Chapter 27 of the Montgomery County Code contains a comprehensive statutory scheme aimed at eliminating discrimination in the County in the areas of employment, housing, and public accommodation. Section 27-2 of the County Code creates the Montgomery County Human Relations Commission and. provides for its jurisdiction. The County’s general anti-discrimination policies, as well as the administration and duties of the Commission, are set out in §§ 27-1 through 27-7B. The remainder of Chapter 27 is divided into four parts, namely, discrimination in places of public accommodation (§§ 27-8 through 27-10), discrimination in real estate (§§ 27-11 through 27-16C), discrimination in employment (§§ 27-17 through 27-26), and intimidation (§§ 27-26A through H).
The two cases before this Court concern the third division, employment discrimination. Section 27-17 declares that it is Montgomery County’s public policy “to foster equal employment opportunity for all without regard to race, color, religious creed, ancestry, national origin, sex, marital status, age, handicap, or sexual orientation and strictly in accord with their individual merits as human beings.” Thus, § 27-19 provides in relevant part as follows (emphasis added):
“Section 27-19. Unlawful Employment Practices.
(a) It shall be an unlawful employment practice to do any of the following acts because of the race, color, religious *571 creed, ancestry, national origin, age, sex, marital status, handicap, or sexual orientation of any individual or because of any reason that would not have been asserted but for the race, color, religious creed, ancestry, national origin, age, sex, marital status, handicap, or sexual'orientation of the individual:
(1) For an employer:
(a) To fail or refuse to hire or fail to accept the services of or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment.
(d) Notwithstanding any other provision of this division, it shall not be an unlawful employment practice:
(2) For a religious corporation, association or society to hire and employ employees of a particular religion to perform purely religious functions.” (Emphasis added).
The State Legislature, in Maryland Code (1957, 1998 Repl. Vol.), Art. 49B, § 42, has authorized a circuit court civil action for damages or other relief by “a person who is subjected to an act of discrimination prohibited by the [Montgomery] county code.... ” The present cases were brought pursuant to Art. 49B, § 42. 1 The plaintiffs in these cases were employees of *572 Montrose Christian School, and they claimed that they were terminated by the school’s principal on the basis of their religious creed in violation of the County’s employment dis *573 crimination law. The issues before us concern the monetary liability of the school and the principal under Art. 49B, § 42, and § 27-19 of the County Code.
I.
This opinion encompasses two cases; consequently, we shall set forth the facts and procedural history of each case separately.
A. No. 147, Montrose Christian School, et al. v. Carver
Montrose Christian School Corporation is a private, religious school affiliated with the Montrose Baptist Church in Montgomery County, Maryland. The school and the church operate on the same grounds for which only one sign, “Mont-rose Baptist Church,” is displayed. The school provides education to children from kindergarten through twelfth grade. Enrollment is not limited to students whose families are members of the church or to students who are Baptist. The majority of students attending the school are not members of the church. Students belonging to a variety of religions and denominations attend the school.
According to the school’s Articles of Incorporation and Bylaws, the Church Board of Deacons elects the School Board, all of whom are required to be members of the Church. The Pastor of the Church is an “ex officio” member of the School Board and is the supervisor of the school’s principal. The Bylaws provide that the “Principal shall carry out the administration of the school under the direction of the Pastor.”
Pastor Ray Hope became the new Pastor of the Church in February 1996. In June 1996, the school promoted defendant Gregory Scheck, formerly vice principal, to principal of the school. Changes in administrative policy at the school followed the change in pastors. All employees of the school who were not members of the Montrose Baptist Church, with the exception of two janitors, were discharged from employment.
The plaintiff Barbara Anne Carver began working for the school as a teacher’s aide in 1990. At the time she was hired, *574 the school knew that she was not a member of the church and was not a Baptist. Carver’s position required her to perform tasks such as copying, typing, grading papers, and generally assisting school staff and teachers in administrative ways. Carver is not a certified teacher, does not have a teaching degree, and has never been employed as a teacher. Carver was fired by the defendant Scheck in June 1996.
