Conaway v. Deane

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Frank C onawa y, et al. v. Gitan jali Deane , et al., No. 44, Sept. Term 2006. CONSTITUTIONAL LAW - EQUAL RIGHTS AMENDMENT - MD. CODE (1957, 2006 REPL. VOL.), FAMILY LAW ARTICLE, § 2-201, (MARRIAGE IS BETWEEN A MAN AND A WOMAN ONLY) DOES NOT DISCRIMINATE ON THE BASIS OF GENDER CONSTITUTIONAL LAW - EQUAL PROTECTION - SUSPECT AND QUASI-SUSPECT CLASSIFICATIONS - SEXU AL OR IENTA TION IS N OT A S USPEC T OR Q UASISUSPECT CLASSIFICATION CONSTITUTIONAL LAW - DUE PROCESS - FUNDAMENTAL RIGHTS - THER E IS NO FUNDAMENTAL RIGHT TO M ARRY A PERSON OF YOUR OW N SEX CONSTITUTIONAL LAW - RATIO NAL BASIS R EVIEW - FAM ILY LAW § 2-201 IS RATIONALLY RELATED TO A LEGITIMATE GOVERNMENTAL OBJECTIVE Circuit Co urt for Baltim ore City Case # 24-C-04-005390 IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2006 FRAN K CO NAW AY, et al. v. GITA NJAL I DEA NE, et al. Bell, C.J. Raker *Wilner *Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Raker, J., Concurs in Part and Dissents. Bell, C.J., and Battaglia, J., D issent. Filed: September 18, 2007 *Wilner and Cath ell, JJ., now retire d, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Frank Conaway, Clerk of the Circ uit Court fo r Baltimore City, and other c ircuit court clerks throughout Maryland ( the Clerks ) denied marriage licenses to certain same-sex couples. The Clerks denied those applications pursuant to Maryland Code (1 957, 200 6 Repl. Vol.), Family Law Article, § 2-201 (hereinafter Family Law § 2-201 ). 1 The Circuit Cou rt for Baltimore City, where the aggrieved applicants filed suit against the Clerks, granted summary judgmen t in favor of the Plaintiffs -Appellee s, declaring th at the statute discriminates facially on the basis of sex, in violation of Article 46 of the Declaration of Rights of Maryland, otherwise known as the Equal Rights Amendm ent ( ERA ).2 The Circuit Court, in its memorandum opinion, ex pressly declined to address Appellees equal protection and substantive due process arguments that were based on the Law of the Land provisions of Article 24 of the Declaration of Rights.3 Defend ants-App ellants noted a timely appeal to the Court of Special Appe als. We issu ed a writ of certiorari to the in termediate appellate court before it could decide the appeal. 393 Md. 477, 903 A.2d 416 (2006). For the reas ons state d here, w e shall re verse th e judgm ent of th e Circu it Cour t. FACTUAL BACKGROUND 1 M D. C ODE (1957, 2006 Repl. Vol.), Family Law Article, § 2-201, provides that [o]nly a marriag e betw een a m an and a wom an is va lid in this S tate. 2 Article 46 of the Maryland Declaratio n of Righ ts ( Article 46 ") states that [e ]quality of righ ts unde r the law shall no t be abrid ged or d enied b ecause of sex . 3 Article 24 of the Maryland Declaration of Rights ( Article 24") states that no man ought to be taken o r impriso ned or d isseized of his f reehold , liberties o r privileg es, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liber ty or prope rty, but by the judgm ent of h is peers, o r by the L aw of the land . The factual background, much like challenges to similar state marriage statutes in other jurisdictions, is undisputed. Maryland law provides that no individuals may marry in this State without a license issued b y the clerk for the county in wh ich the ma rriage is perfor med. M D. C ODE (1957, 2006 Repl. Vol.), Family Law Article, § 2-401(a). In order to apply for such a license, at least one of the parties to the marriage must appear before the clerk of the circuit court for that county and, under oath, provide the following information: (1) the full name of each party; (2) the re sidence o f eac h party; (3) each party s age; (4) the degree of consanguinity, if any, between the parties; (5) the marital status of each of the parties; and (6) the social security number of eac h party. M D. C ODE (1957, 20 06 Rep l. Vol.), Family Law Article, § 2-402(b). If, while questioning an applicant, the clerk finds that there is a legal reason why the applicants should not be married, the clerk shall withhold the license unless orde red by the cou rt to issue the license. MD. C ODE (1957, 2006 R epl. Vol.), Family Law A rticle, § 2-405(e). Eighteen of the App ellees here are n ine same-s ex couple s who, at v arious times in June and July 2004, sought marriage licenses in Baltimore City and several counties in Maryland. The nineteenth Respondent is a homos exual ma le who ex pressed a w ish to apply in the future for a marriage license.4 Frank Co nawa y, Clerk of the Circuit Court for 4 The nine same-sex couples who applied for marriage licenses are as follows: Gitanjali Deane and Lisa Polyak; Charles Blackburn and Glen Dehn; Jodi Kelber-Kaye and Stacey Kargman-Kaye; Alvin Williams and Nigel Simon; Steven Palmer and Ryan Killough; Patrick Wojahn and David Ko lesar; Mikkole M ozelle and Phelicia K ebreau; Donn a Myers (contin ued...) 2 Baltimore City, and the oth er circuit cou rt clerks denie d 5 these app lications purs uant to Family Law § 2-201, which provides that [o]nly a marriage between a man and a woman is valid in this State, thereby depriving Appellees of the various benefits and privileges that accompany the institution of marriage.6 It is undisputed that Appellees were denied marriage 4 (...continued) and Maria B arquero; an d Takia F oskey and Jo anne Ra bb. John L estitian is the surviving partner of a thirteen-year same-sex relationship who formed a new same-sex relationship and wishes to preserve the right to apply for a marriage license in the future. 5 Although Lestitian has not applie d for a marriage license, he plans to do so in the future and, according to A ppellees, the C lerk of the C ircuit Court f or Wash ington Co unty would deny his application under the current statutory scheme. There is scant doubt about the accuracy of this prediction. 6 Through the efforts of Appellees counsel, we are directed to 339 Maryland laws that provide for benefits, conditioned on marital status, which grant rights an d respons ibilities to married couples, to the effective exclusion of same-sex couples. They include, but are not limited to, the areas of taxation, business regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding s pousal he alth care, insuran ce, labor and employme nt, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements. This is but a partial list of the benefits provided in Maryland to married couple s and d enied to same-s ex cou ples pro hibited f rom m arriage . In terms of federal benefits, the Government Accounting Office (GAO) compiled in 1997, and updated in 2004, a list of federal rights, responsibilities, and privileges granted to married couples, bu t denied to sa me-sex co uples. Acc ording to the study, there were 1,138 federal statutes providing such benefits. A.B.A. S EC. OF F AM. L., A White Paper: An Analysis of the L aw Re gardin g Sam e-Sex M arriag e, Civil Unions, and Dome stic Partnerships, 38 F AM. L. Q. 339, 366, n. 98 (citing Repo rt No. 04-353R (4 January 2004), available at http://www.gao.gov/new.items/d04353r.pdf). Although disposition of the present case would have no effect on App ellees eligibility for those federal benefits under the Federal D efense of Marriag e Act, it illustrates the current regulatory landscape regarding same-sex marriage and the marital benefits from which Appellees are excluded. (contin ued...) 3 licenses by the Clerks solely because they are same-sex couples. Appellees are otherwise qualified to marry: each partner is unrelated by blood or by marriage,7 each partner is over the age of 17,8 each partner is unmarried,9 each of the relationships are consensual, and each of the a pplican ts posse ss the ca pacity to m arry. Appellees filed on 7 July 2004 a C omplaint for Dec laratory and Injunctive Relief, naming as defendants Frank Conaway; Rosalyn Pugh, Clerk of the Circuit Court for Prince George s County; Evelyn Arnold, C lerk of the Circuit Co urt for St. M ary s County; D ennis Weaver, Clerk of the Circuit Court for Washington County; and Michael Baker, Clerk of the Circuit Court for Do rche ster C ounty. 10 The four count complaint alleges that Family Law § 2-201: (1) uncon stitutionally discrimin ates based o n sex, in violation of Article 46 of the Maryland Declaration of Rights; (2) unjustifiably discriminates based on sexual orientation, 6 (...continued) The privileges that accompany marriage, according to Appe llees, are not lim ited to demons trable statutory benef its. Same-sex couples su ffer, it is proff ered, variou s intangible harms, which include the stigma attach ed to the co uples and their children , and harm to dignity resulting from being singled-out for unequal treatment on the basis of their sexual preference. 7 M D. C ODE (1957, 2006 Repl. Vol.), Family Law Article, § 2-202. 8 M D. C ODE (1957, 2006 Repl. Vol.), Family Law Article, § 2-301. 9 M D. C ODE (1957, 2006 R epl. Vol.), Family Law A rticle, § 2-402(b)(1)(v) - (vi). 