician necessary to save the life of mother, to terminate an ectopic pregnancy,40or cases of incest, id. rape previous whereas the version of the rule permitted funding state under a much broader definition (1993), Department § 39. Pursuant to N.M. Stat. 27-2-12 was re- sponsible establishing for rules to administer New Mexico’s Public filed, Assistance Act. At the time the suit was the statute stated: subject appropriation Consistent with the federal act and to the and funds, availability of federal and state the medical assistance division department may by regulation provide of the human services medical assistance, including the services of licensed doctors of oriental medicine, chiropractic physicians hy- licensed and licensed dental gienists practice, persons eligible public in collaborative for assis- programs tance under the federal act. ectopic pregnancy cavity 40. "occur[s] An elsewhere than in the of the (28th ed.2006). Dictionary uterus.” Medical Stedman’s “a having any pregnancy included necessity that of medical health or mental upon physical negative impact profound Id. at 845. Because prohibits federal law an individual.” incest, to save the or or rape cases except reimbursement states, expense, at their own mother, permits of the but life id., abortions, the plain- “medically necessary” reimburse all great- afforded the New Mexico Constitution argued tiffs that law. Id. at 850. than the federal protection er providing ERA41 as the New Mexico interpreted The court escape that Rule 766 did not protection, that enhanced it on a merely physical because was based scrutiny heightened chil characteristic, and bear ability pregnant to become Id. Rule 854-55. Because dren, to females. unique necessity of medical the same standard apply 766 did not females, was unconsti presumptively the rule males and both ERA, compelling court found no and the tutional under Id. at 857. The court its the rule. based justification ERA; of the it behind the enactment reasoning on the intent Darrin, Ellis, 540 P.2d at N.E.2d at cited intent of the ERA was analysis, same that the adopted afforded already that something beyond to “provid[e] N.M. Protection Clause.” Equal language general Choose, Right P.2d at 851-52. The court said: state history of the text and of our Based on our review constitution, Equal Rights that Mexico’s we conclude New legal that prohibition provides is a specific Amendment gender-based consequences for the invidious remedy common law and under prevailed discrimination such, Equal preceded it. As civil law traditions judicial inquiry requires searching Amendment Rights II, incorporat- § Constitution Art. 18. The New Mexico 41. N.M. Const. protection. guarantees process equal its of due ed its ERA into entire section reads as follows: life, deprived liberty property without due person No shall be law; equal protection any person be process nor shall denied rights denied on account Equality of under law shall not be the laws. any person. The effective date of this amendment shall of the sex of July be

391 classifica- concerning employ gender-based laws that state that such begin premise must from the This inquiry tions. unconstitutional, and it is presumptively classifications are rebut presumption. burden to this the State’s 853. Id. at that 766 should not have been argued

The Rule Department at issue scrutiny to the classification subjected strict because thus, sex, to one unique on condition physical was based with similarly not be situated possibly males and females could Id. at The court conceded that to that condition. 854. respect unique characteristics physical “not all classifications based discrimination,” thus, are to one sex instances invidious classifications is unconstitutionality of such presumptive Brown, The supra empha- at 893. court rebuttable. Id. See sized, however, “similarly simply that situated” cannot mean trait, possesses classifying of the class every member test, every under would reason- because classification be Choose, Joseph N.M. at 854. Right able. to 975 P.2d See tenBrock, Equal Tussman & The Protection Jacobus (1949). Instead, Laws, L.Rev. the court Cal. ” “ ‘beyond classification of the law.’ purpose looked to the Choose, & Right quoting N.M. P.2d at Tussman I, tenBrock, supra, 346. Tree Md. at Burning at Accord (“[A]n facts, into the actual inquiry at im- discriminatory purpose determine existence of pact, appropriate.”). purpose statutory provide qualified

Because the was care, with medical court that men persons necessary found test general and women who met a need-based for Medicaid Choose, similarly situated, N.M. eligibility Right were P.2d at but that Rule a different standard of applied Id. necessity medical to women than to men. at 856. interests, Department alleged compelling two cost reduction life, protection potential and the but the court found them inadequate, and that Rule self-contradictory id. tailored to those interests. Id. narrowly achieving 766 was Jackson, (1997), Guard 132 Wash.2d 940 P.2d 642 Supreme Court of Washington addressed the constitution ality wrongful death statute42 required a father to have provided regular contributions to the of a support de ceased, illegitimate child as a prerequisite standing, have imposed but no such requirement on the mother. The court applied statute, the ERA to invalidate the and to sever the support provision, affirming the decision of the intermediate Jackson, court. appellate aff'g Id. at Guard v. 83 Wash. (1996). App. 921 P.2d 544

The court contrasted its standard of review of sex-based classifications with the more equal lenient federal protection standard,43 id. at and noted that under Darrin and the “ ERA, ‘the equal protection/suspect classification test is re placed by the single criterion: Is the classification sex ” discriminatory?’ Id. at 644. Noting there had been few exceptions to the ERA-mandated prohibition of sex-based id., classifications, the court held that the sex-based classifica tion in the wrongful death statute did not bear even a rational to the relationship statutory purpose excluding plaintiffs parents those who fail to support their children. Id. at 645. Supreme The Court of applied judicial Colorado “the closest scrutiny” under that state’s ERA44 to a sex-based classifica- statutory provision 42. The relevant stated: may The mother plaintiff or father or both maintain an action as for child, injury either, or death of a minor or a child on whom both, PROVIDED, dependent support: are for That in the case of an illegitimate join party child the father cannot maintain or as a an paternity duly action unless has been established and the father has regularly support. contributed to the child’s (1973). § Wash. Rev.Code 4.24.010 equal protection 43. Under the more analysis, lenient federal the Su- preme upheld Georgia Court wrongful has a similar death statute. Hughes, (1979). Parham v. 441 U.S. 99 S.Ct. 60 L.Ed.2d 269 plurality affirm, applied A of the Court rational basis review to because illegitimate their view mothers and fathers of children are not situated, 353-55, 1747-48, similarly 276-77; id. at 99 S.Ct. at 60 L.Ed.2d at judgment, Justice Powell concurred in the but would have 359-60, applied scrutiny. intermediate Id. at 99 S.Ct. at (Powell, J., concurring). L.Ed.2d at 279-80 Insur v. Travelers Rights Commission tion Colorado Civil (Colo.1988). The involved Co., case 759 P.2d ance administrative discrimi prohibitions against sex statutory whose health nation, employer group an allegedly violated for normal for incurred coverage expenses excluded insurance argued Id. The and childbirth. at 1359. insurer pregnancy women, because against not discriminate that the exclusion did but women protected no risk from which men were there was In not; however, Id. at 1363. disagreed. the court were stead, because the insurance the court found discrimination men, for including conditions plan coverage full provided susceptible, preg were but did not cover uniquely which men rejected a condition to women. Id. court nancy, unique all argument plan pregnant people that the health treated alike, recipient held class was and that the definition of “inherently discriminatory,” because the classification exclud expenses associated ed all women from reimbursement for only Id. at physiological with a condition that affects women. King County Singer E. v. and v. Hora Andersen Persuasive majority present

The in the case considers a number authority. op. cases from our states as See persuasive sister 265-67, out, many I pointed A.2d at 598-99. As have rights application equal these cases did not address the did, significant: Of two are amendments. those most (2006), County, Andersen v. 138 P.3d 963 King Wash.2d (1974). Hara, 522 P.2d 1187 Singer Wash.App. and juris there close ERA parallels Because have been between I, State, Tree prudence Maryland Washington Burning Rand, 95-96, 838-39; 512- A.2d at 280 Md. at 305 Md. interpreted A.2d at that State because has Const, II, rights § (“Equality under law shall not 44. Colo. art. abridged by any political be denied or the state of Colorado of its sex.”). on subdivisions account its ERA to be inapplicable to same-sex marriage, it is impor- tant to examine Washington case law in this area. in Maryland,

Unlike there legal was a challenge to the statutory ban on same-sex marriages Washington shortly after that Singer, adopted State its ERA. P.2d at 1187. Two men who had been a denied marriage sought license a court order to compel county license, official to issue the when the trial court denied their motion to show cause why issued, the license should not be the men appealed several first, grounds: they alleged the trial court erred construing the statute to prohibit second, same-sex marriage; the appel- lants claimed that marriage statute applied violated the ERA; third, appellants claimed violations of the Eighth, Ninth and Fourteenth Amendments to the U.S. Con- stitution. Id. at 1188-89. the relevant

During period, time the marriage statute stated as follows:

Marriage is a civil contract may which be entered into persons age of eighteen years, who are otherwise Provided, capable: every That marriage entered into in which either party shall not have age attained the of seven- teen years shall be void except where this section has been waived by superior court judge of the county which the female showing resides on a of necessity.