Carver filed a charge of employment discrimination with the Montgomery County Human Relations Commission, and more than 45 days passed without resolution of the charge. Carver then filed a complaint in the Circuit Court for Montgomery County against the school and Scheck alleging employment discrimination and seeking both damages and injunctive relief. Specifically, Carver alleged that the defendants fired her for the sole reason that she was not a member of the church and that firing her for that reason violated § 27-19 of the Montgomery County Code which prohibits employers from discriminating against employees on the basis of their religious creed.
In response, the defendants contended that their action fell within the exceptions to the employment discrimination law and, farther, that they were immune from liability under the doctrine of charitable immunity. 2 The defendants also assert *575 ed that the application of Montgomery County’s employment discrimination law to the school and Scheck violated the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, the guarantee of freedom of association under the First Amendment, and Article 36 of the Maryland Declaration of Rights. Moreover, the defendants argued that the County’s law was preempted because the local law impermissibly conflicts with state law prohibiting employment discrimination. See Maryland Code (1957, 1998 Repl. Yol.), Art. 49B, § 18. Montgomery County intervened in the lawsuit for the purpose of defending the local law on constitutional and preemption grounds.
The Circuit Court resolved the action for damages in Carver’s favor following a hearing on cross-motions for summary judgment based on stipulated facts. The court held that the defendants had engaged in an unlawful employment practice in violation of § 27-19 of the Montgomery County Code when they terminated Carver’s employment because of her religious creed. The court determined that none of the statutory exceptions in § 27-19 applied to the defendants’ conduct. The court further held that Montgomery County’s employment discrimination law does not impermissibly conflict with state law. The Circuit Court also held that the application of § 27-19 to the defendants did not violate the First Amendment or the Maryland Constitution. Finally, the court ruled that the defendants were not entitled to the defense of charitable immunity. Judgment was entered awarding Carver $15,000.00 in damages and awarding $16,000.00 in attorneys’ fees and costs, for a total of $31,000.00. The court denied the request for injunctive relief.
The defendants filed an appeal to the Court of Special Appeals. Before argument in the intermediate appellate
*576
court, this Court issued a writ of certiorari.
Montrose Christian School v. Carver,
B. No. 144, Montrose Christian School, et al. v. Walsh, et al.
In 1979, the plaintiff Mary Lou Jones began working at the school as the bookkeeper and the principal’s secretary. The school hired the plaintiff Sharon M. Walsh in 1982 'for a secretarial position handling registration-type duties and general administrative tasks. The plaintiff Helen E. Poole was hired as a cafeteria worker in 1989. Poole’s duties included planning menus, ordering food, preparing meals, and cleaning up. The three plaintiffs are not members of the church and are not Baptists. Scheck terminated the employment of each of the plaintiffs in June 1996.
The plaintiffs filed a complaint with the Montgomery County Human Relations Commission charging the school and Scheck with employment discrimination based on religious creed in violation of § 27-19. More than 45 days passed without resolution of the administrative complaint, and the plaintiffs then filed an action in the Circuit Court for Montgomery County, seeking damages and injunctive relief against the school and Scheck.
In response to the plaintiffs’ discrimination claims, the defendants asserted the same defenses described in the Carver case discussed above. Also, as in the Carver case, Montgomery County intervened in the Circuit Court for the purpose of defending the validity of the Montgomery County law.
The defendants filed a motion for summary judgment based on the exceptions under the Montgomery County Code, the constitutional issues, the question of preemption by conflict, and charitable immunity. The Circuit Court denied the summary judgment motion. The court did grant a motion by the plaintiffs to exclude evidence relating to the “bona fide occupational qualification” and “undue hardship” exceptions in the local law, thus preventing the defendants from asserting those defenses at trial. See § 27-19(d)(l) and (3).
*577 After the presentation of evidence relating to the reasons for terminating the plaintiffs’ employment, the jury found that each of the plaintiffs had been terminated by the school and by Scheck because of their religious creed. Compensatory damages were awarded to each of the three plaintiffs. Subsequently, the Circuit Court filed an opinion holding that the local law did not conflict with state law and that the application of § 27-19 to the conduct of the defendants did not violate the Establishment Clause, the Free Exercise Clause, or the guarantee of freedom of association under the First Amendment. The court further held that there was no violation of Article 36 of the Maryland Declaration of Rights. In rejecting the constitutional defenses, the court stated that it was persuaded by the evidence which indicated that “the duties of the plaintiffs were not the formulation or implementation of policy nor were they educational or instructive in nature, but rather administrative and ministerial.” The court did hold that the school was entitled to charitable immunity but that such immunity did not extend to Scheck. In accordance with the jury’s verdicts, judgments for compensatory damages, in various amounts, were rendered for each of the three plaintiffs against Scheck. The court denied the request for injunctive relief.
Both the defendants and the plaintiffs appealed to the Court of Special Appeals.
3
Prior to argument in the intermediate
*578
appellate court, the plaintiffs filed in this Court a petition for a writ a certiorari and the defendants filed a cross-petition for a writ of certiorari. We granted both the petition and the cross-petition.
Walsh v. Montrose Christian School,
The parties in both cases present substantially the same issues for appellate review. We restate the three principal questions as follows:
I. Whether § 27-19 of the Montgomery County Code is in conflict with, and thus preempted by, Maryland Code (1957,1998 RepLVoL), Art. 49B, § 18;
II. Whether the doctrine of charitable immunity precludes the award of damages against the school and Scheck;
III. Whether § 27-19 of the Montgomery County Code violates the First Amendment to the United States Constitution or Article 36 of the Maryland Declaration of Rights.
If the defendants prevail under either the first or the second of the questions set forth above, it would not be necessary for us to reach the constitutional issues in the third question. Consistent with the “ ‘principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground,’ ” 4 we shall first consider the conflict and charitable immunity issues.
*579 II.
Montgomery County has charter home rule under the Home Rule Amendment, Article XI A of the Maryland Constitution.
See, e.g., Save Our Streets v. Mitchell,
The defendants in the instant cases argue that § 27-19 of the Montgomery County Code is preempted by Maryland Code (1957, 1998 Repl.Vol.), Art. 49B, § 18, because the County’s employment discrimination law does not provide a broad exemption from coverage for religious organizations such as is afforded under state and federal anti-discrimination laws. Specifically, the defendants assert that § 27-19 of the County Code, prohibiting religious organizations from discriminating in employment on the basis of religious creed, fatally conflicts with state law which contains no such prohibition. 5
The State’s employment discrimination law is codified at Maryland Code (1957, 1998 Repl.Vol.), Art. 49B, §§ 14 through 18. In contrast to the Montgomery County Code, the *580 state law exempts religious organizations from the prohibition against religious creed discrimination. Art. 49B, § 18, states:
“This subtitle shall not apply to an employer with respect to the employment of aliens outside of the State, or to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.”
The state statute was modeled after the federal anti-discrimination law,
Molesworth v. Brandon,
The controlling Maryland principle in determining preemption by conflict was set forth in
Talbot County v. Skipper,
“A local ordinance is pre-empted by conflict when it prohibits an activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.”
See Soaring Vista Properties v. Queen Anne’s County,
Although discrimination by religious organizations on the basis of religious creed is not covered by state law, this Court has held that noncoverage does not mean that such activity is
*581
authorized by the state statute. In
Annapolis Lodge,
“[O]ur cases have recognized a distinction between a state law which is intended to permit or authorize a particular matter and a state law which is simply intended to exempt the particular matter from its coverage. When a state law simply excludes a particular activity from its coverage, our cases have not attributed to the General Assembly an intent to preempt local legislation regulating or prohibiting that activity. Instead, in such situations supplementary local legislation has not been deemed to be in conflict with and preempted by the state statute.”
See Holiday v. Anne Arundel, supra,
The state employment discrimination law simply excludes religious organizations from coverage of the religious creed anti-discrimination provision in the state statute. Instead of constituting an affirmative authorization to discriminate, Article 49B, § 18, merely removes religious organizations from the scope of the state law with regard to religious creed discrimination. Under the above-cited cases, there is no conflict between Art. 49B, § 18, and § 27-19 of the Montgomery County Code.
III.
As previously stated, the Circuit Court in No. 147 ruled that neither the school nor Scheck was entitled to the defense of *582 charitable immunity with regard to their statutory liability for damages. In No. 144, however, the Circuit Court held that the defendant school was immune from liability because of charitable immunity. The court further held that the defendant Scheck could not avail himself of the defense of charitable immunity. In this Court, the defendants argue that both the school and Scheck are entitled to the defense of charitable immunity. The plaintiffs urge that the common law doctrine of charitable immunity is not a defense to liability imposed by statute, and that the Circuit Court erred in No. 144 by holding that the defense of charitable immunity protected the school. We agree with the plaintiffs.
The doctrine of charitable immunity was first recognized in Maryland in
Perry v. House of Refuge,
We assume,
arguendo,
that the school is a bona fide charitable organization for the purpose of the doctrine of charitable immunity.
See Abramson v. Reiss, supra,
As pointed out above, the charitable immunity defense applies only to tort actions. Except for wrongful or abusive discharge actions pursuant to
Adler v. American Standard Corp.,
Moreover, even if a statutory employment discrimination action were characterized as a tort suit, charitable immunity cannot be used to shield liability where the common law has been modified by legislation permitting actions against charitable organizations.
See, e.g., Abramson v. Reiss, supra,
The Montgomery County Council, by enacting § 27-19 of the Montgomery County Code, explicitly extended coverage of the statute to include the employment activities of charitable organizations such as the school. See § 27 — 19(d)(2) (referring to a religious corporation, association or society as an employer) and § 27 — 19(f)(2) (referring to positions of employment in a religious school). Section 27-19 of the Montgomery County *584 Code, together with Art. 49B, § 42, of the Maryland Code, clearly abrogate any charitable immunity that might otherwise have existed in cases like the present ones.
IV.
In light of our holdings that § 27-19 of the Montgomery County Code does not conflict with Art. 49B, § 18, of the Maryland Code, and that the defense of charitable immunity is not applicable in these cases, it becomes necessary to consider the constitutionality of § 27-19(d)(2).
As earlier discussed, § 27-19(a) of the Montgomery County Code makes it unlawful, inter alia, for an employer “to discharge any individual” “because of ... religious creed____” Section 27-19(d)(2), however, contains an exception to this prohibition which allows “religious” organizations to employ persons “of a particular religion.” Nevertheless, the last five words of § 27-19(d)(2) limit the exception to employees hired “to perform purely religious functions.” Consequently, because of this limitation, churches, religious schools, and other religious organizations in Montgomery County are expressly prohibited from making employment decisions based on “religious creed” except for employees hired to perform purely religious functions.
We shall hold that the limitation in § 27 — 19(d)(2), “to perform purely religious functions,” on its face violates the Free Exercise Clause of the First Amendment and Article 36 of the Maryland Declaration of Rights. We shall further hold that the limitation is severable from the remaining language of § 27-19(d)(2). As a result, the viable portion of § 27-19(d)(2) will provide that “it shall not be an unlawful employment practice * * * [f]or a religious corporation, association, or society to hire and employ employees of a particular religion.” Because the defendants’ conduct was permitted by the valid portion of the § 27 — 19(d)(2) exception, we shall reverse the judgments below.
*585 A.
The First Amendment to the United States Constitution declares, in pertinent part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof____” The religion clauses of the First Amendment are, of course, applicable to the states and their political subdivisions by virtue of the Fourteenth Amendment.
See, e.g., Employment Div., Ore. Dept. of Human Res. v. Smith,
“... all persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry....” 8
The Free Exercise Clause of the First Amendment and Article 36 of the Maryland Declaration of Rights ordinarily do not grant to an individual or a religious organization “a constitutional right to ignore neutral laws of general applicability” even when such laws have an incidental effect of burdening a particular religious activity.
City of Boerne v.
*586
Flores,
“In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”
See, e.g., Employment Div., Ore. Dept. of Human Res. v. Smith, supra,
Although religious
activities
may ordinarily be subject to neutral laws of general applicability, “the First Amendment obviously excludes all ‘governmental regulation of religious
beliefs
as such.’ ”
Employment Div., Ore. Dept. of Human Res. v. Smith, supra,
Furthermore, under the Free Exercise Clause, laws targeting particular religious practices, or selectively imposing burdens on conduct motivated by religious belief, are subject to strict scrutiny, and “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”
Church of the Lukumi Babalu Aye v. Hialeah, supra,
In addition, and particularly applicable to the cases at bar, is the principle set forth in
Kedroff v. St. Nicholas Cathedral
*587
of Russian Orthodox Church,
“a spirit of freedom for religious organizations, an independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.”
In
N.L.R.B. v. Catholic Bishop of Chicago,
“The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”
See, e.g., Downs v. Roman Catholic Archbishop of Baltimore,
A uniform line of cases applying this principle, namely that the free exercise guarantee limits governmental interference with the internal management of religious organizations, compels the conclusion that § 27-19(d)(2) of the Montgomery County Code is invalid under the Free Exercise Clause of the First Amendment and Article 36 of the Maryland Declaration of Rights. Most of these cases have arisen under a federal statute, Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq.
Title VII makes it an unlawful employment practice to discriminate on the basis of race, color, religion, sex, or national origin. Originally, Title VII exempted from its prohibition against employment discrimination, based on religion, the employment by religious organizations of persons “to perform work connected with the carrying on” of the employer’s “religious activities.” 42 U.S.C. § 2000e-1 (1964). Congress amended Title VII in 1972, broadening the exemption for religious employers by deleting the adjective “religious” which had modified “activities.” 9 The legislative history of *589 the amendment stresses the congressional motivation to foster the separation between church and state. As co-sponsor of the Amendment, Senator Sam Ervin remarked: “this amendment is to take the political hands of Caesar off the institutions of God, where they have no place to be.” 118 Cong. Rec. 4503 (1972).
In
Corporation of Presiding Bishop v. Amos,
“Nonetheless, it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.
“After a detailed examination of the legislative history of the 1972 amendment, the District Court concluded that Congress’ purpose was to minimize governmental ‘inter-fer[ence] with the decision-making process in religions.’ ... We agree with the District Court that this purpose does not violate the Establishment Clause.”
Later, the Court in
Amos
reiterated that the 1972 amendment, “expanding the ... exemption to cover all activities of religious employers,” was “motivated by a permissible purpose of limiting governmental interference with the exercise of religion....”
*590 It should be noted that Title VII’s pre-1972 exemption for religious creed-based employment discrimination by religious organizations, which the Supreme Court and Congress indicated might be suspect under the Free Exercise Clause, was broader than the exemption in § 27-19(d)(2) of the Montgomery County Code. The pre-1972 Title VII provision authorized religious organizations to employ persons “of a particular religion to perform work connected with the carrying on” of the employer’s “religious activities.” Section 27-19(d)(2), however, only allows religious organizations to employ persons “of a particular religion to perform purely religious functions.” There is a difference between work “connected with the carrying on” of religious activities and the narrower “perform[ance]” of religious functions. More importantly, there is a large difference between “religious activities” and “purely religious functions.”
Although Title VII, as amended in 1972, exempts religious organizations from the prohibition against employment discrimination based on religious creed, the provisions of Title VII proscribing employment discrimination based on race, color, sex, or national origin are literally applicable to religious organizations. Nevertheless, the courts have consistently held that the Free Exercise Clause of the First Amendment precludes the application of these Title VII provisions to employment decisions by religious organizations concerning ministers, teachers, and other employees whose duties are “integral to the spiritual and pastoral mission” of the religious organization.
E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C.,
This constitutionally-required exception to Title VII has been called the “ministerial exception to Title VII,” although it applies to other employees in addition to ministers. It is applicable to any employee of a religious organization whose “ ‘primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship,’ ”
E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., supra,
*591
The constitutionally-compelled “ministerial exception” to Title VII was first recognized by the United States Court of Appeals for the Fifth Circuit in
McClure v. Salvation Army,
“We find that the application of the provisions of Title VII to the employment relationship existing between The Salvation Army and Mrs. McClure, a church and its minister would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment.”
Subsequent cases have consistently followed the holding in
McClure
and applied the “ministerial exception.”
See, e.g., Gellington v. Christian Methodist Episcopal Church, supra,
*593
In addition to the cases involving Title VII, state courts, relying on the free exercise guarantees of the federal and state constitutions, have recognized a similar “ministerial exception” in actions under state laws proscribing discrimination in employment.
See, e.g., Madsen v. Erwin,
“The free exercise of religion includes the right to run large religious institutions — certainly churches, seminaries, and schools, and ... other charitable institutions as well. Such institutions can only be run through employees. It follows at the very least that the free exercise of religion includes the right of churches to hire employees. It surely also follows that the churches are entitled to insist on undivided loyalty from these employees.
“The employee accepts responsibility to carry out part of the religious mission.... [CJhurches rely on employees to do the work of the church and to do it in accord with church teaching. When an employee agrees to do the work of the church, he must be held to submit to church authority in much the same way as a member.
“It follows that church labor relations are internal affairs, and the state’s interest in interfering to protect employees must be judged accordingly. The state may not intervene to protect employees from treatment that is merely arbitrary or unfair; the remedy for that is to resign or renegotiate the terms of employment. Modern labor legislation may have deprived secular employers of the fiduciary duty once owed them by their rank and file employees, but to deprive churches of that duty would be to interfere with an interest protected by the free exercise clause.”
*594 Turning to § 27 — 19(d)(2) of the Montgomery County Code, it is obvious that the provision effectively contains no exemption allowing religious organizations to employ only persons of a particular religion. Although the first sixteen words of § 27-19(d)(2) ostensibly allow religious organizations “to hire and employ employees of a particular religion,” the next five words limit the authorization to the hiring of employees “to perform purely religious functions.” The limitation effectively nullifies the exemption. It is doubtful that any employees of religious organizations in Montgomery County perform purely religious functions. Even ministers, pastors, priests, rabbis, and other theological heads of religious organizations occasionally perform functions which would not ordinarily be characterized as “religious.” Many other employees of religious organizations, such as teachers, may perform both religious and non-religious functions. Nonetheless, as shown by the previously discussed cases, the constitutional free exercise guarantee restricts governmental interference with a religious organization’s hiring and firing of employees who are involved in the religious activities of the organization.
Apparently recognizing the constitutional problems with the “to perform purely religious functions” limitation in § 27-19(d)(2), Montgomery County argues that “the term ‘purely religious functions’ should be read to mean ‘primarily ministerial duties.’ ” (Montgomery County’s brief in No. 147, at 14 n. 17). The County relies on the principle that a court should “ ‘construe’ ” a statute “ ‘so as to avoid conflict with the Constitution....’” (Id. at 14-15 n. 17). The plaintiffs suggest that the language should be construed to mean “some significant functions” that are religious. (Plaintiffs’ brief in No. 144, at 16 n. 4).
The principle of statutory construction relied on by Montgomery County is that “ ‘a construction of a statute, giving rise to doubts as to its constitutionality, should be avoided
if the language permits.’ ” Davis v. State,
“The General Assembly expressly limited the exemption to members or adherents of a recognized church or religious denomination opposing immunization. To excise the phrase ‘the tenets and practice of a recognized church or religious denomination of which he is an adherent or member,’ and insert the phrase ‘his religious beliefs,’ as contended for by the petitioner, would be to re-draft the statute under the guise of construction. In the language of Justice Harlan dealing with a similar contention, it would be ‘to assume an Alice in Wonderland world where words have no meaning,’ Welsh v. United States,398 U.S. 333 , 354,90 S.Ct. 1792 ,26 L.Ed.2d 308 (1970) (concurring opinion). This we decline to do.”
Similarly, in the cases at bar, to substitute the phrases “to perform
primarily
ministerial duties” or “to perform
some
religious functions” for the statutory language “to perform
purely
religious functions,” would also “be to re-draft the [ordinance] under the guise of construction.”
Davis,
As the limiting language of § 27-19(d)(2) effectively renders nugatory any exemption for the employment practices of religious organizations, such limiting language violates the Free Exercise Clause of the First Amendment and Article 36 of the Maryland Declaration of Rights.
B.
While the limiting language, consisting of the last five words of § 27-19(d)(2), is invalid, that language is severable from the rest of § 27-19(d)(2). Under Maryland law, “[t]here is a strong presumption that if a portion of an enactment is found to be invalid, the intent [of the legislative body] is that such portion be severed.”
Board v. Smallwood,
Moreover, with regard to § 27-19(d)(2), not severing the last five words of § 27 — 19(d)(2), and invalidating all of § 27- *597 19(d)(2), would present the identical constitutional infirmity which infected the ordinance in its original form. If all of § 27-19(d)(2) is invalidated, there will be no exemption for the employment practices of religious organizations. Under § 27-19, without subsection (d)(2), a church in Montgomery County could not discriminate, based on religious creed, in its employment of a minister or pastor. This would make § 27-19 unconstitutional as applied to religious organizations. In order for § 27-19 to be valid under the First Amendment and under Article 36 of the Maryland Declaration of Rights, there must be some exception to the prohibition against religious creed discrimination for religious organizations.
Consequently, we hold that the last five words of § 27-19(d)(2) are invalid and are severable from the remaining language of § 27-19(d)(2). Under the remaining language of § 27-19(d)(2), the defendants were entitled to employ only members of the Montrose Baptist Church.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED, AND BOTH CASES ARE REMANDED TO THAT COURT WITH DIRECTIONS TO ENTER JUDGMENTS FOR THE DEFENDANTS. COSTS IN NO. m TO BE PAID ONE-HALF BY THE PLAINTIFFS AND ONE-HALF BY MONTGOMERY COUNTY. COSTS IN NO. U7 TO BE PAID ONE-HALF BY THE PLAINTIFF CARVER AND ONE HALF BY MONTGOMERY COUNTY.
Notes
. Art. 49B, § 42, provides as follows:
“ § 42. Civil actions for discriminatory acts-Montgomery County, Prince George’s County, and Howard County.
"(a) Authorized. — In Montgomery County, Prince George’s County, and Howard County, in accordance with this subtitle, a person who is subjected to an act of discrimination prohibited by the county code may bring and maintain a civil action against the person who *572 committed the alleged discriminatory act for damages, injunctive relief, or other civil relief.
"(b) Limitations periods. — (1) An action under subsection (a) of this section shall be commenced in the circuit court for the county in which the alleged discrimination took place not later than 2 years after the occurrence of the alleged discriminatory act.
"(2) Subject to the provisions of paragraph (1) of this subsection, an action under subsection (a) of this section alleging employment or public accommodation discrimination may not be commenced sooner than 45 days after the aggrieved person files a complaint with the county agency responsible for handling violations of the county discrimination laws.
"(3) Subject to the provisions of paragraph (1) of this subsection, an action under subsection (a) of this section alleging real estate discrimination may be commenced at any time.
"(c) Fees and costs. — In a civil action under this section, the court, in its discretion, may allow the prevailing party reasonable attorney’s fees, expert witness fees, and costs.”
Prior to the enactment of'Article 49B, § 42, the Montgomery County Council had passed § 27-20(a) of the Montgomery County Code which purported to authorize a circuit court civil action for damages by any person who had "been subjected to any act of discrimination prohibited under this division....” In
McCrory Corp. v. Fowler,
Article 49B, § 42, enacted in response to the McCrory and Sweeney decisions, applies only in three counties, namely Montgomery County, Prince George’s County, and Howard County. A somewhat similar provision, Article 49B, § 43, authorizes a civil action in Baltimore County. The General Assembly does not appear to have enacted similar provisions applicable in the other counties or Baltimore City. No party in the present cases has raised any issue concerning the validity of § 42 under equal protection or other constitutional principles.
. The defendants relied on the three exceptions, listed in § 27-19(d), which provide as follows (emphasis added):
"(d) Notwithstanding any other provision of this division, it shall not be an unlawful employment practice:
(1) For an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs, to admit or employ any individual in any such program, on the basis of race, color, religious creed, age, sex, marital status, national origin, ancestry, handicap, or sexual orientation in those certain instances where such basis is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise;
(2) For a religious corporation, association or society to hire and employ employees of a particular religion to perform purely religious functions; and
*575 (3) For an employer to deny employment on the basis of religious creed in those cases when the observance, practice or belief cannot be reasonably accommodated by an employer without causing undue hardship on the conduct of the employer's business.”
. The appeal taken by the Montrose Christian School in Case No. 144 was inappropriate because the judgment was entirely in its favor based on the Circuit Court's charitable immunity holding. What this Court said in
Offutt
v.
Montgomery Co. Bd. of Ed.,
"It should be pointed out that, as a procedural matter, the cross-appeal in this case does not properly lie. Although the defendant School Board may not like the language in the trial court’s opinion stating that the Board bargained in bad faith, the final judgment of the trial court, by denying any relief to the plaintiffs, is entirely in the School Board's favor. It is established as a general principle that only a party aggrieved by a court’s judgment may take an appeal and that one may not appeal or cross-appeal from a judgment wholly in his favor.” [Citations omitted]
*578 "Where a party has an issue resolved adversely in the trial court, but like the School Board here receives a wholly favorable judgment on another ground, that party may, as an appellee and without taking a cross-appeal, argue as a ground for affirmance the matter that was resolved against it at trial.” [Citations omitted]
See, e.g., Boitnott v. Baltimore,356 Md. 226 , 233-234 n. 7,738 A.2d 881 , 885 n. 7 (1999); Insurance Commissioner v. Equitable,339 Md. 596 , 612 n. 8,664 A.2d 862 , 870 n. 8 (1995); Paolino v. McCormick & Co.,314 Md. 575 , 579,552 A.2d 868 , 870 (1989) ("an appeal or cross appeal is impermissible from a judgment wholly in a party’s favor”). See also the discussions in Auto. Trade Ass’n v. Harold Folk Enter.,301 Md. 642 , 648-649,484 A.2d 612 , 615 (1984); Joseph H. Munson Co. v. Sec. of State,294 Md. 160 , 167-168,448 A.2d 935 , 939-940 (1982), affirmed,467 U.S. 947 ,104 S.Ct. 2839 ,81 L.Ed.2d 786 (1984).
.
Baltimore Sun v. Baltimore,
. As this Court has noted, "state law may preempt local law in one of three ways: 1) preemption by conflict, 2) express preemption, or 3) implied preemption.”
Talbot County v. Skipper,
. The defendants do not, however, argue that the local law is in conflict with, or preempted by, the federal statutory provisions.
. Some courts in other jurisdictions appear to adopt a contrary position on this issue.
See, e.g., City of Tacoma v. Franciscan Foundation,
. While the liberty to worship freely is embodied in the Maryland Declaration of Rights, the Maryland Constitution contains no express proscription against governmental "establishment” of religion.
Barghout v. Mayor,
. Similar to the Maryland state law, § 42 U.S.C.2000e-l(a) now provides:
"This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
Section 42 U.S.C. § 2000e-2(e) clarifies the exemption as it applies to religious schools, providing:
"(2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or *589 institution of learning is directed toward the propagation of a particular religion.”
. Moreover, it is far from clear that substituting "primarily” for "purely,” as argued for by Montgomery County, would remove the constitutional infirmity from the ordinance. For courts to determine whether positions in religious organizations perform "primarily” religious functions, for purposes of religious creed discrimination, would involve a significant "degree of entanglement” in the affairs of religious organizations.
N.L.R.B. v. Catholic Bishop of Chicago,