10 According to the record, four of the couples reside in Baltimore City; three couples reside in Prince George s County; one mem ber of another cou ple resides in St. Mary s Cou nty, while the other member resides in Costa Rica; Mr. Lestitian resides in Washington Coun ty; and on e coup le reside s in Do rcheste r Coun ty. 4 in violation of the equal protection provisions of Article 24 of the Maryland Declaration of Rights; (3) disparately inhibits, in violation of the equal protection provisions of Article 24 of the Maryland Declaration of Rights, the same-sex couples fundam enta l righ ts to m arry, privacy, autonomy, and intimate association, because the statute allows similarly-situated opposite-sex couples to exercise those rights; and (4) unjustifiably burdens the exercise of same-sex couples fundamental rights to mar ry, privacy, autonom y, and intimate association, in violation of the due process provisions of Article 24 of the Maryland Declaration of Rights . Three motions to intervene were filed subsequent to the filing of Appellees complain t. Robert P. Duck worth, C lerk of the C ircuit Court for Anne Arundel County, was the first to file a motion to intervene as a defendant. Mr. Duckworth contended that, as a county circuit court clerk, a decision in favor of the Plaintiffs-Appellees wou ld create uncertainty with regard to the discharge of his job duties, and would subject him to potential civil and criminal litigation in the future discharge of those duties. Duckworth v. Deane, 393 Md. 524, 530 -31, 903 A .2d 883, 88 7 (2006) (d escribing the procedu ral history of the litigation to that point in time). Eight members of the Maryland General Assembly likewise attempted to intervene as defendants, claiming that, as members of the Legislatu re, their legislative authority included the power to regulate marriage in the State of the Maryland. Duckw orth, 393 Md. at 532, 903 A.2d at 887. A judicial decision invalidating the marriage statute, according to the legislators, would be a judicial encroachment upon their legislative 5 authority in violation of the separation of powers principles in Article 8 of the Maryland Declaration of Rights. Duckw orth, 393 Md. at 532, 903 A.2d at 887-88. The third motion to intervene was filed in prop er pe rson by To ni M arie D avis, a res iden t of B altim ore C ity. Ms. Davis asserted that because the homosexual lifestyle [was ] agains t [her] re ligion, allowing same-sex marriage would, in essence, burden unconstitutionally her First Amendment right to practice her relig ion. Duckw orth, 393 Md. at 532-33, 903 A.2d at 888. The motions were denied by the Circuit Court and the interveners each noted appeals to the Court of Special Appeals. We issued, on our initiative, a writ of certiorari on 17 December 2005 before the inter media te appe llate cou rt decide d the ap peal. Duckworth v. Deane, 384 Md. 44 8, 863 A .2d 997 (2 004). For re asons not p ertinent to the m erits before u s now, this Court, after briefing and oral argument, affirmed on 28 July 2006 the Circuit Court s decision to deny th e reque sted inte rventio ns. Duckw orth, 393 Md. at 545, 903 A.2d at 895. After the motions to intervene were denied, the parties filed cross-motions for summary judgment, pursuant to Maryland Rule 2-501. The Appellees supported their motion with a series of exhibits and declarations by the various plaintiffs and others.11 The trial judge held a motions hearing on 30 August 2005 and, on 20 January 2006, issued a memorandum opinion in which she held that the exclusion of same-sex couples from 11 Appellees filed a motion to strike the accompanying declarations of Lisa Ayers, Esquire; Judith Stacey, Ph. D; Nancy F. Cott, Ph.D; and, M.V. Lee Badgett, Ph. D. These declarations purported to be expert opinions debunking the General Assembly s assumed factual underpinnings for Family Law § 2-201. The trial judge granted Appellants motion as to the declaration of Ms. Ayers. 6 marriage constitutes a sex-based classification, lacking a constitutionally sufficient justifica tion in v iolation of Art icle 46. She granted, therefore, Appellees motion for summary judgment, denied Appellants cross-motion, and entered sum mary judgment in favor of the sam e-sex cou ples. The C ircuit Court, pursuant to Maryland Rule 2-632, stayed enforcement of its ruling pending the resolution of the expected appeal and because of the potential consequences of the ruling on circuit court clerks offices throughout the State.12 We issued a writ of certiorari upon the Clerks timely petition. 393 Md . 477, 903 A.2d 4 16 (2006). STANDARD OF REVIEW Any party to an action may file a motion for summary judgment, pursuant to Maryland Rule 2-501(a), if it is claimed th at there exists n o genuine dispute as to any material fact, and the movin g party is entitled to judgment as a matter of law. Maryland Rule 2-501(a). The questions for the trial court to determine from the pleadings and papers properly before it on a motion for summary judgment, therefore, are whether there exists a genuine dispute of material fact and, if no such dispute is revealed, whether the movant is entitled to prevail as a matter o f law o n those undisp uted fa cts. See, e.g., Brewer v. Mele, 267 Md. 437, 441, 298 12 Maryland Rule 2-632(f) provides that [w]hen an appeal is taken from an order or a judgmen t granting, disso lving, or den ying an injunc tion, the cour t in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it con siders p roper f or the se curity of th e adve rse party. Although the record is un clear whe ther this Rule was relied o n as the bas is for the grant of the stay, the validity of the stay is unchallenged here. 7 A.2d 156, 159 (1972). Whethe r a trial court s gran t of summ ary judgmen t was prop er is a question of law and is reviewed de novo by the ap pellate c ourts. Livesay v. Baltimore, 384 Md. 1, 9, 862 A.2d 33 , 38 (2004). In such review, an appellate court resolves in favor of the non-moving party all reasonable inferences that may be adduced from the underlying facts as reveale d by the p leading s, admis sions, an d affid avits. Miller v. Ba y City Prop. Owners Ass n, Inc., 393 Md. 620, 631, 903 A.2d 938, 944-45 (2006) (quoting King v. Bankerd, 303 Md. 98, 110-11, 492 A.2d 608, 614 (1985) (citing in turn Lynx, Inc. v. Ordnance Prod., Inc., 273 Md. 1, 7-8, 327 A.2d 502, 509 (1974))); Merchants Mtg. Co. v. Lubow, 275 Md. 208, 339 A .2d 664 (1975 ). Maryland appellate courts, as a general rule, will consider only the [legal] grounds upon which the [trial] court relied in granting summary judgment. Ross v. State Bd. of Elections, 387 Md. 649, 667, 876 A.2d 692, 702 (2005) (quoting Eid v. Duke, 373 Md. 2, 10, 816 A.2 d 844, 84 9 (2003)); Miller, 393 Md. at 632, 903 A.2d at 945 ( An ap pellate court . . . examines the same information from the record and determines the same issues of law as the trial court. (quoting PaineWebber, Inc. v. East, 363 Md. 408, 413, 768 A.2d 1029, 1032 (2001))); Lovelace v. Andersen, 366 Md. 690, 695, 785 A.2d 725, 729 (2001) (quoting PaineWebber, 363 Md. at 422, 768 A.2d at 1036). This premise is only valid, howev er, when there are two or more separate and distinct grounds for the grant of summary judgmen t, and the trial court re lies on o ne, but n ot anoth er, in gra nting su mmar y judgm ent. Ross, 387 Md. at 667, 876 A.2d at 702-0 3. Thus, if tw o or more similar and inextricably 8 intertwined grounds for sum mary judgment exist, this Court may consider alternatively any related ground, if ra ised prope rly by the litigant in his, her, or its motion for summ ary judgmen t, if we f ind fau lt with th e groun d relied u pon fa cially by the tr ial court . Id.; see also Eid, 373 Md. at 10-11, 816 A.2d at 849 (holding that the issues of ERISA preemption and the existence of a patient-physician relationship giving rise to a state law medical malpractice cause of action are so inextricably intertwined that both grounds may be considered in the review of a grant of summary judgment, even though the trial court relied solely upon the ERISA preemption issue in granting summary judgment); cf. Geisz v. Greater Balt. Med. Ctr., 313 Md. 301, 314 n.5, 545 A.2d 658, 664 n.5 (1988) ( On appeal from the grant of summary judgment which is reversible because of error in the ground relied upon by the trial court[,] the appellate court will not ordinarily sustain the judgment by ruling on another ground, not ruled upon [by] the trial court, if the alternative ground is one as to which the trial court had . . . discretion to deny summary judgment. ) (emphasis added). Whether Family Law § 2-201 is violative of Articles 24 or 46 are issues purely of law and are so inextricably intertwined with one another that we shall consider the Article 24 claim, even though we fin d error in the Circ uit Cou rt s singu lar relian ce on A rticle 46 . DISCUSSION I. Claim of Sex -based Discrim ination Und er Article 46 of the D eclaration of Righ ts Appellees assert that, because Family Law § 2-201 excludes same-sex couples from marriage, the statute draws an impermissible classification on the basis of sex, in violation 9 of Article 4 6 of the ERA . Specifically, Appellees reason that [ a] man who seeks to marry a wom an ca n ma rry, bu t a woma n wh o see ks to marry a woman cannot. Similarly, a woman who see ks to marry a m an can m arry, but a man who seeks to marry a man cannot. Thus, because Family Law § 2-201 allows opposite-sex couples to marry but, at the same time, necessarily prohibits same-sex couples from doing so, the statute makes sex a factor in the enjo yment and the determination of one s right to marry, and is therefore subject to strict scru tiny. 13 Appellees argument, at first glance, is beguiling. They point to several Maryland preceden ts that, if viewed literally, appear to support the proposition that a statute receives 13 If Family Law § 2-201 d iscriminates o n the basis o f sex, as the A ppellees ass ert, this Court would examine the statu te with th e strictest of scru tiny. Tyler v. State , 330 Md. 261, 266, 623 A .2d 648 , 651 (1993) (holding that, because of Article 46 of the Maryland Declaration of Rights, sex-based c lassifications are suspect and are su bject to strict scrutiny ); Murphy v. Edmonds, 325 Md. 342, 357 n.7, 601 A.2d 102, 109 n.7 (1992) (holding that classifications based on sex are suspect and subject to strict scrutiny review under the Equal Rights Ame ndment of A rticle 46); State v. Burning Tree Club, Inc., 315 Md. 254, 295-96, 554 A.2d 366, 387 (1989 ) ( Burning Tree II ). If it is determin ed that Fam ily Law § 2-201 does not draw a sex-based classification, however, our cases instruct us to analyze the con stitutiona lity of the st atute un der ratio nal bas is review . See Murphy, 325 Md. at 355-56, 601 A.2d at 108-09 (1992) (holding that statutory classifications that do not affect a suspect or q uasi-suspe ct class are su bject to rationa l basis review , and will be upheld so long as the statute is rationally related to a legitimate governm ental purpose). Judge Battaglia s dissent goes to great lengths to explain that [t]he majority in the present case fails to recogniz e that Burning Tree II clearly adopted strict scrutiny as the standard in ERA cases. Judge Battaglia s Dissent slip op. at 31-34. To the contrary, the Majority recognizes that strict scrutiny should be applied when the ERA is implicated. But in order for strict scrutiny to be the approach standard, it must first be found th at the statute discriminate s on the ba sis of sex. W e conclud e that it does n ot. 10 strict scrutiny analysis un der Article 4 6 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review. See Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037 (19 98) ( [S]e x is not, and can not be, a factor in the enjoyment or the determination of legal rights. ) (citing Rand v. Rand, 280 Md. 508, 513, 374 A.2d 900, 902-03 (1977) and Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Y ALE L. J. 871 (1971)); Burning Tree Club, Inc. v. Bainum, 305 Md 53, 63-64, 501 A.2d 817, 822 (1985) (Burning Tree I) ( [S]ex is not a perm issible factor in determining the legal rights of women, or men . . . [such that] the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other. ); Boblitz v. Bo blitz, 296 Md. 242, 274-75, 462 A.2d 506, 522 (1983) (holding that, after legislative passage and approval by the people of Article 46 of the De claration of R ights, any ancien t deprivation of rights based upon sex would contravene the basic law of this State ). When considering those cases in context, 14 however, and because we believe that Article 46 was not intended by the General Assembly and the Maryland voters who enacted and ratified, respectively, the 14 As will be described infra, each case relied on by Appellees in support of their argument involved legislative classifications that gave certain rights to an entire class of men or wome n, to the exclu sion of the opposite sex. The classifications in those cases are so obviously sex-based that they are of negligible value in demonstrating the invalidity of a statute such as Fa mily Law § 2-201 tha t, on its face, ap plies equally to the mem bers of bo th sexes. 11 Maryland ERA in 1972 to reach classifications based on sexual orientation, we conclude that Family L aw § 2 -201 d oes no t draw a n impe rmissib le sex-b ased di stinction . A. The Legislative History of the Maryland Equal Rights Amendment indicates that the ERA was intended to combat discrimination between men and women as classes. The Maryland General Assembly, in 1972, ratified overwhelmingly a proposed Federal Equal Rights A mendm ent, 15 and passed during that same legislative session Chapter 366, § 1 of the Acts of 1972. G OVERNOR S C OMM N TO S TUDY IMPLEMENTATION OF THE E QUAL R IGHTS A MENDMENT, A PPLICATION OF THE EQUAL RIGHTS AMENDMENT 1 (1977). The General Assembly, through this legislative enactment, amended the Declaration of Rights to include an Equal Rights Amendment (ERA) that tracked closely the language of 15 Originally introduced in 1923 to Congress by the National Women s Pa rty, R ENEE F EINBERG, T HE E QUAL R IGHTS A MENDMENT 16 (1986), the proposed fe deral equa l rights amendm ent, upon which the Maryland counterpart was based, was proposed in every Congressional session since then and through the 1971 Ninety-Second session. Allison L. Held, Sheryl L . Hernd on, Da nielle M . Stager , The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 W M. & M ARY J. W OMEN & L. 113, 116 (1997). Propelled by a wave of political support for women s rights reform, the amendment passed Congress by an overwhelming majority . . . . Id. The proposed amendment passed in the House by a vote of 354 to 24 and in the Senate 84 to 8. 117 Cong. Rec. 35,815 (1971); 118 Cong. Rec. 9598 (1972). Three-quarters of the States (38 at the time) were required to ratify the amendment before 1979 in order for it to become part of the U. S. Con stitution. F EINBERG, supra, at 14. Whe n only 35 states ratified the amendment by the deadlin e, F EINBERG, supra, at 14, Congress adopted a resolution extending the deadline for ratification to 30 June 1982. H eld et al., supra, at 117; H.R.J. Res. 638, 95th Cong., 2d Sess., 92 Stat. 3799 (1978). The amendment did not receive the three remaining votes required by 1982, and thus failed to become part of the U. S. C onstitutio n. F EINBERG, supra, at 1. 12 the proposed federal amendm ent. 16 Chapter 366, § 1 of the Acts of 1972. In its final form, the amendment to the Maryland Declaration of Rights read: Equality of rights under the law shall not be abridged or denied because of sex. Id. Maryland v oters ratified overwh elmingly this amendment, by a 2 to 1 margin, in the November 1972 referendum, and the amendm ent becam e Article 46 on 5 Dece mber 1 972. G OVERNOR S C OMM N TO S TUDY IMPLEMENTATION OF THE E QUAL R IGHTS A MENDMENT, A PPLICATION OF THE EQUAL RIGHTS AMENDMENT 1 (1977). The official legislative history, at least for the Maryland ERA, is not particularly instructive as to discrete legislative intent because legislative bill files were not retained systematically by the General Assembly s Standing Committees or the Department of Legislative Reference (now known as the Department of Legislative Services) until 1975. Resources useful in determining the purpose of pre-1975 legislative action are therefore limited to selected committee bill files (which do not exist for the ERA), the Legislative Counc il Reports to the Gene ral Assem bly for 1941 -1976 (w hich do no t contain reference to the ERA), task force reports, and archival newspaper accounts published during the period. Dep t of Legislative Serv., Md. Gen. Assem bly, Legislative History Resources, available at http://www.dls.state.md.us/side_pgs/library_info/library_legislative_history.html 16 (20 The proposed federal amendment read in pertinent part: SECTION 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Proposed Amendment to the United States Constitution, H.R.J. Res. 208, 92d Cong., 2d S ess., 86 Stat. 1523 (1972). 13 February 2007). We were unable to locate any formal legislative documents created contemporaneous with consideration and promulgation of the Maryland ERA that indicate the General Assembly s overriding purpose in passing the amendm ent. We w ere able to locate, however, extrinsic sources created at or about the time of the pendency of the proposed amendment and its promulgation that suggest that the intend ed scope of Article 46 was to prevent discrimination between men and women as classes. 17 17 As w e have stated in the pas t, [i]f the text [ of a co nstitution al prov ision] is a mbigu ous, the Court should first e ndeavor to ascertain its meaning from other parts of the in strume nt. It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid. When that becomes necessary, however, it is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereb y . . . . Reed v. M cKeldin, 207 M d. 553, 5 60-61 , 115 A .2d 281 , 285 (1 955) (e mpha sis adde d). We are mindful, how ever, of pitfalls and limitations in relying on contem porary newspaper accounts in interpreting legislative intent. In re Jason W., 378 Md. 596, 607-11, 837 A.2d 168, 175-78 (2003) (Harrell, J., concurring) (stating that, on the rare occasion[] when it is appropriate for a court t o cons ider, to some degree, relatively contemporaneous relevant newspaper articles in ascertaining the legislative intent of an enactment of compara ble vintage . . . , the use of newspaper accounts should be approached with caution and selectivity, and cataloging cases from various jurisdictions in which courts have declined to consider contemporaneous newspaper articles as conclusive evidence of (contin ued...) 14 In the time surrounding the promulgation of Article 46, for example, Go vernor M arvin Mandel created a commission designed to study the amendment s post-implementation affects. One of the Commission s stated purposes was to examin e Maryland laws that, while not faci ally discrim inato ry, drew classifications that discriminated in their application on the basis of sex: Laws While N ot Facially Sexually Discriminatory are Sexually Discriminatory in their Application or Effect: The Commission had as a precedent the considerable body of federal and state law which has declared that laws which are unoffensive f acially are nevertheless racially discriminatory in their application. An example is the Supreme Court decision which outlaws literacy tests because they disproportionately exclude racial minorities. The Comm ission, therefor e sought to identify laws , practices and procedu res which in applicatio n has a dis proportion ately adverse affect on the sex [(women)] which ha s traditionally been victim of discrimination. G OVERNOR S C OMM N TO S TUDY IMPLEMENTATION OF THE E QUAL R IGHTS A MENDMENT, F INAL R EPORT TO THE G OVERNOR 11 (1979). In addition to documents originating from executive agencies created to study the effects of the newly passe d equal righ ts amendm ent, various newspaper accounts from the period of time surrounding the 1972 electoral vote on Article 46 shed light on the intended 17 (...continued) legislative intent); see also Hornbeck, 295 Md. at 661, 458 A.2d at 792 (Cole, J., dissenting) ( Newspaper articles . . . are hardly the most reliable sources for extrapolatin g legislative intent; they certainly are no t adequate s ubstitutes for cogent analysis of the purpose of a provision as discerned from its historical context and basic goals. ). We consider the contemporaneous newspaper accounts here only to provide context for ou r analysis. In re Jason W., 378 Md. at 610-11, 837 A.2d at 177-78. 15 scope of the proposed amendment. On Monday, 23 October 1972, the Washington Post published a staff-written compendium entitled Maryland Voters to Decide on Constitutional Changes, which described the various proposed amendments to the Maryland Constitution. According to the article, the amendm ent, sponso red by a majo rity of the legislators, w ould be effective im mediately w ith referendum approval and would, at the least, place the state Constitution in agreement with the U.S. Constitution in assuring equal rights for men and women. This amendmen t is often referred to as a women s rights measure, but it also would assure men that they could not be discriminated against because of their sex. This amendment and the pending amendment to the U.S. Constitution are likely eventu ally to have a far-reaching impact on court decisions in the areas of family and domestic relations laws dealing with such matters as child custody, alimony and paternity cases. Douglas Watso n, Maryland Voters to Decide on Constitutional Changes, W ASH. P OST, 23 October 1972, at B 4 (emph asis added); see also 18 Referendum Issues Confront Voters, T HE N EWS A M., 24 October 1972, at 3-A ( The amendment is often referred to as a women s rights measure, but it also would assure men that they could not be discriminated against because of their sex. ); Barry C. Rascovar, Feminists find new foes of ballot question, B ALT . S UN, 31 October 1972, at C24 (describing the lack of male opposition to the wom en s liberation movement s efforts to pass the Maryland ERA). While these are but a few examples of the newspaper accounts originating around the time the ERA was ratified by the Maryland voters, they represent accurately the bulk of the articles of the time on that subject, 16 and reinforce that the primary purpose of the ERA was to eliminate discrimination as between men and wo men as a class. Because the 1972 G eneral As sembly cons idered in tandem the proposed federal and Maryland amendments, we find instructive also the objectives revealed by the legislative history of the federal initiative. Introduced originally in 1923 b y the National Wom en s Party, the proposed federal amendment was introduced at every legislative session during the mid-20th century. R ENEE F EINBERG, T HE E QUAL R IGHTS A MENDMENT 16 (1986). It was not until 1972 that th e propose d federal a mendm ent, introduc ed to the 92nd Congress as House Joint Resolution (HJR) No. 208 by Representative Martha W. Griffiths (Michigan) and propelled significantly by the women s rights movement occurring during that time, passed Congress by an overwhelming majority. Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, The Equal Rights Am endme nt: Why the E RA Rem ains Lega lly Viable an d Prope rly Before the States, 3 W M. & M ARY J. W OMEN & L. 113 , 116 (1 997). In the Hou se of Rep resentatives, for example, there was much discussion of the intended scope of the proposed federal amendment. During a hearing before the House Committee on Rules, in requesting that HJR 208 be considered by The Committee of the Whole of the House on the State of the Union, R epresentativ e Thom as Phillip T ip O N eill, Jr. (Dem., Massachusetts), then a member of the Committee on Rules, stated: As a group, women have been victims of wide discrimination. In many State s they are denied educational opportunities equal to those for me n. In some States they are 17 not allowed to manage their own property and a wife has fewer property rights. Our legal system currently contains the vestiges of a variety of ancien t commo n law prin ciples wh ich discrimin ate unfairly against women. This legislation would clarify the intent of the Congress that all irrational discrimination on the basis of sex be eliminated. 117 Congr. Rec. 35289 (daily ed. 6 October 1971) (statement of Rep. O N eill). During that same hearing, Representative John B. Anderson (Rep., Illinois) commented: Indeed, we are being called upon today to do the chivalrous thing - to redress a wrong out of fairness and respect for women. We are being called upon once and for all to make women equal under the law of the land - remove the last vestiges of their second-class citizenship from the books. 117 C ongr. R ec. 352 90 (dai ly ed. 6 O ctober 1 971) (s tateme nt of R ep. An derson ). During the floor debate in the House, in opposing the addition of the Wiggins Amendment 18 to the proposed ERA, it was stated by Representative Herman Badillo (Dem ., New Y ork): It is clear that there is flagrant discrimination against women in this country - in e mploymen t opportun ities, in the ownersh ip of private property, in education, in a variety of Federal benefits su ch as social s ecurity and retirem ent and in numerous other areas of American society. This discrimination exists at all levels - Federal, State, and local and in both the public and private sector. 18 The Wiggins Amendment provided for an additional clause in the proposed ERA that stated th at [t]his article sh all not im pair the v alidity of a ny law o f the U .S. which exempts a per son f rom com puls ory militar y service o r any o ther law of the U.S. or of any state w hich rea sonab ly promo tes the h ealth an d safety o f the pe ople. 18 Although some ad vances h ave been made in th e past, there is still much to be done and meaningful and effective steps must be taken to insure that women enjoy the same rights and privileges which ar e now g enerally available to men. Existing constitutional provisions and various court decisions have failed to provide equal rights for women and we cannot depend on piecemeal legislativ e meas ures to a chieve this goa l. In order to avoid any undue d elays or possible erroneous interpre tations, a comprehensive effort is required and I believe a constitutional amendment is the most appropriate and effective device for securing equal rights for all citizens, regardless of sex. 117 Cong r. Rec. 358 0 (da ily ed. 12 October 1971) (statement of Rep. Badillo). Many comme nts of similar substance appear throughout the discussion in the House, regardless of whether a particular Representative was speaking in favor of or in opposition to the Wiggins Amen dment. The Senate de bate conc erning the p roposed e qual rights am endmen t contains sentiments consiste nt with that of th e Hou se. When discussing the issue on 22 March 1972, for example, Senator Charles H. Percy (Rep., Illinois) stated: Even among the [proposed amendment s] opponents, there seems to be little question but that tradition and law have worked together to relegate women to an inferior status in our society. In many cases this has been intentional, based on an archaic precept that women, for physiological or functional reasons, are inferior. This concept has lead to the impleme ntation of laws that prohibit [among other things] women from engaging in certain businesses, ma naging the ir own properties and finances, entering into legal contracts, holding jobs which they are deemed incapable of performing, actively competing in public and private educational institutions for a quality ed ucat ion, a nd se rving on a jury. 19 118 Congr. Rec. 9595 (daily ed. 22 March 1972) (statements of Sen. Percy). Senator Percy conclude d his stateme nts by quoting Susan B . Anthon y and articulating that [n]either does the equal rights amendment lessen or demean the imp ortance of wo men a s wive s, moth ers, and main stays of th e home. E quality do es no t imp ly sameness. While the family structu re is at the hea rt of our soc iety and this legislation does nothing to disrupt that notion, we must recognize that women of today are different, they are aware of and willing to accept their responsibilities as citizens in a modern society and ou ght to be fre e to accept those responsibilities much as they are free to remain in the ho me if that is their choice. .... Today we w ill tru ly ack now ledg e tha t equ ality can no longer be legally conditioned upon sex, that women, as they assume new roles in our society, deserve as a matter of law equal treatment under the law. Id. at 9596 . Speaking directly on the point of the proposed amendment and its effects on marriage between members of the same sex, it was contended by Senator Birch E vans B ayh II (D em., Indiana) during the Senate debate that [t]he equal rights a mendm ent wou ld not proh ibit a State from saying that the institution of marriage would be prohibited to men partners. It would not prohibit a State from saying the institution of marriage would b e prohibited to women partners. All it says is that if a State le gislature ma kes a judg ment that it is wrong for a man to marry a man, then it must say it is wrong for a woman to marry a woman-or if a State says it is wrong for a woma n to marry a wo man, then it must say that it is wrong for a man to marry a man. 20 118 Congr. R ec. 9331 (daily ed. 21 M arch 1972) (statemen ts of Sen. Bayh). B. Maryland precedent interpreting generally Article 46 indicates that the ERA was intended to combat discrimination between men and women as classes. This Court has had the op portunity on se veral occa sions to exa mine the h istorical underpinnings of the ERA. Since the passage, ratification, and promulgation of Article 46 in 1972, our applications of the ERA indicate that its primary purpose was to remedy the long history of subordination of women in this country, and to place men and women on equal groun d as per tains to th e enjoym ent of b asic lega l rights u nder th e law. In virtually every case wh ere this Court had the occasion to consider Article 46, the challenged classification drew clear lines between men and women as classes. In Burning Tree I, for example, the primary question before the Court was whether deferred State real property tax assessm ents given to a private country club that, according to the club s bylaws, expressly prohibited w omen fro m mem bership was violative of Article 46. 305 Md. at 58- 21 59, 501 A.2d at 819-20.19 In route to con cluding tha t such favo rable treatment violated the Maryland Declaration of Rights, we discussed briefly the history and purpose of the ERA: [t]hat equal rights amendmen ts to state constitutions were prompted by a long history of denial of equal rights for women is well recognized. As the commentators have indicated, the subordina te status of w omen in our society has for all too many years been firmly entrenched in our legal system, with women being excluded by law from various rights, obligations or responsibilities. 19 In Burning Tree I, the preferential tax assessment was conditioned upon the club s compliance with an anti-discrimination clause in the statutory scheme granting the tax benefits, which read, in pertinent part, as follows: In order to qu alify under this section, the clu b shall not practice or allow to be practiced any form of discrimination in granting membe rship or guest privileges based upon the race, color, creed, sex, or na tional origin of an y person or persons. The determination as to whether or not any club practices discrimination shall be made by the Office of the Attorney General after affording a hearing to the clu b. The provisions of this section with respect to discrimina tion in sex sh all not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times. Burning Tree I, 305 Md. at 57-58, 501 A.2 d at 819 (em phasis add ed). Centra l to the plurality opinion of this Court that the statute violated the Maryland Declaration of Rights, was the primary purpose qualification to the anti-discrimination provision emphasized in italics above. Based o n this primary purpose provision, the Attorney General found that the club did not discriminate on the basis of sex because the club, pursuant to the statute, operated for the prima ry purpo se of b enefittin g one s ex, nam ely men. Burning Tree I, 305 Md. at 59, 501 A.2d at 820. 22 Burning Tree I, 305 Md. at 63-64, 501 A.2d at 822 (citing B arbara A . Brow n et al., The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Y ALE L. J. 871 (1971)). 20 We concluded that the [ERA] flatly prohibits gender-based classifications, 20 Respected commentators such as Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman, have discussed the intended scope of the Equal R ights Amen dment. In their oft-cited law review article, the authors examined generally the need for an equal rights amen dment: An am endmen t that deals with all sex discrim ination, and only sex discrimination, corresponds roughly to the boundaries of a distinct and interrela ted set of legal relationships. . . . [A] woman s status before the law in one area, su ch as emp loyment, relates both practically and theoretically to her status in other areas, such as ed ucation or re sponsibility for family support. Coming to grips with the dynamics of discrimination against women requires that we recognize the indications of, the excuses for, and the p roblems pres ente d by women s inferior status. An understanding of these dynamics in any one fie ld informs and enlightens understan ding of se x bias elsew here in the law. This is beca use, in the pa st, the legal and social systems have been permeated with a sometime inchoate, but neverthele ss pervasiv e, theory of w omen s in feriority. Barbara A. Bro wn et a l., The Eq ual Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Y ALE L. J. 871, 885 (1971) (emphasis added). The authors stated further that without a constitutional mandate, women s status will never be accorded the special concern which race now receives because of the histo ry of the F ourteen th Am endm ent. For these reasons it is importan t to have a c onstitutional a mendm ent directed to this specific area of equality, out of which a special body of new law can be created. Id. (emph asis add ed). 23 either under legislative enactments, governmental policies, or by application of common law rules, in the allocation of benefits, burdens, rights and responsibilities as between men and women. Burning Tree I, 305 Md. at 64, 50 1 A.2d at 823 (em phasis added). 21 Consistent with this underlying purpose of the ERA, we held in Rand v. Rand, 280 Md. 508, 515-16, 374 A .2d 900, 905 (197 7), that the broad, sweepin g, mandatory language of the [ERA] is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the [ERA] in this state was intended to, and did, drastically alter trad itional views of the v alidity of se x-base d classif ication. (quoting Darrin v. Go uld, 540 P.2d 882, 889 (Wash. 1 975)); see also Giffin v. Crane, 351 Md. 133, 151, 716 A.2d 1029, 1038 (1998). In Rand, we considered the validity of a judgment of the Court of Special Appeals allocating child support obligations based, for the most part, on the sex of the parents. Despite the common law rule at the time that a father primarily was responsible for support of children born d uring th e marria ge, Rand, 280 Md. at 510-11, 374 A.2d at 902 (internal citations omitted), we concluded that, in light of A rticle 21 In Burning Tree II , two membe rs of the country club attacked as uncon stitutional a statute, enacted in response to Burning Tree I, that excluded from preferential tax treatment those clubs that discriminated on the basis of race, color, creed, sex, or national origin. 315 Md. at 261, 554 A.2d at 370. The plaintiffs in that case argued that the statute burdened unconstitutio nally the club s First Amendment freedom of association and constituted a violation of Art. 1, § 10 (the Contract Clause) of the U.S. Constitution and Article III, § 33 of the M aryland C onstitutio n. Burning Tree II , 315 Md. at 261-62 , 554 A.2d at 370. Th is Court affirmed summarily the holdings of Burning Tree I that the discrim inatory practices of the c ountry clu b violate d Artic le 46. Burning Tree II , 315 Md. at 263, 554 A.2d at 371. 24 46, sex was n ot a permiss ible factor in th e determin ation of child support obligations as between the mother and father: The common law rule is a vestige of the past; it cannot be reconciled with out commitment to equality of the sexes. Sex of the parent in m atters of child support cannot be a factor in allocating this responsibility. Child support awards must be made on a sexless basis. Rand, 280 Md. at 516, 374 A.2d at 905; cf. Boblitz v. B oblitz, 296 Md. 242, 245, 273, 462 A.2d A.2d 5 06, 507, 521 (1983) (abrogating the common law doctrine of inter-spousal immunity 22 as a vestige of the past in derogation of married women ). We thus determined that, after the promulgation of Article 46, as between men and women, men no longer as a class were the primary source of child support. Rathe r, both the mother and father fundamentally were res ponsible equally for the monetary support of their children bo rn during the marriage. 22 The common law doctrine of inter-spousal immunity barred a wife from bringing a cause of a ction, witho ut her husb and s con currence, in order to recover for losses sustained as a result of either person or proper ty injury. Boblitz v. Boblitz, 296 Md. 242, 244, 462 A.2d A.2d 506, 507 (1983 ). In Boblitz, Ms. Lauretta Baseman-Boblitz was injured as a result of her husband s negligent operation of an auto mobile . Boblitz, 296 Md. at 243, 462 A.2d at 507. In that case, therefore, we were called upon to determine whether the commo n law doctrine remained viable, in light of Article 46, as an affirmative defense to an action arising in tort when the wife s personal in jury occurred a s the result of negligence of her husband. Boblitz, 296 Md. at 244, 462 A.2d at 507. As Appellees point out, we held there that any deprivation of rights based upon sex would contravene the basic law of this State. Our decision to abrogate the com mon law do ctrine, however, was based on the premise that such an archaic doctrine, founded entirely on the derogation of married women, Boblitz, 296 Md. at 245, 462 A.2d at 507, had no place in modern society. We find, therefore, that Appellees reliance on language parsed from Boblitz is misplaced. 25 Appellees turn to Giffin for the proposition that sex is no t, and cann ot be, a facto r in the enjoyment or the determination of legal rights. 351 Md. at 148, 716 A.2d at 1036. As with the other ca ses relied on by Appellee s, we con clude, upo n reflection, th at Giffin does not support their argument as mounted. In Giffin, the primary issue was wh ether the Court of Special Appeals was correct in concluding that the sex of each parent, relative to the sex of their children born during the marriage, was a permissible factor to be considered in the grant of child custod y at the diss olution of the m arriage . In that case, Ja mes M . Giffin and Donna L. Crane entered, upon their divorce, an agreement whereby Mr. Giffin was awarded physical custody of the couple s tw o daugh ters. Giffin, 351 Md. at 135-36, 716 A.2d at 1030-31. The agre ement pro vided for a nnual revie ws by a disinte rested men tal health profession al, at the request of the non-custodial parent, of the residential status of the children. Giffin, 351 Md. at 137, 716 A.2d at 1031. Ms. Crane requested in 1995 an annual review of the residential statu s of the child ren and, fo llowing an unfavor able recommendation by the health professional, filed in the C ircuit Court for Mo ntgomery County a petition for mo dificatio n of cu stody. Giffin, 351 Md. at 138, 716 A.2d at 1032. The trial court granted the petition, holding that, even though both parents were otherwise qualified to care for the children, the daughters particular need for a female influence was a necessary factor in the court s determination that the mother should be granted custody. Giffin, 351 Md. at 139-141, 716 A.2d at 1032-33. In other words, the dete rmination of custod y was ba sed ent irely on se x. 26 Viewing the reasoning of Giffin in its context, it is clear that the Court s statement that sex is not, and cannot be, a factor related to distinctions drawn between men and women as classes. See Giffin, 351 M d. at 149, 71 6 A.2d a t 1037 ( [T ]he e quality between sexes demanded by the Maryland [ERA] focuses on rights of individuals under the law, which encompass all forms of privileges, immunities, benefits and responsibilities of citizens. ) (citing Burning Tree I, 305 Md. at 70, 50 1 A.2d at 825) (em phasis added). In other words, the grant of child custody no longer could be based on pre-conce ived notion s, based sole ly on the parents sex, concerning the care a certain parent was capable of providing. Virtually every Maryland case applying Article 46 h as dealt with situations where the distinction drawn by a particular governmental enaction or action singled-out for dispara te treatment men and women as discrete classes. See, e.g., Turner v. S tate, 299 Md. 565, 474 A.2d 1297 (1984) (inv alidating a law that made it unlawful for any tavern, concert hall, or other place of variety entertainment to employ female sitters,23 but which made no mention of males hired for the sam e purpose ); Condore v. Prince George s Co., 289 Md. 516, 425 A.2d 1011 (1981) (determining that the aspect of the common law of necessaries obligating a husband to provide f or the wife s necessities, re gardless of the income of the parties, 23 Sitters were individuals employed by a place of entertainment for the purpose of generating sales by circulatin g among st the patrons in order to solicit them to purchase drinks or other ite ms. Turne r v. State, 299 M d. 565, 569, 474 A .2d 1297, 1298-9 9 (1984). In Turner, for example, the proprietor of a tavern required female dancers employed by the tavern to intera ct with p atrons in order to produ ce sales . Turner, 299 Md. at 569, 474 A.2d at 1299. 27 unconstitutio nally burdened an entire class of citizens base d on sex); Kline v. An sell, 287 Md. 585, 414 A.2d 929 (1980) (holding unconstitutional the cause of action of criminal conversation24 that, at comm on law, w as available o nly to a man); Kerr v. Kerr, 287 Md. 363, 412 A.2d 1001 (1980) (upholding provision of Maryland Constitution providing for imprisonment for failure to pay child sup port becau se it applied eq ually to men and w omen); accord Hoffman v. Hoffman, 50 Md. App. 240, 437 A.2d 247 (1981) (rejecting an exhusband s argum ent that the award of alimony payments to his ex-wife violated Article 46 on the basis that, unlike the payment of necessaries, the statute governing the award of alimony is sex-neutral such that either party to a marriage is entitled to an award of alimony if appropriate under the circu mstances of the pa rticular case).25 24 Criminal Conversation, at common law, was the act o f adu ltery c omm itted by a married wom an. Kline v. An sell, 287 Md. 585, 586-87, 414 A.2d 929, 929 (1980). Criminal conversation was actionable by a husband against the third party male who engaged in sexual intercourse with th e marrie d wom an. B LACK S L AW D ICTIONARY 402 (8th ed. 2004). O nly a man could s ue or be sued u nder th e doctrin e. Kline, 287 at 586-87, 414 A.2d at 929. 25 The trend of this lin e of prece dent, as our judicial peers in Vermont have indicated when similarly confronted, is consistent with the seminal U.S. Supreme Court equal protection cases a ddress ing clas sificatio ns base d on se x. See Baker v. Vermont, 744 A.2d 864, 881 n.13 (1999). In each of these landmark decisions, the U.S. Supreme Court struck down as unconstitutional statutes that differentiated between men and wome n as discrete classes for the p urpose s of un equal tre atmen t betwe en the s exes. Id. See, e.g., United States v. Virginia, 518 U.S. 515, 555-56, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (invalidating a Virginia statute exclud ing wom en from a citizen-sold ier program offered a t Virginia Military Institute); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) (holding unconstitutional a Mississippi University for Women admission policy denying the adm ission of an adult male to the nursing education program solely because of his sex); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (striking down an Oklahoma statute that allowed females to purchase 3.2% beer at the age (contin ued...) 28 Based on our precedents interpreting Article 46, we conclude that the Legislature s and electorate s ultimate goal in putting in place the Maryland ERA was to put men and women on equal ground, and to subject to closer scrutiny any governmental action which singled out for disparate treatme nt men or w omen as discrete classe s. As we stated in Burning Tree I, [t]he cases construing equ al rights amendmen ts share a common thread; they generally invalidate governmental action which imposes a burden on one sex but not the other, or grants a benef it to one b ut not th e other. . . . Burning Tree I, 305 Md. at 70, 501 A.2d at 825; see also Burning Tree I, 305 Md. at 65-66, 501 A.2d at 82 3-24 ( T hat the [ER A] is essen tially limited in its scop e to unequal treatment imposed by the law as between the sexes is clear from ou r cases. ). 26 Unless the statute 25 (...continued) of 18, while prohibiting males from purchasing the same until they reached 21 ); Weinberger v. Wiesenfeld , 419 U.S. 822, 95 S. Ct. 38, 42 L. Ed. 2d 45 (1974) (declaring unconstitutional a federal statute providing that widows and divorced mothers, but not widowers, may collect social security benef its); Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (nullifying federal statute that made it more difficult for the spouses of service-women to claim dependent status for purposes of quarters allowance and medical benefits); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (rendering unconstitutional an Idaho statute that provided that, as between two or more persons eq ually qualified to be the adm inistrator of an estate, males are preferred to females). 26 The dissent points out that a p lurality of this Court in Burning Tree I rejected the equal application theory and attempts to label that discredited theory as one espoused anew by the majority here. Judge Battaglia s Dissent, slip op. at 1-13. Aside from the fact that the language quoted in the main text to this footnote was provided merely to synthesize the holdings of the mu ltitude of M aryland cases c ited previou sly in the majority op inion, the separate but equal approach, introduced by Chief Judge M urphy and re jected by a plura lity of that Court in Burning Tree I, 305 Md. at 79, 501 A.2d at 830, is not the equal (contin ued...) 29 26 (...continued) application theory grounding our analysis in the present case. Burning Tree I concerned the constitutionality of a primary purpose qualification to an anti-discrim ination prov ision upon which the receipt of preferential property tax assessme nts for priv ate cou ntry clubs was b ased. The qua lification provided that [t]he provisions of the section [prohibiting discrimination on the basis of, among other charac teristics,] sex shall not apply to any club whose facilities are operated with the prima ry purpose . . . to serve or be nefit mem bers of a p articular sex, nor to clubs which exclude certain s exes on certain d ays and a t certain ti mes. Burning Tree I, 305 Md. at 57-58, 501 A.2d at 819. In other words, Burning Tree Club, an all-male cou ntry club, could discriminate against women based solely on their sex, yet still enjoy the preferential treatment pursuant to the primary purpose exemption, so long as the exclusion of women was to tal. Burning Tree I, 305 M d. at 58-59, 501 A.2d at 819-20. The circuit cou rt held that the primary purpose provision, alth ough ge nder neu tral by its language , was discrim inatory in its effect. In Burning Tree I, Chief Judge Murphy, writing for two others, espoused a so-called separate but equal approach, 305 Md. at 79, 501 A.2d at 830, wh ich provide d essentially that, [u]nder its terms, the primary purpose provisio n is sex-neutral because it operates without regard to gender. Burning Tree I, 305 Md. at 71, 501 A.2d a t 826. Accord ing to the Chief Judge, the statute [did] no more than afford the tax benef it to all eligible priva te country clubs, whether com prised of all men, all wom en, or of mixed m embership, in return for the club s ag reement to preserve its open spaces in the public interest. Id. Because there was nothing in th e statute to prohibit all-women clubs from forming and excluding all men from membe rship, while still enjoying the statute s protections, Chief Ju dge M urphy and h is two colleag ues felt that the s tatute did not imp licate the ERA . Burning Tree I, 305 Md. at 78, 501 A.2d at 830 ( The mere fact that Burning Tree is the only club presently qualifying under the primary purpose provision does not of itself change a sex-neutral statute into a nefarious state sponso red schem e to invidiou sly discriminate a gainst women solely on account of their sex. Needles s to say, [the statute ] did not cau se there to be no all-fem ale country clubs. ). Chief Judge Murph y opined also that the State s acquiescence in the country club s discrimination did not amount to state action. Burning Tree I, 305 Md. at 7677, 79, 501 A.2d at 828-29, 830. R ecognizin g, howe ver, that his se parate but e qual approach was not going to command a majority of the Court, 305 Md. at 80, 501 A.2d at 83031, Chief Judge Murphy opined that the primary purpose provision was not severable from the remainder of the a nti-discr iminatio n prov ision. Burning Tree I, 305 Md. at 81-84, 501 A.2d at 831-32. (contin ued...) 30 26 (...continued) Although Judge Rodowsky agreed with Chief Judge Murphy that the club s participation in the open space program did not, by itself, am ount to state actio n, Burning Tree I, 305 Md. at 85, 501 A.2d at 833 (Rodowsky, J., concurring), he opined that the primary purpose provision itself was state action and violative facially of the ER A. Burning Tree I, 305 Md. at 85-86, 501 A.2d at 8 33 (R odowsk y, J., concurring ). He wro te separately because, in his view, the lead opinion ha[d] not identified, and responded directly to, [the plaintiffs ] argument that the primary purpose provision by its terms single[d] out for special exception from an otherwise uniformly applicable anti-discrimin ation mea sure private discrimination of a certain type - sex - and to a certain deg ree - total - wh ich neither the State nor a private club receiving a tax exemption could otherwise practice. Burning Tree I, 305 Md. at 85, 501 A.2d at 833 (Rodowsky, J., concurring). In stating his view that the prima ry purpose provision would violate clearly on its face the ERA, Judge Rodowsky explained that, in application, th e provision will always be applied to a particular sex, the one excluded by a given, participating club. In all of the cases previously decided by this Court in which a rule of common law or a statute was invalidated under the E.R.A. the rule or statute itself isolated one sex and specified either males or females for different burdens or benefits. Burning Tree I, 305 Md. at 87, 501 A.2d at 834 (Rodowsky, J., concurring). Thus, in the context of sex discrimination, only one sex will be the object of discrimination. Id. In rejecting the separate but equal approach presented by the Chief Judge, Ju dge Rodow sky concluded that [i]t is not an answ er . . . to say that at the elevated level of the statewide open spa ce program , the program . . . is neutral with respect to sex, in the sense that an all female or an all male country club is eligible to participate. The ostensible prohibition against sex discrimination applies to each individual country club participating in the open space program. Id. Judge Rodowsky agreed that the primary purpose provision was not severable from the anti-discrimination provision. Burning Tree I, 305 Md. at 88, 50 1 A.2d at 835 (R odowsky, J., concurring). Judge Eldridge, w riting for him self and two other judge s, disagreed complete ly with Chief Judge M urphy, opining that, [i]f the views set forth in [the majority s ] opinion were in the future to be adopted by a majority of this Court, the effectiven ess of the [ E.R.A.] to the Maryland Constitution would b e substantially impaired. Burning Tree I, 305 Md. at 89, 501 A.2d at 835 ( Eldridg e, J., concurring in part, dissenting in part). Judge Eldridge took issue specifically with what he deemed to be the majority s separate but equal approach that the primary purpose provision [did] no t apportion o r distribute ben efits or burd ens uneq ually among the sexes and ma[d]e[] the statutory benefit available to all single sex country clubs agreeing to participate in the State s open space program. Burning Tree I, 305 Md. at 9091, 501 A.2d at 836 (Eldridge, J., concurring in part, dissenting in part). Judge Eldridge (contin ued...) 31 26 (...continued) criticized additionally Chief Judge Murphy s opinion that the exp ress sanction ing of sing le sex clubs [did not] impos[e] a burden upon the excluded sex, as long as the governmental action in theo ry equally sanction[ed] discrimination by single sex facilities against persons of the other sex. Burning Tree I, 305 Md. at 95, 501 A.2d at 838 (Eldridge, J., concurring in part, dissenting in part). Instead, Judge Eldridge opined that the ERA should be construed broadly in accordance with its language and purpose, cataloging several cases that, as we have stated in the m ajority opinion in the present c ase, dealt exp ressly with situations where the line was drawn clearly between men and women in terms of the burdens imposed and benefits confe rred up on them . Burning Tree I, 305 Md. at 89, 501 A .2d at 83 5 (Eldr idge, J., concurring in part, dissenting in part) (discussing Kuhn, Rand, Condore, Kline, and cases from other jurisdictions of similar import). Judge Eldridge found fault further in Chief Judge Murphy s separate b ut equal th eory, based on the fact that, in his opinion, [w]hile it is true that many of our prior cases have involved government action directly imposing a burden or conferring a benefit en tirely upon either m ales or fem ales, we ha ve never h eld that the [ERA] is narrowly limited to such situations. Judge Eldridge determined finally that the primary purpose provision was severable from the anti-discrimination provisio n, Burning Tree I, 305 Md. at 102, 501 A.2d at 842. The end result was a four member m ajority of concurring judges that the prim ary purpose provision constituted state action violative of the ERA. Because Chief Judge Mu rphy, joined by two other judge s and Judg e Rodo wsky, were of the opinion that the primary purpose provision was not severable from the remainder of the anti-discrimination provision, the entire provision was invalidated. Despite the dissent s attem pts here to turn Judge E ldridge s opinion into something it is not, the narrow interpretation, to which Judge Eldridge referred, pertained to Chief Judge Murphy s proposed construction of the ERA requiring language of the challenged statute to single out, in express gend er-specific terms, either males or females. Judge Eldridge s argument, in essence, was that, merely because the primary purpose provision did not refer either to males or females in gender-specific terms, that did not save the statute when it sanctioned total discrimination of one sex by members of the opposite sex. Burning Tree I, 305 M d. at 98-99, 5 01 A.2d at 835 (Eld ridge, J., concu rring in part, dissenting in part) ( Th e principal cla ssification implicating the E.R.A. arises from the language authorizing clubs, to tally segregated o n the basis o f sex, to ma intain their discriminatory practices and, at the same time, to continue receiving sig nificant state b enefit. On the other hand, sexually integrated country clubs are generally precluded from (contin ued...) 32 under scrutiny grants, either on its face or in application,27 rights to men or women as a class, to the exclusion o f an entire su bsection of similarly situated m embers o f the oppo site sex, the provisions of the ERA are not implicated and the statutory classif ication und er review is subjected to rational bas is scrutiny, unless there exists some other reason to apply heightened scrutiny. Turning to the language of Family Law § 2-201, it becomes clear that, in light of the aforementioned purpose of the ERA, the marriage statute does not discriminate on the basis of sex in violation of Article 46. The limitations on marriage effected by Family Law § 2201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or 26 (...continued) discrim inating o n the ba sis of se x. ). In sum, the opinions of Judges Eldridge and Rodowsky, which ultimately represented a plurality opinion of this Court, that the primary purpose provision was violative of the ERA, Burning Tree I, 305 Md. at 91 n .5, 501 A.2d at 836 n.5 ( In effect, the Court s entire mandate in this case reflects the conclusions of only one member, Judge Rodowsky. ) (Eldridge, J., concurring in part, dissenting in part), was based on the fact that the statute allowed a club, whether comprised of all males or all females, to exclude all members of the opposite sex while still enjoying deferred assessments for the purposes of real estate taxation. Chief Judge Murphy s separate but equal approach to interpreting the ERA, rejected by the plurality in Burning Tree I, differs substantially from the equal application theory relied on by the majority of th e Court in th e present ca se. While th e plu rality i n Burning Tree I determined that a statute was violative of the ERA when it allowed, albeit in gender-neutral terms, the exclusion of the entire opposite sex by a uniform-gender club, we deal here w ith a statute that in no way singles out an entire group of persons based on sex. The equal application theory proposed here is not inconsistent with the plurality in Burning Tree I. 27 Burning Tree I, 305 Md. at 100, 501 A.2d at 841 (Eldridge, J., concurring in part and dissenting in part) ( Ev en whe n a statute is not facially discriminatory, or does not expres sly draw or recogn ize a suspec t classification, a n inquiry into the actual facts, to determine the existence of a discriminatory purp ose and impact, is appro priate. ) (citations omitted). 33 in its applic ation, pla ce men and w omen on an u neven playing f ield. Rather, the statute prohibits equally both men and women from the same conduct. A legislative enactment should be construed according to the ordinary and natural import of the language used without resorting to su btle or forced interpretations for the purpose of limiting or extending its operation. Massage Parlors, Inc. v. Mayor & City Cou ncil of Balt., 284 Md. 490, 494, 398 A.2d 52, 55 (1979) (quoting Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976)). To accept Appellees contention that Family Law § 2-201 discriminates on the basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assemb ly and the State s voters who enac ted a nd ra tified, res pect ively, the amendm ent. In other words, it stretch[es] the concept of gende r discriminatio n to assert that [the marriage statute] applies to treatment of same-sex couple s differ ently from oppos ite-sex c ouples . Dean v . Dist. of Colum bia, 653 A.2d 307 , 363 n.2 (D.C. 199 5) (Steadman, J., concurring ). C. Interpretations Given Equal Rights Amendments By Other Jurisdictions In Similar Situations. Perhaps mos t persuas ive h ere is the g row ing b ody of case law from foreign jurisdictions flatly rejecting the argument that statutes that limit marriage to unions between a man and w oman discrim inate im permis sibly on th e basis o f sex. Rand, 280 Md. at 512, 374 A.2d at 903 ( Cases from other state jurisdictions interpreting the breadth and meaning of their equal rights amendm ents are instructive in ascertaining the reach of Maryland s [ERA]. ). 34 The Court of Appeals of Washington, in Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974), was one of the first ap pellate courts to weigh-in on same-sex marriage in light of the then-newly promulgated ERA. There, the court held that [p]rior to adoption of the ERA, the pro position that women were to be accorded a position in the law inferior to that of men had a long history. Thus, in that context, the purpose of the ER A is to provide the legal protection, as between men and women, that apparently is missing from the state and federal Bills of Rights, and it is in light of that purpose that the language of the ERA must be construed. To accept the [same-sex couples ] contention that the ERA must be interpreted to prohibit statutes which refuse to permit same-sex marriages would be to sub vert the purpose for which the ERA was enacted by expanding its scope beyond that which was undoubtedly intended by the majority of the citizens of this state who voted for the amendm ent. Singer, 522 P.2d at 1194. T he majo rity of federal and state courts called on to consider analogous legal challenges since then have disposed of equal rights challenges in a similar manner. See, e.g., In re Kandu, 315 B. R. 123 (B ankr. W.D. W ash. 2004) (upholding the constitutiona lity of the federal D efense of Marriag e Act (D OMA ) and stating, [t]here is no evidence, from the voluminous legislative history or otherwise, that DOMA s purpose is to discriminate against men or women as a class. Accordingly, the marriage definition contained in DOMA does not classify according to gender . . . . ); Hernandez v. Robles, 855 N.E.2d 1, 6 (2006) ( By limiting marriage to opposite-sex couples, [the State] is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and Men are treated alike-the y are 35 permitted to marry peop le of the opp osite sex, but n ot people o f their own sex . ); Andersen v. King Co., 138 P.3d 963, 987-89 (2006) (holding that the state DOMA does n ot discriminate on the basis of sex and cataloging the various cases from other jurisdictions interpreting their own equal rights a mendm ents); Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971); but see Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *6 (Alas ka. Super. C t. 27 Febru ary 1998 ), superceded by A LASKA. C ONST. art. I, § 25 (amen ded 199 9); Baehr v. L ewin, 852 P.2d 44, 64 (H aw. 1993) (plurality opinion) (determining that same-se x marriage statute drew a sex-ba sed clas sificatio n), abrogated by 1997 H AW. S ESS. L AW H.B. 117 § 2, at 1247 ( The Legislature shall have power to reserve marriage to opposite-sex c ouples. ). The Supreme Court of Vermont, in Baker v. Vermont, 744 A.2d 864 (Vt. 1999), despite holding unconstitutional the exclusion of same-sex couples fr om the va rious bene fits and protections that accompany marriage, rejected the argument that a statute limiting marriages to those between a man and woman constitutes sex-based discrimination. As the Vermont court stated, [ t]he difficu lty here is that the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex. Baker, 744 A.2d at 881 n.13. Because there is no discrete class subject to differential treatment, according to the court s analysis, the prohibition on same-sex marriage did not draw a sex-based classification. D. Individuality of Rights Argument Presented by Appellees 36 Appellees counter the equal application theory by stating that the p roper inqu iry in this case is not whether Family Law § 2 -201 single s out one se x or the othe r as a discrete class for dispara te treatment. Rather, because constitutional rights are individual rights, the same-sex couples p osit that this Co urt should examine how the legislative enactment affects individually each perso n seeking to marry. App ellees rely principa lly in support of th is argument on Loving v. V irginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), the landmark U.S. Supreme Court equal protection case in which the Court held unconstitutional a Virginia miscegenation statute despite the fact that the statute punish[ed] equally both the white and the Negro particip ants in a n interra cial ma rriage. 28 Loving, 388 U.S. at 8, 11- 28 Appellees rely additionally upo n other case s containing reasoning similar to that in Loving. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964) (rendering unconstitutional a statute that made criminal the co-habitation between an African America n and C aucasian p erson); Perez v. Lip pold, 198 P.2d 17 (Cal. 1948) (striking down Califo rnia statu te that pr ohibited interrac ial marri age). Still other cases cited by Appellees, such as Shelley v. Kramer, 334 U.S. 1, 68 S . Ct. 836, 92 L. Ed. 1161 (1948), clearly are distinguishable from the present case. In Shelley, the issue was whether a restrictive covenant prohibiting perso ns of colo r from rea l property ownersh ip was viola tive of the F ourteenth Ame ndme nt to the U .S. Con stitution. 334 U.S. at 4, 68 S. Ct. at 838, 92 L. Ed. 1161. Even though the defendants in that case argued that the covenan t was app licable to members of all races (because the Court in previous cases was prepared to enforce similar restrictive covenants applicable to African Americans and Caucasians), Shelley, 334 U.S. at 21-22, 68 S. Ct. at 846, 92 L. Ed. 1161, the Court found no merit in the argument. We fail to see how a statute that so patently discriminated on the basis of race sheds a ny light on the pres ent case . Reliance upon Califano v . Westcott, 443 U .S. 76, 99 S. Ct. 2655, 61 L. Ed. 2d 382 (1979) is likewise misplaced. In that case, the S upreme C ourt struck d own a f ederal statute that provided benefits to families whose fathers had become unemployed, but denied those (contin ued...) 37 12, 87 S. Ct. at 1 822, 182 3, 18 L. Ed . 2d 1010 ; see also McLaughlin v. Florida, 379 U.S. 184, 188, 85 S. Ct. 283, 286, 13 L. Ed. 2d 222 (196 4). The an alogy to the pre sent case is inapt. We must concede at the outset that the mere equal application of a statute does not shield automatically a discriminatory statute from constitutional review under either the Equal Protection Clause of the Fourteenth Amendment, the equal protection provisions 28 (...continued) same benef its whe re the m others lo st their job s. Califano, 443 U.S. at 79, 99 S. Ct. at 265758, 61 L. Ed. 2d 382. In other words, the statute put an express sex qualification on the receipt of fam ilial bene fits. Califano, 443 U.S. at 79, 99 S. Ct. at 2658, 61 L. Ed. 2d 382. The argument made in support of the statute was that, although it contained an express sex classification, it did not discriminate against women as a class because the entire family was impacted. Califano, 443 U.S. at 83-84, 99 S. Ct. at 2660-61, 61 L. Ed. 2d 382. Although the Court rejected this argument, it did so on the basis that the statute was part of the baggage of sexual stereotypes, Orr v. Orr, [40 U.S. 268, 283, 99 S. Ct. 1102 , 1113], 59 L. Ed. 2d 306 [(1979)], that presumes the father h as the prim ary responsibility to provide a home and its essentials, Stanton v. Stanton, 421 U.S. 7, 10, 95 S. Ct. 1373, 1376, 43 L. Ed. 2d 688 (1 975), while the m other is the center of home and family life. Taylor v. Louisiana, 419 U.S. 522, 5 34 n.15, 95 S. Ct. 692, 699 n.15, 42 L. Ed. 2d 690 (1975). Califano, 443 U.S. at 89, 99 S. Ct. at 2663 , 61 L. Ed. 2d 382. The distinction drawn by Family Law § 2-201 in the present case is not based on this sort of arc haic stereotyping, and is therefore distinguishable from the federal statute at issue in Califano. Appellees cite a dditiona lly Giffin and Burning Tree I in support o f their argum ent. For the reasons stated earlier in this opinion, those cases also are distinguishable from the case at b ar. 38 embodied in Article 24 of the Maryland Declaration of Rights,29 or the E RA. See McLa ughlin, 379 U.S. at 191 , 85 S. Ct. at 28 8, 13 L. Ed . 2d 222; Loving, 388 U.S. at 8, 87 S. Ct. at 1 822, 18 L. Ed. 2 d 1010 . By the same token, however, a statute does not become unconstitutional simply because, in some manner, it makes refer ence to race or s ex. See Massage Parlors, Inc . v. Mayo r & City Counc il of Balt., 284 Md. 490, 398 A.2d 52 (1979) (upholding the constitutionality, pursuant to Article 46, of a Baltimore City ordinance that prohibited massage parlors from providing treatment sim ultaneously to persons of the opposite sex in the same room , but declining to reach on p rocedural grounds a separate challenge to the constitutionality of a regulation promulgated pursuant to the ordinance that allegedly prohibited heterosexual m assages as betwee n the masseuse/m asseur and client). In Loving, the issue before the C ourt was the constitutionality of a Virginia statutory scheme prohibiting marriage between non-Caucasians and Caucasians, and providing for criminal penalties for violations. In support of the statute, the State of Virginia arg ued that, even though reference was made to race in determining who was entitled to marry, it punished equally both pa rticipan ts in the in terracial marriag e. Loving, 388 U.S. at 8, 87 S. Ct. at 1821, 18 L. Ed. 2d 1010. The Supreme Court was able to see beyond the superficial 29 See, e.g., Neifert v. Dep t of Env t, 395 Md. 486, 504, 910 A.2d 1100, 1111 (2006) ( Although Article 24 does not contain an express equal protection clause, this Court has held that the con cept of eq ual protection is embodied within the Article. ); Frankel v. Bd. of Regents , 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (internal citations om itted); Governor v. Exxon Corp., 279 Md. 410, 438 n.8, 370 A.2d 1102, 1 118 n.8 (1977 ), aff d, 437 U.S. 117, 98 S. C t. 2207, 57 L. Ed. 2d 9 1 (1978). 39 neutrality of the legislative enactment, however, and determined that [t]he fact that Virginia prohibits only interracial m arriages invo lving white persons demonstrates that the racial classifications must stand on their own justification, as m easures de signed to m aintain W hite Supre macy. Loving, 388 U.S. at 11, 87 S. Ct. at 1823, 18 L. Ed . 2d 1010. Thus, the C ourt in Loving determined that, although the statute applied on its face equally to all races, the underlying purpose was to sustain White Supremacy and to subordinate African-Americans and other non -Caucas ians as a class. The reasoning behind this conclusion was based, at least in part, on the fact that [w ]hile Virginia prohibits w hites from m arrying any nonw hite . . . , Negroes, Orientals, and any other ra cial class may intermarry without statutory interference. Loving, 388 U.S. at 11 n.11, 87 S. Ct. at 1823 n.11, 18 L. Ed. 2d 1010.30 The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose. Baker, 744 A.2d at 880 n.13 (quoting Personnel Ad m r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 30 Although the Supreme Court in McLa ughlin did not hold expressly that the latent purpose behind the cohabitation statute at issue was based on White Supremacy, the reasoning in that case is e xceeding ly similar to that em ployed in Loving. The Court held that [b]ecause the section a pplies only to a white person and a N egro who commit the specified acts and because n o couple other than one made up of a white and a Negro is subject to conviction upon proof of the elemen ts comprisin g the offe nse it proscribes, we hold [the statute] invalid as a denial of the equal protection of the law s guarantee d by the Fou rteenth Am endmen t. McLa ughlin, 379 U.S. at 184, 85 S. