*1 932A.2d CONAWAY,et al. Frank DEANE, Gitanjali et al. Term, 44, Sept. 2006.
No. Maryland. Appeals of Court of Sept. *12 (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 *13 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. *14 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. *15 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 *16 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 *17 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 *18 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
*19
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
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).
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 *20 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
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 *22 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
majority
present case fails to
that
in the
Judge
clearly adopted
scrutiny as
ERA cases.”
strict
the standard in
contrary,
Battaglia's
op.
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 *24 (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 *25 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,
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 *27 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 *28 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 *29 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.
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
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
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.
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,
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
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).
*38
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
The Court of
(1974),
one of the first
Vt.
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
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.
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
*41
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
“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.
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.’”
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,
ing *45 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,
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,
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
279
similar,
comprehensive,
as
set
although not
identified a
suspect
new
allegedly
may analyze
which we
criteria
(de
Waldron,
706,
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,
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. *50 280
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.
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
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.,
*52
(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
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 *53 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
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
*55
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.
*56
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
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
*57
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,
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,
The term
Frontiero,
birth,”
“solely by the accident
is determined
*59
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,
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
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
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.
295
97,
Massachusetts,
105, 54
291 U.S.
S.Ct.
Snyder v.
(quoting
(1934));
v.
521
330, 332,
Washington Glucksberg,
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
*63
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.’
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
*64
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
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,
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 *65 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.
L.Ed.2d
reference to other cases that
it,
Williamson,
cite
rel.
Skinner Oklahoma ex
U.S.
(1942).
1110, 1113-14,
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.
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
L.Ed.2d
Court declared that “marriage
importance
society.”
involves interests
basic
in our
U.S.
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.
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,
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
*71
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
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,
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
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
*74
legitimate governmental
group[,] cannot
constitute a
interest.”
Romer,
634-35,
1629,
at
U.S.
at
S.Ct.
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.
[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. *76 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,
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
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 *79 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.
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.”
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
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.
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
*85
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:
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
*88
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.
“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,
I. Maryland’s equal protection jurispru- Under traditional dence, classification which does not discriminate legislative *89 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.
distinction.
304
v.
340, 352,
178, 185 (1985);
City
New Orleans
Md.
Dukes,
297, 303,
2513, 2517,
427
96 S.Ct.
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
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
A. Current Laws—Rights and Limits *92 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,
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.
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
*96
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
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 *97 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 *98 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 *99 (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 *100 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 *101 § (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 *102 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 *103 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
*104
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,
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
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. *106 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 *107 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. *108 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.
New and chose establish marriage by amending unions the State’s current statute *109 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 *110 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.” *111 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
*112
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
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 *113 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.
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
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
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
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’
*118
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
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 *119 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
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),]
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 *122 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.
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.
*123
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
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
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,
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
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
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.
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 *127 376
“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
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.
[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
*129
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
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,
[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 *130 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 *131 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 *132 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
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
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
*135
rors, not merely
Id.
to the defendant.
at
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
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,
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
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
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 *138 (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
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.
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.
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
*142
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.
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
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 *144 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
*145
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,
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,
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,
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
“[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
*149
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,
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 *150 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
55. 1974 A.2d at 817. *151 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. *152 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.
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
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.
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 *156 412 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.
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
*158
(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,
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
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
*159
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,
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.
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
*161
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.
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,
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
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
*165
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
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
Hernandez,
C.J.,
821 N.Y.S.2d
“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
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,
“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.
Hernandez,
C.J.,
(Kaye,
N.Y.S.2d
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 *168 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,
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
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,”
Consequently, it
disingenuous
is
indeed to surmise that the
“possibility
procreation”
creates a reasonable relationship
this context.
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