Id. at 1189 n. Wash. Rev.Code Section 26.04.010 2; (1970). Appeals Court of of Washington interpreted the statute to prohibit same-sex marriage, in relying part on the plain statute, of language which used the word “female” form, singular thereby “implying that a male was contemplat ed as the other marriage partner,” and relying also on the provided context by closely statutes,45 related which at several points explicitly referred Singer, to “male” and “female.” P.2d at 1189 & n. 3. The appellate court rejected then contention that the statute as applied violated the ERA. Id. at (1970) §§ 45. Wash. Rev.Code (prohibited 26.04.020-040 marriages); (affidavits license). § id. at required 26.04.210 marriage for issuance of state law to that “to construe argued The appellants 1190-95. deny the same time a woman but at marry a man to permit him man is construct an another marry the right ” sex,’ but the ‘on account of classification unconstitutional long “so as contention that agreed with the State’s court to both male female equally are denied marriage licenses Id. 1190-91. The ERA at was no violation. pairs,” there marriage was “the the definition of that court determined woman,” that, previous one union one man and legal of cases, the court in each case to “was deemed this definition at recitation.” Id. 1191-92. require so obvious as not to be that the had been denied appellants The then concluded court of recognized of the definition license “because marriage a only by into two may as one which entered relationship be sex,” of not “because opposite who are members persons thus, Id. sex;” was no sex-based classification. of their there Therefore, view, v. Loving Virginia, in the court’s at 1192. and Perez U.S. 87 S.Ct. at 18 L.Ed.2d at (1948), 711, 198 the seminal cases 32 Cal.2d P.2d Lippold, statutes, inapplicable. were anti-miscegenation

invalidating (maintaining n. 8 Loving 522 P.2d Singer, marriage change the basic definition Perez “did woman”). Finally, one court legal union of one man and ruling basis review to affirm the trial court applied rational constitutional issues. Id. at 1195-97. federal was faced recently, Supreme Washington More Court Singer. Andersen v. question with same addressed 963, a challenge Washington 138 P.3d at to the King County, (“DOMA”),46 Marriage the court considered the Defense of Act (“DOMA”) Washington Marriage amended two 46. Defense Act statutes; versions, part, are as follows: the amended relevant (1) Marriage a a a who is civil contract between male and female eighteen age years, attained the and who are otherwise have each capable. marriage Every into husband or the entered in which either the except age years wife void where has not attained the seventeen county superior judge this section has been waived court showing necessity. parties in which one of the resides on (1998). § Wash. Rev.Code 26.04.010

constitutionality of the marriage prohibition. same-sex The analysis court, court followed the ERA of the Singer stating: DOMA; Men are identically and women treated under nei- ther of may marry person the same sex. DOMA there- sex,” fore not make any does “classification and it by does on of sex. discriminate account Andersen, 988, citing 138 P.3d at 522 P.2d at Singer, 1195. In the this Andersen court respect, opinion echoes the of the See majority op. the instant case. 932 A.2d at difficulty inability lies in the Andersen the court issue; the true of the recognize nature classification at failing distinguish between sex-based classifications and orientation, grounded those sexual the applica- court avoids tion Andersen, of the ERA at the outset. 138 P.3d at 988 (denial of “not marriage license based on their sex upon but sex”), the fact were both they citing of the same Singer, 522 (“While P.2d op. at 1195. Cf. Family § Law does not sex, 2-201 draw distinction on based the legislation does implicitly differentiate on the basis of sexual In preference.”). all significant respects, the Andersen court thus, ERA adopted analysis Singer, makes the Furthermore, same errors. majority present in the case adopts analysis Andersen, therefore, Singer adopts those errors as well. view, my court in two Singer significant erred first,

respects: the court misconstrued nature classification established same-sex marriage prohibi- tion; second, the court analyzed impact the classifica- tion individuals, scheme as it applied couples, rather than and cited authority doing. no for so The Washington same-

(1) Marriages in following prohibited: are cases (c) parties persons When are other than and a a male female. (3) marriage persons recognized A between two is as valid in jurisdiction only marriage another this state valid in if the is not (l)(c), prohibited (l)(a), made or unlawful under subsection this section. (1998). § Wash. Rev.Code 26.04.020 sex, be- classify grounds marriage did prohibition sex a marry partner to permitted homosexual was cause a sex, of marrying partner from a prohibited but was opposite Indeed, 26.04.010 Rev.Code Section sex. Wash. the same classifica- by Singer the court effected a as construed Family in Law Section to that contained tion scheme identical Therefore, the court avoided Singer 2-201 in the case. instant analytical whereby an error the question though the ERA marriage of recognize that the definition court failed itself scheme, thus, a and the was of sex-based classification part under an incorrect standard of review analyzed court the issue under its own state law.

An drawn between interesting may Singer distinction be Singer case. Whereas the court defined present and the man one legal as union of one and woman” on marriage “the of statutory of law and the overall context the the basis case scheme, present 522 P.2d at the case differs because the 2-201 a a draws distinction between plain language Section woman, marriages and be marriage between man Furthermore, Section 2-201 tween men or two women. two two marriages the between clearly contemplates possibility women, for singles special it out treat men or two because a man a woman. “only” marriages ment those between Therefore, 2-201 itself refutes the language the Section does marriage necessarily notion that the definition of marriages.47 include same-sex analysis marriage

In of the same-sex impact its the appellants, Singer implicitly the the court prohibition theory relied adopted separate equal upon the but the (“[T]he in id. state majority Compare the instant case. to relief under the suggests appellants that are not entitled they showing they ERA have failed to make a because being differently by they the state than are somehow treated however, suggest, if were they Appellants would be females. Enterprises, holdings [Loving, ] that the Perez and J.S.K. argument plain meaning applies about the of Section 2-201 with The equal Washington force to the DOMAat issue in Andersen. v. City Lacey,[48] Inc. contrary position are to the taken with state. disagree.”), op. We A.2d (“[Family prohibits Law Section both men equally 2-201] conduct.”). Thus, from same women majority Singer present case commits the same error court: no order find sex-based classification the same-sex marriage prohibition, analyses both of a compare rights couple couple. male to those a female offers majority principled equal no for applying basis protection individuals, rather analysis couples than simple is no principled reason there basis for the obstacle, get distinction. order to around majority this posits the notion that Law Family facially Section 2-201 is neutral, hence, test for proper evaluating whether sex discrimination has occurred is to search for a discriminatory See 270-71, at 932 purpose. op. A.2d at 601-02. Having determined, view, mistakenly in my that Section does 2-201 sex, classify on basis majority the the then the reaches conclusion the purpose of the marriage prohibi same-sex “ tion cannot ‘designf be linked to a to] subordinate either ” to See 270, men women or women men as a at op. to class.’ Robles, 601, quoting49 Hernandez v. 338, 932 A.2d at 7 N.Y.3d (2006). 1, 821 N.Y.S.2d 855 11 N.E.2d Having avoided issue, the sex-based classification at no having found invidious purpose, majority present case to retreats rational basis review. See at op. 932 A.2d 595-98. In result, reaching this the majority breathes life into corpse separate but equal that in Burning this Court to rest laid II. It Tree say saddens me to that Judge Eldridge’s worst fears have now come to fruition:

The principal purpose opinion of this to respond is positions taken Parts Judge Murphy’s YI-IX Chief City Enterprises, Lacey, Wash.App. 48. J.S.K. Inc. v. 492 P.2d (1971), city prohibiting massagists performing a ordinance from opposite equal services for of the clients sex was on invalidated federal protection statutory grounds. and state Robles, 7 N.Y.3d N.Y.S.2d 855 N.E.2d Hernandez (2006), case, New marriage inapposite recent York same-sex the instant case New because York lacks an ERA. Court, though of the even announcing judgment opinion If the views set of the Court. opinion is not an opinion opinion Judge Murphy’s Chief forth Parts VI-VIII Court, of this majority adopted by in the future to be were Amendment to the Equal Rights of the the effectiveness substantially impaired. be Maryland Constitution would I, 501 A.2d at 835. Burning Tree 305 Md. Scrutiny Present Case

F. Strict action that that all state proposition stand Our cases distinctions, such ac regardless of whether sex-based draws entirely benefit or “directly conferts] a burden impostes] tion females,” 95, 501 A.2d at 838 id. at either males upon J.), ERA and must be Eldridge, implicates (opinion d.B., 399 In re Md. scrutiny. to strict See Roberto subjected (2007) (“This has 122 n. Court 267, 279 n. A.2d reviewing gender- scrutiny standard when a strict applied claims.”); 325 Md. at 357 n. Murphy, discrimination based (“In Equal Maryland, n. because 601 A.2d at 109 ..., classifi to the Constitution Amendment Rights subject suspect are strict gender on cations based II, 293, 554 A.2d at 386 scrutiny.”); Tree 315 Md. Burning (“In took the I], majority ... a of this Court [.Burning Tree which on its face legislation that the enactment of position action sex is state sufficient draws classifications based E.R.A.”). has never today, this Court shied invoke the Until Giffin, ERA. See applying standard when away from that (“[T]he 148, Rights] [Equal at 716 A.2d at 1037 351 Md. be, not, and can not a only mean that sex is Amendment can rights.”); of legal in the or the determination enjoyment factor (“[T]he 149, Rights 716 Amendment Equal at A.2d at 1037 id. classifications, absent substantial flatly prohibits gender-based enactments, justification, gov in legislative whether contained rules.”); or of common law policies, application ernmental 295, II, (“Plainly, Tree at 554 A.2d at 387 Md. Burning Court, providing for prior holdings of this state action under sex, justification, upon absent substantial segregation based E.R.A., race segregation upon based just violates Amendment.”); Rand, violates the Fourteenth 280 Md. at (“The 511-12, 374 A.2d at 902-03 words of the E.R.A. are clear unambiguous; say without they equivocation of ‘Equality rights under the law shall not be abridged denied of because sex.’ This language mandating equality factor.”). rights only can mean that sex not a In a recent case we reviewed the a constitutionality of statutory permitting challenges scheme50 paternity, applied scrutiny, d.B., strict In re Roberto 399 Md. at n. 923 A.2d at 122 n. to hold that the statutes must be construed a sex-neutral fashion. Id. at 923 A.2d at 124. face, On its Title Subtitle of the Law Family Article man, contemplated only right of a genetically found not child, petition linked to a a court to set aside a declaration paternity.51 applied We the doctrine constitutional avoid judicial ance to infer a gloss statutory scheme that was possibility silent to the gestational that a mother could chal lenge 278-79, 283-84, maternity. Id. at 923 A.2d at 124-25. analysis Our on unequal focused application woman, particular Subtitle 10 to a predicated was not aon group-by-group We comparison. held that the ERA mandat ed a the unequal focus treatment of an individual under the law; just as the Supreme applied Court strict scrutiny against state-sanctioned discrimination all persons of races on purportedly basis, Powers, equal 499 U.S. at 111 S.Ct. 425; L.Ed.2d at Loving, 388 U.S. at S.Ct. 1016,52 18 L.Ed.2d at so too have we held that the equal (1984, 50. Repl.Vol.), §§ Md.Code Family 5-1001 to—1048 Law Article. 5-1038(a)(2)(i) Article, 51. Family Section Law Code (1984, Repl.Vol.), part: reads in relevant paternity may A declaration be modified or set aside: genetic 2. if § a blood or test done in accordance with 5-1029 of this subtitle establishes exclusion of the named individual as the father order. Powers, suggestion "[t]he Court said that racial classifications may upon persons survive when visited all is no more authoritative

401 strict not discriminatory preclude of laws does application d.B., at 282- 46. In re Roberto 399 Md. under Article scrutiny 148-49, A.2d at 124-25; Md. at 84, A.2d at Giffin, 386-87; II, 293-95, 554 A.2d 1037; Tree 315 Md. at at Burning Rand, at 904-05. at 280 Md. of the case, argues on the basis

In the instant the State Section 2-201 does of the ERA that theory equal application brief, points the State to the In its Article implicate I, in Tree Judge Murphy Burning of Chief dissenting opinion 822, to its view that Section 64, support at 501 A.2d at 305 Md. burden both prohibitions muster because its passes 2-201 argument, quotes the State from To bolster its equally. sexes 1037, 149, which turn cites at 716 A.2d at Giffin, 351 Md. I. The Judge Burning Tree opinion Murphy of Chief from key “[T]he following portion omits the State Giffin: Maryland Equal the sexes demanded equality between ‘under the ‘rights’ individuals Rights Amendment focuses immunities, law,’ encompasses privileges, all forms which Thus, pas- Id. responsibilities citizens.” benefits argument; the State’s sage support from does not Giffin case, I explained in the as holding neither does the Court’s Furthermore, detail, great I explained as have previously. Tree I was a opinion Judge Murphy Burning of Chief effect theory scope minority view insofar its Therefore, the State’s is argument the ERA was concerned. Likewise, the reliance on misplaced. State’s fundamentally Cannon, v. 384 Md. 572 n. A.2d Cannon (2005), unpersuasive. Although Cannon was correct n. is theorem, Plessy Ferguson, today than the case which advanced the Powers, 537[, (1896).” 256] 16 S.Ct. 41 L.Ed. 499 U.S. 163 U.S. Loving, Court was 111 S.Ct 113 L.Ed.2d at 425. equal applica- emphatic, emphasizing proffer of equally that the State's scrutiny. from 388 U.S. at tion did not shield the statute strict ("Because reject we S.Ct. at 18 L.Ed.2d at 1016 notion that 'equal application’ containing racial the mere statute classifications enough to is remove the classifications from Fourteenth Amend- discriminations, proscription all racial we do not ment’s invidious accept upheld the State’s contention that these statutes should be if concluding any they possible there basis for serve a rational purpose.”). about inapplicability the of the ERA to the confidential rela- tionship and concomitant duty inhering disclose in antenup- agreements, tial the reason for the legally imposed duty arises out of principles fundamental of contract law. Id. at 556 n. 570-71, 865 A.2d at 573 n. (contrasting 582-83 antenuptial and post-marital and agreements, noting that ERA the invali- case). dated gender-based classification in only the latter summarize, To in a line of long extending cases back II, Gáffin, Condore, Burning Rand, I Tree Kline we have consistently the interpreted ERA to require that the rights any of person depend cannot on sex-based classifica- tions, unless the State governmen- demonstrates a compelling interest, tal only and then if the narrowly classification is precisely tailored and limited achieving compelling interest. Today this Court denies the commitment to equal rights by made the General Assembly by ratified the in People of this State As in Giffin, we said atMd. 148-49, d.B., 716 A.2d at in and iterated In re Roberto 399 Md. at 923 A.2d at 123-24: “The basic principle Maryland Equal the Rights Amend- thus, ment, is that sex not a permissible is in factor deter- mining women, the legal rights men, or so that the treatment any person may the law by not be based upon person circumstance that such one sex or the other!;] that amendment generally governmen- invalidates tal imposes on, action which grants to, a burden a benefit one sex but not the other one.” added). (emphasis this Clearly, language means that analysis must focus the individual whose rights are in- fringed classification, sex-based rights because accrue individual, not to or to some couples, group abstract entity. emphasized equal We rights between the sexes personal, are not group, rights: equality

“[T]he between the sexes demanded by Mary- Rights land Equal Amendment on ‘rights’ focuses of individ- law,’ uals ‘under the encompasses which all forms of privi- immunities, leges, benefits responsibilities citizens. absolutely forbids these, E.RA. As to law, bemay as accorded ‘rights,’ such determination sex, i.e., impermissible is an on the of one’s sex solely basis determination.” making any such factor at quoting Griffin, at 351 Md. A.2d Id. (alteration majority original). The at 1037 quoted passage deliberately case misconstrues present omitting the through conveniently quotation, selective above view of sentence, to its constrained support narrowly second “equal” but permitting separate the ERA somehow 258-59, 932 A.2d at op. of sex discrimination. matters See today until interpretation ignores Its what 594-95. strained in the ERA is intended to Maryland: well-settled had been of individuals, rights not “men and the of the rights address (emphasis See 932 A.2d at op. women as classes.” Rand, in original). predecessors in stated a similar idea Our 511-12, 374 A.2d at 902-03: 280 Md. they unambiguous;

The words of the E.R.A. are clear and under the say equivocation “Equality rights that without abridged law or denied because of sex.” shall not be unambiguous I of the ERA are clear and repeat: words only rights can mean that the under the law any person The abridged majority today because of sex. cannot be jurisprudence a that our case pursues results-based distorts ERA, in its effect. construing doing, law so dilutes Against Arguments II. The State’s Applicability of Article The its argument against application State focuses most of ban, I scrutiny marriage of strict the same-sex and address First, legisla- arguments argues those now. the State that the history Family tive of Article 46 and Law Section 2-201 compels marriage the same-sex ban is conclusion constitutional. Article voting surrounding State to the records points

46 of 1 of Article Rights the Declaration Section (1957, Maryland Repl.Vol.), predecessor Code 2-201,53 Family Law Section to conclude that the framers the ERA understood and intended marriage same-sex Thus, ban compatible was with the ERA. in Bill House 687, a measure to the ERA Maryland add to the Declaration of Rights, passed the Delegates by House of overwhelming margin Maryland see House Journal 1281-82 (Mar. 22, 1972); the in Senate voted 39-0 favor. See 1972 1972). Maryland Senate Journal 1899 (Apr. legislature passed same Senate Bill a measure adopting marriage same-sex ban. The passed measure the House by 112-1, see 1973 House Journal 2743 (Apr. 1973); in the Senate voted 37-1 favor. See 1973 Maryland (Jan. 1973). Senate Journal 273 Detailed comparison the roll call votes indicates that 94 Delegates voted favor of measures; both if Delegates who but co-sponsored did not included, vote for the ERA are then the total number of Delegates favor of both the ERA and the same-sex mar riage ban was 100 Senators, out a total of 142.54 Out of 43 33 voted both for the ERA and the same-sex marriage ban. From these facts the State concludes that legislators “those who approved [the 1972 did see anything ERA] incon sistent about their decision 1973 to vote legislation for that the clarifying State recognizes only marriage between man and a woman.”

The difficulty with this argument First, is two-fold. State offers no basis the situation distinguishing involving Laws, Maryland 62, Chapter 53. 1973 213 amended Section of1 Article (1957, Maryland Repl.VoL), "Only Code 1972 marriage to read: a between man any a and a woman valid person is in this State. If marry any within State degrees this shall within of the of kindred or table, affinity expressed following marriage in the the shall be void.” (1957, 62, Repl.VoL), See § Md.Code "following 1979 Art. 1. The table” (recodified refers to 2 Section of Article 62 2-202 Section of the Article), Family prohibited Law the degrees statute that lists the of consanguinity affinity. and The first sentence Section 1 Article 62 statute, is identical the Family current Section 2-201 of the Law Article, (1984, Repl.VoL). Code 2006 1972-73, 142, Delegates 54. In the total number of was and the number Law, 785, Chap. Senators was 43. See 1969 amending Md. Md. Const, Ill, § art.

405 Assem enacted General statute55 the unconstitutional ITree from that which Burning in in 1974 and invalidated bly 870, discriminatory Clearly Chapter here. presented I, nearly in Tree was Burning provision anti-discrimination 46; Article of Article and with Section contemporaneous temporal mere nevertheless, seriously no one contended The State from invalidation. Chapter save nearness could contemporaneous enactment nearly is forced to combine ERA with the additional marriage same-sex ban in Hornbeck v. elaborated interpretation rule of constitutional Education, 295 Md. County Board Somerset (1983): 758, 770 A.2d a contemporaneous it has held that regard, this been particular Mary- placed upon provision

construction legislature, acquiesced and acted land Constitution questioned, ever been followed continu- upon having without furnishes a uniformly very early period, from a ously rightly interpreted. the intention is strong presumption that in the context. The unpersuasive present I find this argument only in the instant case extends relevant time frame adoption because very early period,” “[t]he “a did, to, drastically alter E.R.A. this state was intended validity of sex-based classifications.” traditional views of Therefore, Rand, at 374 A.2d at 905. 280 Md. always recognized only marriage undeniable has been fact woman, undoubtedly “ac- although between a man and upon having ques- without ever been and acted quiesced tioned, uniformly very early from a continuously followed legal weight no of the ERA greater light carries period,” pre- law rules and the multitude of sex-based common than See, e.g., invalidated since 1972. sumptions that have been Condore, 1029; at A.2d at 289 Md. at Giffin, 351 Md. Kline, 929; 1011; Md. 414 A.2d at at A.2d Rand, 374 A.2d at 900. 280 Md. I, Laws, Chap. Burning Md. 870. See Tree 305 Md. at

55. 1974 A.2d at 817. vein, In a related argues plain meaning State that of Article 46 and the case law it interpreting foreclose the interpretation given by the Appellees adopted by Court, Family Circuit Law Section 2-201 classifies on the view, basis of sex. In the facially State’s Section 2-201 is neutral and does not sex simply constitute discrimination. argument State’s focuses on discrimination based on orientation, sexual a classification within indisputably scope of Relying Section 2-201. on the statutory scheme Relations, established the Commission on Human Article 49B, (1957, Maryland RepLVol.), amended, Code Laws, 340,56 Chapter the State maintains that General has Assembly ability demonstrated its repeatedly distinguish orientation,” “sex” from “sexual Arti because orientation,” cle is silent on “sexual logical is conclusion Family Law Section 2-201 was never fall intended to Representative excerpts from some of these statutes include: (a) subheading, "Sexual orientation” this "sexual orien- defined.—In tation” means the identification of an individual as to or male female homosexuality, heterosexuality, bisexuality. or (b) operator place Prohibited.—It is unlawful for an owner or of a public agent employee accommodation or an or or owner creed, race, sex, color, operator, age, origin, because of the national status, orientation, disability any person, marital sexual or refuse, from, deny person any withhold or to such of the accommoda- tions, advantages, privileges place public facilities of such accommodation. (1957, 49B, Repl.VoL), § Md.Code Article 5. From a related prohibiting public statute discrimination accommodations: (a) business, any general.—It person, corporation, unlawful for partnership, individual, copartnership any or association or other agent, employee, group regulated by firmor which is licensed or Labor, Department Licensing, unit in the Regulation as set out refuse, § Regulation in from, 2-108 of the Business Article to withhold accommodations, deny against any person or discriminate facilities, sales, advantages, race, privileges, or services because of the sex, creed, color, status, orientation, origin, national marital sexual or disability any person. color, "race, phrase, § ancestry Id. at 8. Section 14 uses religion, sex, status, orientation, origin, age, national marital sexual or disabili- ty,” policy governing in a employment declaration discrimination. language enumerating Section 16 uses similar related statute practices. employment unlawful Sections 19 and use similar lan- guage housing in the context of discrimination. this adopts The majority of Article scope the inside contention accept [Appellees’] stating that “[t]o interpretation, sex basis of § 2-201 the Law discriminates Family scope beyond of ERA the the extend the reach would be to State’s Assembly and the General intended ratified, the amend respectively, and voters who enacted 264-65, A.2d 598. at 932 op. ment.” See of to the question irrelevant entirely argument This Article under constitutionality of sex-based classifications majority hence, herring. Although is a classic red 2-201 draws classifications Family Law Section asserts that actually orientation, on its face the statute based on sexual sex, Section not sexual orientation. classifies on the basis fact, a marrying; homosexuals from prohibit 2-201 does not a or homo- marry either heterosexual may male homosexual a female, may marry female either homosexual sexual per- virtue of a Only or homosexual male. heterosexual marrying person he from prohibited sex is or she son’s 2-201 based Section draws distinctions Clearly, the same sex. thus, simply does the issue of sexual orientation on sex and an ERA analysis. not enter into 2-201 present allege in the ease Section Appellees effect, alleged facial discriminatory regardless its

has a decision neutrality, Supreme and that the landmark Court 1010, 1817, 18 at at at L.Ed.2d Loving, 388 U.S. S.Ct. involved State Loving control the outcome here. should neutral, allegedly generally applica an analogous assertion of Id. 87 S.Ct. at miscegenation. at prohibiting ble statute scrutiny to 1818, 18 applied at 1012. The Court strict L.Ed.2d its Virginia despite ostensibly equal application statute (“In Id. at 18 L.Ed.2d at both races. 87 S.Ct. bar, containing ... racial the case we deal with statutes classifications, equal application and the fact does justifica very heavy from the burden of immunize the statute re traditionally has tion which the Fourteenth Amendment race.”). only Not according statutes drawn quired state weigh long history supremacy of white did the Court State, heavily but the Court segregation against racial anti-miscegenation found the only statute applied interracial whites, thus, marriages involving facially was not neutral by Virginia. as asserted Id. at S.Ct. at L.Ed.2d at 1017-18. The Court reached its holding indepen dently intent, of discriminatory however, the issue “find[ing] racial classifications statutes repugnant these to the Amendment, Fourteenth even an assuming even-handed state purpose protect ‘integrity’ of all races.” Id. at n. 87 S.Ct. at 1823 n. L.Ed.2d at Clearly, 1018 n. 11. Court no legitimate purpose found the racial classifications themselves, regardless of the proffered justification. Id. at (“There 87 S.Ct. at 18 L.Ed.2d at 1017 is no patently legitimate overriding independent purpose of invidious racial classification.”). justifies discrimination which this The attempts State to distinguish Loving from the instant on case the basis the same-sex ban marriage does not evince the to impose intent segregation based sex. The amici, position State’s is reinforced Catholic Conference, argue who that “anti-miscegenation statutes were intended keep persons of separate; races marriage different statutes, hand, on the other are intended to bring persons of sex opposite together.” (emphasis original). This argu begs question ment whether Family Law Section 2-201 is facially neutral; it is question well-settled that the of discrimi natory intent does arise unless the threshold of question neutrality See, facial is answered in the affirmative. e.g., Cromartie, 541, 546, 119 Hunt v. 1545, 1549, 143 526 U.S. S.Ct. (1999) (“When L.Ed.2d racial classifications are ex plicit, no into inquiry legislative purpose is necessary.”); Shaw Reno, 630, 642, 2816, 2824, 509 U.S. 113 S.Ct. 125 L.Ed.2d (1993) (“No 511, 525 inquiry legislative into purpose is neces sary when the racial classification appears on the face of the statute.”).

Here, no plausible there is assertion that Section 2-201 accrues to the benefit of only either men or women a class. Rand, Kline, Condore, as in Just Burning I Giffm, Tree however, is there sex discrimination at the of level the individ- ual who marry precluded wishes to but is doing from so marry Thus, wishes to a man who statute. because partner marriage choosing from his prevented man is another likewise, who sex; a woman wishes on the basis purely her mar- choosing prevented from marry another woman is Manifestly, Section on the basis sex. riage purely partner sex; it would be because 2-201 classifies on basis only intent if legislative necessary underlying consider the distinc- marriage did not draw sex-based the same-sex ban as in tions, legislative intent is irrelevant. Just question themselves that it the nature Loving, is classifications scrutiny. implicates strict Application of the Correct Standard

III.

to the Instant Case 2-201 Family Law Section I now to consider whether turn a man a woman is valid this marriage between (“Only State.”), statutory A classification scrutiny. survives strict it only if upheld scrutiny “further[s] under strict will be suitably, interest,” “if it deemed to be compelling state Koshko v. achieving goal. narrowly, tailored” (2007); 404, 438, 921 A.2d Burning Md. Earning, 398 Hornbeck, 387; E, 295 Md. Tree 315 Md. at 554 A.2d at strength of the 641, 458 A.2d Regardless stake, statutory classifications sub interest at governmental “ ‘ compelling “fit” so scrutiny goal to strict must this ject that the motive for possibility that there little or no closely is or prejudice ... stereo illegitimate the classification was ” Pena, Constructors, 200, v. 515 U.S. Adarand Inc. type.’ 158, (1995), 226, 2097, 2112, quoting 132 L.Ed.2d 181 115 S.Ct. Co., 493, 706, 469, 109 J.A. 488 U.S. S.Ct. Richmond v. Croson (1989). 721, 854, words, the “classi In other 102 L.Ed.2d 882 greater any ‘fit’ with than precision fication at issue must Educ., v. Jackson Bd. 476 Wygant alternative means.” 260, n. 90 6, n. 106 1850 L.Ed.2d U.S. 280 S.Ct. (1986), Ely, Constitutionality citing 272 n. 6 John Hart Discrimination, 41 727 n. U. Chi. L.Rev. Reverse Racial (1974). 26

An of a example compelling state interest that survived scrutiny strict under the ERA is the sex-based classification in scheme inherent the crime of rape. At common law and statutes,57 the current it impossible under is for a woman commit degree rape first or second other as a principal than degree, vaginal the second required,58 because intercourse is see, State, e.g., 510, 517-18, Wilson v. 132 Md.App. 752 A.2d (2000); nevertheless, this sex-based distinction has See, Green, upheld scrutiny. been under strict e.g., People (1973) 183 Colo. P.2d Colorado (upholding See, (2002, e.g., Supp.), § Md.Code 3-303 Criminal Law Article, "Rape degree,” entitled in the first which states in relevant part: (a) person may Prohibited.—A not: (1) force, engage vaginal by intercourse with another or the threat force, other; of (2) without the consent of (i) employ dangerous display weapon, physical object or a or a reasonably dangerous weapon; victim believes is a suffocate, (ii) strangle, disfigure, physical injury or inflict serious crime; committing the victim or in the another course of (iii) threaten, fear, victim, place or the victim in that the an or victim, death, imminently individual subject known to bewill suffocation, strangulation, disfigurement, physical injury, serious or kidnapping; (iv) another; while commit crime aided and abetted or (v) first, burglary commit crime in with a connection in the second, degree. or third Article, Similarly, "Rape Section 3-304 of the Criminal Law entitled degree,” part: the second states in relevant (a) Prohibited.—A.person may engage vaginal intercourse with another: (1) force, force, other; or the threat of without the consent of the (2) individual, mentally if the is mentally victim a defective a inca- individual, individual, pacitated physically helpless or a and the person performing reasonably the act knows or should know that the individual, mentally victim is mentally incapacitated defective a individual, individual; physically helpless aor age if years, the victim under person is and the performing years the act least older than the victim. Despite "person” proscribed, term sex neutral whose behavior is only "person" the context makes it clear that capable of the State, enumerated crimes 337-38, See Md.App. is male. Brooks v. 670, 672, denied, (1975). cert. 275 Md. 746 vaginal required, necessarily 58. Because "[pjenetration, intercourse is slight” is however "an rape.” Craig essential element of the of v. crime State, 546, 547, (1957). 214 Md. 244 ERA challenge). an rape against statute59 up classifications that were of sex-based examples Other analysis prohibitions public include under an ERA held breasts, City of female Seattle nudity display that prohibit of (1978); Buchanan, City v. 90 Wash.2d P.2d of Sachs, 24 (App.2004); 135 N.M. 92 P.3d v. Albuquerque State, (Tex.App.1995), v. 904 S.W.2d 178 affirma Messina designed past to alleviate the effects of programs tive action Comm’n, 447 Mass. Brackett Civil Serv. discrimination. (2006); Elec. Chapter, S.W. Wash. Nat’l 850 N.E.2d 109, 667 County, 100 Wash.2d Ass’n v. Pierce Contractors (1983). Thus, scrutiny strict sex-based classifica P.2d 1092 “strict in but always theory, ERA need not be under the tions 2117, 132 Adarand, 237, 115 at 515 U.S. at S.Ct. fatal in fact.” omitted) (citation minority set- (holding L.Ed.2d “be scrutiny, emphasizing but pass must strict asides inter compelling state nign” may discrimination constitute a est). following degree rape appellant of first under the

59. was convicted statute: intercourse, with, accomplished Rape Rape.—(l)(a) an act of sexual is or person female male and female or between a male principal person is the wife of the persons, where such female not offense, distinguished accessory to under perpetrator, from such following any of the circumstances: unmarried, (b) By person person where the is the male female under, person person male is is and the over where the female eighteen rape degree. age years; first and this is in the Green, (1973); People v. 514 P.2d Colo.Rev.Stat. Colo. (1963). 40-2-25(l)(a)-(b) charged only § A female could be under (k) degree crime of third of the same statute for lesser subsection rape: (k) person being accessory as By age, an the female whatever section, (1)(/), person male of this where the defined in subsection eighteen years, age where sexual is had such intercourse under solicitation, inducement, importuning such connivance of at the person, person female was at the time female or where such offense, free, common, public or clandestine commission of such was, up person prior and to the time of prostitute, and the male offense, character; rape good and this is commission of the moral degree. in the third Green, 40-2-25(l)(k) (1963). 770; § Colo.Rev.Stat. P.2d 412 early protection

Because the cases examined equal typically classifications, subsequent racial in of jurisprudence the area gender necessarily analogized precedents discrimination to the point discrimination. attack involving by oppo racial One of nents for equal rights emphasize women has been to classifications; limitations between race analogy and sex equal opponents distinguished have rights racial discrimina tion from sex-based discrimination of the inherent basis Brown, supra See the sexes. differences between at 893-96. also 515, 533, 116 Virginia, See United States v. 518 U.S. S.Ct. “ 2276, 135 L.Ed.2d 752 that ‘inherent (noting ” are longer differences’ “no as a for accepted” basis racial classifications, national but that origin “[pjhysical differences between men and women ... enduring”). are Evolution of been, measure, the law this area has in no small process truly sifting gender substantial differences from distinctions but in masquerade reality embody as such “tradi merely tional, inaccurate, assumptions often proper about the roles of Hogan, women.” Miss. Univ. Women v. men and U.S. 458 718, 726, 3331, 3337, (1982). S.Ct. 102 73 L.Ed.2d 1099 The movement the several among equal rights states to enact motivated, was amendments part, counteract the tenden cy courts extend sexual stereotypes deference to cloaked supra Brown, truly substantial differences. at 879-82. Marylanders There can no overwhelmingly be doubt enactment of the ERA. See adopted approach through this Rand, 515-16, (“[W]e at 280 Md. 374 A.2d at 904-05 believe ... are people Maryland fully rights to equal committed for men women. The adoption the E.R.A. this state to, did, drastically was intended alter traditional views of classifications.”). the validity of sex-based The only operative distinction between sex-based and race- based classifications obtains from “the inherent differences thus, sexes”; between the some may sex-based classifications survive scrutiny comparable strict “whereas race-based classi- I, Tree fications could not be sustained.” Burning 305 Md. However, 501 A.2d this distinction has been narrowly, construed generally applying only to cases of obvi- ERA been example, For has ous anatomical differences. for each sex separate bathrooms interpreted permit accommodations, 840 & n. at 98 n. 501 A.2d at id. & public State, 24 men. Brooks v. punish only statutes that rape denied, 334, 337-39, cert. A.2d Md.App. (Md.1989). (1975); 19, 22 See also Gen. Op. Att'y Md. Green, (1976); P.2d 1281 Barger, 191 Colo. People v. if anything, Judge Murphy suggested, at 770. Chief P.2d differences” of the “inherent an even narrower construction I, Md. at Burning See Tree exception scrutiny. to strict on account 3,n. 501 at 822 n. 3 treatment (“Disparate 64 A.2d is unique generally to one sex physical characteristics amendments.”). rights the reach of regarded beyond equal (“The Brown, legal principle fundamental supra Accord 893 Amendment, then, is that the law the underlying Equal Rights individuals, with a with attributes of not particular must deal impermissible attribute on the broad and classification based however, not preclude legislation does principle, of sex. This action) account, (or regulates, takes into other official which to one unique with characteristic physical otherwise deals sex.”). implications the “inherent differences” between for case are There present

males and females the unclear. argument would be a colorable traditional appear to marriage recognition reproduc- arose of an inchoate out thus, species very tion of our future existence inextricably is linked to the interest society, promoting state stable, with the nurturing beginning the formation of families sexual union of a man a woman. Fomshill v. intimate (1828) 479, 1 consid- (“Marriage Bland 481 has been Murray, among important ered all nations as the most contract into enter, which individuals can as the child civil parent added). (emphasis society.”) regard Burning Tree cases tailoring,

With to narrow concept through opposite. themselves illustrate the its exact in Burning The anti-discrimination invalidated Tree provision II, instance, sex “permitted] engage periodic a club to all”; any any discrimination in of its facilities for reason at tailoring the statute failed consequently, require- the narrow 296, ment. Md. at A.2d at 387. The touchstone of whether, “other, tailoring narrow when faced with reason- ways able with a goals [its] achieve lesser burden on constitutionally protected activity,” rejected the State has “the way greater interference” and chosen instead least its interest. Dunn v. Blum- further burdensome means to stein, U.S. 92 S.Ct. 31 L.Ed.2d (1972).

It is critical to bear mind the allocation of burdens under the various equal protection Regardless review standards. standard, the applicable plaintiff always bears initial just of production, burden as in other civil any cause. Under review, plaintiff rational basis also shoulders the burden of persuasion, because rational presumes basis review validi See, Doe, e.g., Heller ty challenged classification. 312, 320-21, U.S. S.Ct. 125 L.Ed.2d (“A State, moreover, has no obligation produce evidence to sustain the of a rationality classifica statutory tion____A presumed constitutional, statute is bur ‘[t]he legislative den is the one attacking arrangement negative every it,’ conceivable which might support basis record.”) whether or not the basis has a foundation in the (citations omitted) (alteration in original). Under both inter scrutiny, hand, mediate and strict the govern on the other ment has the burden of justifying classifica challenged See, e.g., California, Johnson v. 499, tions. 543 U.S. (2005) (“Under S.Ct. 160 L.Ed.2d strict scrutiny, government has the of proving burden that racial classifications ‘are narrowly tailored measures further ”), Adarand Con governmental compelling quoting interests.’ structors, Inc., 515 U.S. at S.Ct. 132 L.Ed.2d United v. Virginia, 182; States 533, 116 518 U.S. at S.Ct. at (Under 2275, 135 L.Ed.2d at 751 scrutiny, intermediate “[t]he of justification burden is and it demanding entirely rests Hornbeck, State.”); 295 Md. at 458 A.2d at 781 (“Laws which subject are scrutiny] [strict violate the equal protection guarantee unless the State can demonstrate compelling governmental promote a necessary the statute is interest.”). (1) are in the brief asserted State’s compelling

The interests mandated marriage of as that the same definition maintaining (2) (2006); ensuring that DOMA, § 7 1 U.S.C. Federal through public vigorous changes adopted cultural be dramatic (3) decisions; and maintain- culminating in legislative debate is marriage of it so because ing the traditional institution and traditions. history our deeply ingrained general policy expresses public The first state interest our sister states and the comity relations with promoting comport undoubtedly that interest could government; federal review, conform because the desire to with rational basis has been a jurisdictions with of other Maryland laws those many areas of law. jurisprudence touchstone of our See, Article, Law e.g., seq. Family 9.5-101 et Section (1984, Uniform Maryland (Maryland Code 2006 Repl.Vol.) Act); 7- Custody Jurisdiction and Enforcement Section Child Article, Maryland et the Criminal Code seq. Procedure (Uniform Act); 11- Postconviction Procedure Section Article, et Code seq. Maryland Commercial Law Act). (1975, Repl.Vol.) (Maryland Uniform Trade Secrets policy promoting uniformity confined our law; replete our with where we statutory cases are instances our guidance interpreting look to our sister states for own See, I, 66-70, Burning common law. Tree Md. at 95- e.g., illustrating examples 501 A.2d at 838-40. The literally too point are numerous to mention. difficulty

The fundamental with the State’s how- argument, ever, case, is that it has nor am I aware of a pointed no case, single where held that the desire to this Court has jurisdictions conform laws to of other rises to the our those Indeed, position level interest. State’s compelling hierarchy, inverts the values legal the fundamental because take precedence embodied in the Constitution over The every Assembly. only recognized Act of General case, is where our exception, inapplicable present to the U.S. Constitution itself. Romer conflicts with organic law Evans, v. (1996) 620, 116 1620, 134 517 U.S. S.Ct. L.Ed.2d 855 (state prohibiting any governmental constitutional amendment protection action to afford to held homosexuals violation Hunter, Clause); Fourteenth Amendment Equal Protection 227, 233, 471 U.S. at 227- S.Ct. 85 L.Ed.2d at (facially provision neutral state constitutional disen disproportionate franchising numbers of African-Americans held in Equal violation Fourteenth Amendment Protection Clause). argument State’s that there is “a compelling interest

ensuring that social and economic of this is change type debate, accomplished through public robust through legislative without If to process” wholly merit. we were accept argument, would ignoring this we be the fact that public “robust debate” in the adoption resulted the ERA. Moreover, the lone Maryland by pertain case cited the State Gudis, Ass’n deference, Sugarloaf Citizens ing legislative (1990), 319 Md. 573 A.2d 1325 is easily distinguished from case, the instant a county because that case dealt with ethics authority law to confer purporting legisla a court void thought public tion it required, whenever interest so which we violated powers determined the constitutional separation mandated Article by Rights. 8 of the Declaration of Here action; we deal challenge legislative with constitutional our authority construe the Constitution is man IV, dated Article of our Constitution. See Section State, Galloway v. Md. Legislative, powers

60. "That the Executive and Judicial of Government other; ought separate to be forever and distinct from each and no person exercising Departments one functions of of said shall assume Const., discharge any Rights, the duties of Md. other." Decl. of art. power 61. "The State Appeals, Judicial of this is vested a Court of appeal Assembly may such intermediate courts of as the General create law, Courts, Courts, Orphans’ Circuit and a Court. District These Record, Courts shall be Courts of and each a seal shall have to be used Const, IV, process issuing in the authentication all from it.” Md. art §

417 of the (“If, however, ‘mandatory provision’ a statute violates a unconsti an act Constitution, are to declare such required ‘we ”). well-settled has been proposition and void.’ This tutional statehood; year before days our one since the earliest of Cranch) (1803), (1 Madison, 137, 2 L.Ed. v. U.S. Marbury of Gener Townley Chase the Judge Chief Jeremiah in terms that judicial the of review al stated doctrine Court today: still ring true the acts validity on the of determining finally of power with be- Legislature,

of cannot reside the Legislature the all the nugatory, and render power cause such would defeat Legisla- of the authority limitations and restrictions on the ture, govern- form of Rights the Bill of and contained ment, validity of of their they judges would become the acts, despotism, and subvert own which would establish Constitution, of declares that principle that the which great law, making, executing of shall powers judging, other. be and distinct from each separate It of the to decide all province is the office Court them, questions judicially brought of law which are before according to the established mode proceeding, Legislature, whether Act of the which as- determine an law, garb and is with the appearance sumes the of a clothed power made vested authority, pursuant is in the for if it not the result of Legislature; Constitution is Constitution, from it is authority emanation derived law, judgment and cannot of the Court in not influence question before them. the decision Polk, (1802). H. & J. 243-44 Whittington posed “direct argument public’s The final the State marriage impor- “as an institution transcendent interest” Picarella, Md.App. welfare.” Picarella v. tance to social alia, 499, 504, (1974), to, Foms- citing inter hill, Indeed, predecessors Bland at 479. our Fomshill view expressed “[mjarriage has been considered all among nations as the most important contract into which enter, individuals can parent as the the child of civil Thus, society.” Bland at 481. it recognized has been from time immemorial that marriage preceded legal its recognition; i.e., marriage originated organic as an constituent society predated development system. the legal Undoubt edly, until the recent advances assisted reproductive tech nology, imperfect there was close albeit fit opposite- between sex marriage and the inherent biological reproduction fact that species our could result from only the sexual union aof man and a woman. “What had not been fathomed today,” exists d.B., In re Roberto however. 399 Md. at 923 A.2d at 122. The correspondence opposite-sex between marriage and bio logical necessity has never been more tenuous than it is today. always What had been an fit imperfect between marriage procreation62 is now called question. into

Although infertility is not a bar to marriage, it is nonethe- less true that traditional marriage remains the only way to create families which children are biologically related to both parents. Certainly it is true that opposite-sex couples can and do cohabit and produce and thus offspring create non- families, traditional very but that points fact to the substan- tiality 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 the State is that this has posed interest been successfully defended See, only under the deferential e.g., rational basis standard. Andersen, 982-83; Hernandez, 138 P.3d 821 N.Y.S.2d Likewise, 855 N.E.2d at 7. argument that the State has an interest promoting marriage between opposite-sex couples because their careless sexual pose significant unions possibil- ity creating offspring and all the attendant burdens and marriage 62. The fertility age statutes are silent about and maximum (1957, requirements parties. Repl.Vol.), § of the See Md.Code 2- Family ("Marriages 202 of the Law Article degrees within certain void; relationship penalties."); §§ ("Marriages id. at 2-301 to—302 Minors.”). insanity Certain capacity appears Even as a bar to in the ("Absolute only by implication. divorce.”). § statutes Id. 7-103 duties, without couples reproduce whereas same-sex cannot extensive, evinces a far outside intervention that expensive commitment, has been greater responsibility level of scrutiny. rational basis Morrison Sad upheld only under ler, 15, 24-25 (Ind.Ct.App.2005). 821 N.E.2d 2- why assert a number of reasons Section Appellees rationally legitimate governmen- does not even further a interest, interest any compelling thus to refute purport tal theory the State on the that failure to survive presented by strict obviously implies test failure under the most deferential as far as it scrutiny. Logically theory is unassailable underlying but the do not address a crucial goes, Appellees dispose opponent’s arguments, in order to of the assumption: in the first to address each necessary actually it is instance argument. Many arguments disposed opposing almost would fail under the strict Appellees’ certainly brief Thus, scrutiny arguments mandated under Article 46. marriage promotes savings the same-sex ban cost or that the justified obviously grounds “legislative hegemony” ban Indeed, such scrutiny. approach fail strict assertions level arguments, undoubtedly applicable of straw man a status for its own supposed state interest “discrimination Appellees dispute sake.” The also the notion that the same- marriage rationally legitimate sex ban furthers a state interest welfare; in Appellees ground, child here the stand on shakier fail quite possibly would to sustain their burden the if However, standard were rational basis review. the correct is for the scrutiny, greater standard strict a much burden State. arguendo

Let us assume that the State has failed to meet its “other, burden to demonstrate that there exist no reasonable “a lesser ways” posing constitutionally protected burden Dunn, activity,” U.S. at 92 S.Ct. at 31 L.Ed.2d in undoubtedly to further the substantial state interest promoting child welfare. At this there still stage remains possibility that the are Appellees wrong their assertion judicial there is no causal link recognition between of same-sex behavior of marriage opposite-sex couples, argu- and the an amici, The American with force particular ment asserted repro- of assisted phenomena Center for Law & Justice. are so new and radical marriage duction and same-sex support far to or refute there exists no evidence thus far, effects. Thus link and concomitant external asserted its have done argument favorably this weighed courts that have Hernandez, See, review. e.g., rational basis so under Andersen, 7-8; P.3d at 855 N.E.2d at N.Y.S.2d marriage ban contention that the same-sex 984. The State’s itself, nature of and that marriage from the organically arises 2-201 by Section accomplished the much later codification in “the historic society’s compelling interest merely clarifies protecting progeny family unit as mechanism unions,” actually pro- asserts the state interest biological Dep’t orderly, society. Goodridge an stable See moting Health, N.E.2d 997 & n. 20 Pub. 440 Mass. (“Tt J., important distinguish is (Cordy, dissenting) from the social inter- individual interests in domestic relations ”). institutions.’ On family marriage est in the as social record, has party I believe neither present state of the an of such in the issue explored depth appropriate this issue magnitude. permanent, transcendent will justice to order a remand so “that authority Under our further Md. Rule 8- proceedings,” be served by permitting a full 604(d), this case to the Circuit Court for I would remand an ultimate expressing opinion evidentiary hearing. Without burden, I could meet its believe on whether the State societal regarding unrebutted contention the broad State’s presents an issue of retaining marriage interest traditional any “If there issue of requires fact that a remand. triable to be determined remaining fact of and undisposed evidence, summary upon weight trier of the facts Co., R.R. can not Tellez v. Canton judgment granted.” be (1957). 423, 431, light Especially Md. here, I presented dimension grave issues of constitutional on the basis of it to reach this issue inappropriate believe v. County record. undeveloped Montgomery such an See Inc., 457, 995, 438, 758 1005 360 Md. A.2d Equities, Broad.

421 (2000) (“[T]he exception constitutional to the exhaustion re- quirement apply challenge does not when the constitutional a statute ‘as a whole’ involves the need for some factual may which be exploration, necessary statutory when classifica- challenged equal protection grounds tions are or under Maryland Article 46 of the Rights.”); Declaration of Ins. 596, Comm’r v. Equitable Soc’y, Assurance 339 Md. 623- Life (1995). 24, 862, 664 A.2d 876 I Consequently, respectfully dissent from the majority opinion. Judge

Chief BELL has joins authorized me to state that he dissenting opinion. this BELL, Dissenting Opinion by C.J.

I join Judge Judge Battaglia BATTAGLIA’S dissent. As correctly carefully explains,1 sex-based classifications are law, analogous to race-based classifications and Maryland law, by refusing unlike federal to apply scrutiny intermediate classifications, to the review of sex-based does not draw a Club, distinction between them. In State v. Tree Burning Inc., 254, 294, 366, (1989), 315 Md. 554 A.2d this Court justifying held that the burden of sex-based classifications falls State, upon the and that the scrutiny level of to which the subject classifications are scrutiny is “at least the same Crane, racial classifications.” See also v. 351 Md. Giffin 148, 155, (1998) (holding that the Equal Rights Amendment plainly prohibits sex-based classifi cations, Edmonds, justification); absent substantial Murphy v. Judge Battaglia fully analyzes, explains, why, Mary- also under law, (1957, Repl.Vol.) Family § land Code 2-201 of the Article, Deane, Conaway Law creates a sex-based classification. v. 219, 277-86, (2007). Md. simply A.2d 605-11 stated As in a one, Robles, presenting case much the same issues as this Hernandez C.J., (Kaye, 7 N.Y.3d 821 N.Y.S.2d 855 N.E.2d Center, 432, 440, dissenting) (citing Living Cleburne v. Cleburne 473 U.S. (1985)), S.Ct. L.Ed.2d 313 "[Homosexuals meet class, is, suspect group constitutional definition of a whose defining any characteristic is 'so seldom relevant to the achievement of legitimate grounded state interest that laws in such considerations are ” prejudice antipathy....' deemed to reflect

422 Rand v. (1992); n. 7 109 357 n.

325 Md. (1977) Rand, 508, 512-14, A.2d 903-04 280 Md. Equal instructive, scope interpreting (finding discrimination, the it to sex applied Amendment as Rights state “overriding compelling Washington’s Court of Supreme standard). therefore, It, equal clear that an is interest” a discrimina render constitutional cannot application approach it could do so for a more than any classification tory sex-based discriminatory race-based classification. review, of the enhanced standard justify rejection

To its to the review of applied that this has scrutiny, Court strict dismisses, classifications, an undis- majority gender-based and dis- prejudice history pervasive extensive puted but Deane, v. Conaway targeted at homosexuals. crimination (2007). 571, 609-12, 283-88, 291-92, A.2d 614-15 Md. (1) have concludes, result, homosexuals as a that It then establishment, by to effect the eventual power enough political statute, couples; unions for same-sex or civil marriage (2) as a their characterization precludes political power this class. Id. suspect is that has not The fact persuaded.

I am not said, verge on the safely be is not may and it adopted, partnership statewide domestic comprehensive adopting, approximates institution couples for same-sex scheme thereby upon couples confers such marriage, of civil of married heterosexu- responsibilities rights approximate laudable, Moreover, civil though piecemeal, couples. al relies, it majority references and on which that the advances 614-15, 291-92, marriage because id. A.2d at occurred See In heterosexuality. exclusive benefit of has remained an 497, 512, County, 369 Md. A.2d Montgomery Tyma to the domes- granting local law benefits (upholding holding that such law employees by its virtue of partners tic laws). Thus, implicate Maryland’s marriage does on the couples that benefit same-sex conditioning of advances acquire right shall not limitation that homosexuals or its right marry, any argument belies marry be, imminent, not to likely equivalent, functional inevitable, mention, couples. for same-sex that we reach event, analysis requires process a due any majority does. majority than the a different result in this deeply is not rooted marriage same-sex determines that therefore, States, and, impli does not inor the United State 401 Md. at liberty interest. a fundamental cate however, determination, only recognizes That at 617-26. A.2d prejudice and undisputed to an voice and substance gives legally is not homosexuality—that to objection—against resolve, real address, mind the never it does not cognizable; in addition to point, made this Judge Kaye issue. Chief Robles, issue, 7 N.Y.3d in v. real Hernandez identifying the (2006) C.J., 1, 770, (Kaye, 27 338, 855 N.E.2d 821 N.Y.S.2d framed There, Appeals the New York Court dissenting). done, whether has as issue, majority this case as tradition, and con deeply is rooted marriage” “same-sex here, marriages that such cluded, majority does again as the ‘which are those rights Noting that“[f]undamental not. are history and are, rooted in this Nation’s objectively, deeply liberty, of ordered concept ... and implicit tradition if were they would exist liberty justice neither nor such that ” 23, 770, Washington at sacrificed,’ quoting 855 N.E.2d id. 2258, 2268, 702, 720-721, 117 138 S.Ct. Glucksberg, v. 521 U.S. (1997), Court 772, Supreme with the agreeing 787-788 L.Ed.2d Chief precedent, of Appeals States and Court United marry to is fundamen right that “the Kaye concluded Judge 1, id., others, 388 U.S. tal,” among Loving Virginia, citing, unconstitutional 1817, (holding 18 L.Ed.2d 1010 87 S.Ct. Levin v. Yeshi marriage) interracial prohibit that statutes 1099, Univ., 484, 15, 754 N.E.2d 96 N.Y.2d 730 N.Y.S.2d va (2001) (G.B.Smith, J., (“marriage is a funda concurring) 1108 that, a matter of due right”), mental constitutional right marry marry to the right “central process, N.E.2d at 22-23. choice.” Id. at of one’s person omitted). (citations Judge Kaye opined: then

Chief rights recognized “Fundamental once cannot be denied to on the these have particular groups ground groups Indeed, historically rights. been denied those in recasting marry invocation of their fundamental plaintiffs’ right as a of a ‘new" to same-sex request recognition right the Court the nature of the marriage, misapprehends liberty at stake.” interest

Id. at 855 N.E.2d at 23. Texas, on Lawrence v. Relying U.S. S.Ct. (2003), Supreme 156 L.Ed.2d 508 in which the United States warned against misapprehension, explained: Court such she Hardwick, “Lawrence overruled Bowers v. U.S. (1986), which upheld S.Ct. 92 L.Ed.2d had so, Georgia criminalizing sodomy. doing statute framing Lawrence court criticized Bowers for the issue presented narrowly. too that ‘Bowers was not Declaring (539 decided, correct it it today’ when was is not correct 2472), Lawrence explained U.S. S.Ct. Bow purported analyze erroneously-whether ers the Constitu tion right upon conferred ‘fundamental homosexuals to (539 engage sodomy’ U.S. at 123 S.Ct. 2472 [citation omitted]). was, however, wrong This question. issue, framed, right properly right fundamental was the to engage private right consensual sexual conduct-a that applied to both homosexuals and heterosexuals alike. narrowing liberty embody very the claimed interest to being Bowers challenged, exclusion the Court’s ‘disclose[d] appreciate liberty own failure to the extent of the at stake’ 2472).” (Lawrence, 567, 123 539 U.S. at S.Ct.

Hernandez, C.J., 821 N.Y.S.2d 855 N.E.2d at 23. (Kaye, dissenting). Judge Kaye applies What Chief next said with equal force judice: to case sub

“The same failure is evident here. An liberty asserted interest is not to be narrowly characterized so as to make inevitable the conclusion that the claimed could not right be fundamental it historically because has been denied to those who now seek to exercise it Planned Parenthood {see 833, 847, 112 S.Ct. Casey, Pa. v. U.S. Southeastern ‘ ... that suppose to tempting is [it 674 [1992] 120 L.Ed.2d de practices, those only protects Clause the Due Process against level, protected were that specific the most fined at law when the rules of by other interference government view But such a ratified.... Amendment was Fourteenth law’]).” with our would be inconsistent 23-24. 855 N.E.2d at Id. at the nature majority misapprehends to me that

It is clear whether a same- It is not in this case. liberty at issue evokes, that is emotions pejorative with all the marriage, sex case, properly when real issue this right; fundamental right. The fundamental marriage is a framed, whether is it resolved; indeed, agree we all that already been has issue firmly right and the in the affirmative answered has been 1, 87 S.Ct. 388 U.S. Virginia, v. Loving See established. (1967) statutes that unconstitutional (holding 18 L.Ed.2d 1010 Connecticut, 401 U.S. Boddie marriage); interracial prohibit (1971) state (concluding that 28 L.Ed.2d 91 S.Ct. court fees to obtain pay individuals indigent requirement to right the fundamental unconstitutionally burdened divorce 673, 54 Redhail, 98 S.Ct. 434 U.S. Zablocki v. marry); (1978) require cannot (determining that states L.Ed.2d 618 ap- to obtain court obligations child support individuals with 78, 107 Safley, 482 U.S. marry); Turner v. order proval could (holding that inmates L.Ed.2d 64 S.Ct. marry). right denied the not be the related and as it does marry, encompassing right freedom to choose element of choice—the

critically important inherently “lucky” person—is marry, whom to to select homo—sexual. it either hetero—or Neither is party-centric. right marry Kaye, to construe Judge I with Chief agree i.e., on sexual orienta- majority, based narrowly as does this fundamental tion, inevitable the conclusion makes not exist for same- historical does prejudice, virtue of right, Hernandez, 770, 855 N.E.2d at 821 N.Y.S.2d couples. sex See (citations omitted). C.J., (Kaye, dissenting) Kaye observed: Judge As Chief Lawrence was fact,

“the result in affected Court, acknowledged by the had been long there no history Rather, in homosexuality. holding tolerance in ‘[p]ersons relationship may a homosexual seek auton omy for the intimate purpose making personal [] [of choices], just do.’ Lawrence persons reject as heterosexual rights ed the notion that fundamental it had identi already fied could be restricted assumptions based traditional about who should be their permitted protection. As the noted, Court ‘times can blind us to certain truths and later can see that laws generations thought necessary once proper only oppress.’ served As the Constitution en dures, in persons every generation can invoke its principles (Lawrence, in their own search for greater freedom” 579, 123 2472; see also id. U.S. S.Ct. 539 U.S. 2472 [‘(h)istory S.Ct. and tradition are the starting point in ending point but not all cases the of the substantive due Center, Living Cleburne Cleburne process inquiry....’]; Inc., 432, 466, 473 U.S. 105 S.Ct. 87 L.Ed.2d 313 ^[1985] [Marshall, J., concurring in the judgment part dissenting part] once [Vhat was ‘natural’ and ‘self- ordering evident’ later comes to be seen an as artificial and freedom’]). invidious constraint on human potential Simply put, rights fundamental are fundamental rights. They are not defined terms of who is entitled to exercise them.”

Hernandez, C.J., (Kaye, N.Y.S.2d 855 N.E.2d at 24. Lawrence, 574, 579, dissenting) (citing 539 U.S. at 123 S.Ct. at 2472). sure,

To be there are important differences between the experience gay African American and that of men and lesbians country, yet many arguments this of the made in support of the antimiscegenation laws were identical to today those made and, in opposition in Loving, marriage to same-sex their goal is to right restrict of an individual to marry the person of his or her choice. Consequently, reasoning Loving requires rejection argument. Her- petitioners’ nandez, 24-25, 26, 821 N.Y.S.2d (Kaye, 855 N.E.2d at Legal Brief of NAACP C.J., (citing quoting and dissenting) Inc., in Fund, support as amicus curiae and Defense Education plaintiffs). Finally, be can excluded couples is no that same-sex answer

“[i]t definition, not ‘marriage,’ does because marriage from end, marriage that is argument In the ‘an include them. reasoning’ it to circular ‘just is’ amounts heterosexual because Can., 65 OR3d alpern Attorney v. Gen. (H ¶ [2003]). mar institution of ‘To define the OAC has always of those whom it by the characteristics riage accessible, those to justify in order to the exclusion been accessible, conclusory bypas it has been whom never (Goodridge the core we are asked to decide’ question ses Health, Pub. 798 N.E.2d Department Mass. J., [Greaney, concurring]).” 972-973 [2003] Hernandez, C.J., 26 (Kaye, N.Y.S.2d 855 N.E.2d at dissenting). least, appurtenant marriage

At the the benefits very accrue, of the parties. whoever whatever nature Therefore, with, I join, Judge Raker’s dissent to agree that extent it endorses and advocates that committed same- that couples myriad statutory sex are entitled to the benefits I not marriage. join are associated with and flow from do accepts majority’s analysis of her part opinion that rational basis review is the appropriate determination in case. applied standard be this review, I again, to a under rational As determination basis Judge Kaye’s Chief Hernández dissent. persuaded by am Thus, basis,” I, if the test like Chief proper were “rational in Kaye, that the at issue this case Judge believe classification “it even rational basis pass satisfy does not muster: does review, fur- requires ‘rationally which that the classification ” Hernandez, 821 legitimate state interest.’ N.Y.S.2d ther (citations C.J., dissenting) (Kaye, 855 N.E.2d at 30. omitted). that,

The majority determines review, under rational basis the limitation of marriage to “a man and a woman”2 is reasonably related to the State’s legitimate interest foster ing procreation, ie., environment,” a “stable traditional heterosexual marriage. See 401 Md. at 932 A.2d at 629-30. While the State undoubtedly has an interest encouraging heterosexual couples marry prior to procrea tion, “the exclusion gay men and lesbians from marriage no way furthers this interest. There enough are marriage licenses to go Hernandez, around for everyone.” 770, N.Y.S.2d 855 N.E.2d at 30. discusses,

The majority at length, statistics and other evi dence that support the existence of trend toward the “gradual erosion of the ‘traditional’ nuclear family today’s society,” 401 Md. at 932 A.2d at and also identifies ways Maryland (1957, which Code 2006 Repl.Vol.), Family Law (hereinafter Article, 2-201”) § 2-201 “Family § Law is both 319-22, over-and under-inclusive. Id. at 932 A.2d at 631-33. that, Reasoning because rational basis review require does not exactitude, “mathematic may contain imperfections which result some degree inequality,” the majority submits that both inexactness, the aforementioned is, trend and the over-and 2-201, under-inclusive nature of Family § Law are insufficient support to § determination that 2- Family Law 201 runs afoul of equal protection. Id. at 932 A.2d at 635 added). here, (emphasis however, At issue is not some degree inequality but total exclusion of same-sex couples “from the entire spectrum protections that come with civil marriage— purportedly to encourage people other to procreate.” Her nandez, 821 N.Y.S.2d 855 N.E.2d C.J., at 31. (Kaye, added). dissenting) (emphasis

Consequently, it disingenuous is indeed to surmise that the “possibility procreation” creates a reasonable relationship this context. 401 Md. at 932 A.2d at (emphasis (1957, Article, RepLVol.), Family Code § Law 2-201. added). Kaye, “[mjarriage Judge Chief simply put As children,” major- yet producing much more than about only offering such as “how gaping questions ity open leaves in the hospital visit loved one right a sick heterosexuals in encouraging furthers the State’s interest conceivably ... id. have children.” See couples to opposite-sex C.J., sheer breadth (Kaye, dissenting). N.E.2d at 31 are, pursuant marriage appurtenant the benefits couples § made unavailable same-sex Family Law Id. credit.” “impossible to justification renders Romer v. Ev- C.J., (Kaye, dissenting) (citing N.E.2d at 32. 1620, 1629, ), 635, 116 134 L.Ed.2d 855 ans S.Ct. U.S. (1996)).

932 A.2d 698 Lendro Thomas Darrell HOLMES a/k/a Maryland. STATE Term, 140, Sept. No. Appeals Maryland.

Court

Sept. 21, 2007. notes in footnote present opinion, "[ajlthough disposition case would have no Appellees’ eligibility for those federal benefits under the effect on Act, regulatory Marriage it illustrates current Federal Defense marriage landscape regarding and the marital benefits from same-sex Appellees are excluded.” which privileges practical fully here the that are It is not to discuss provided denied to committed same-sex to married individuals and Marriage couples. description For a full see Inequal- Equality Maryland., (2006), org http://www.equalitymaryland. ity in the State /marriage/marriage_mequality_in_maryland.pdf. 344 A spouse Health-General Article. share room in health may 19-344(h). facility. § care A Id. spouse permitted is also to secure spouse. (1997, health insurance for the other Md.Code 2003 Repl.Vol., Cum.Supp.), § 2006 12-202 of the Insurance Article. couples enjoy Same-sex do not pro- these automatic tections. Married individuals benefit also from certain default provi- sions associated with the death of a A spouse. surviving spouse automatically right has the arrange for final disposition of the body of a decedent spouse absence of (1982, written instructions. Md.Code Repl.Vol., 2006 § Cum.Supp.), 5-509 of the Health-General Article. A spouse is exempt from inheritance tax on benefits real plans or property passed (1988, the decedent. Md.Code ReplVol., 2006 Cum.Supp.), § 7-203 of the Tax General Arti- Acle. is spouse family $5,000, entitled allowance of which exempt from priority and has over all against claims (1974, estate. ReplVol, § Md.Code 3- Cum.Supp.), 201 of the Estates and Trusts Article. A spouse may bring a cause of action for the wrongful death a spouse. Md.Code (1974, ReplVol.), § 3-904 of the Courts and Judicial Furthermore, Proceedings Article. health insurance provid- required ers are to continue coverage surviving spouses. (1997, Md.Code Repl.Vol., § Cum.Supp.), 15-407 the Insurance Article. Same-sex incur couples must the ex- pense of attempting gain protect and to rights these through wills legal and other instruments. Beyond the realm of benefits, health and death married couples enjoy right to freely joint transfer ownership in property to a spouse without having pay transfer or recor- (1986, dation tax. Md.Code 2001 Repl.Vol., 2006 Cum.Supp.), §§ 13-403 Tax-Property Article. cou- Married may own ples property entirety, tenants Md.Code (1974, ReplVol, § 2006 Cum.Supp.), 4-204 of the Real

Case Details

Case Name: Conaway v. Deane

Court Name: Court of Appeals of Maryland

Date Published: Sep 18, 2007

Citation: 932 A.2d 571

Docket Number: 44, Sept. Term, 2006

Court Abbreviation: Md.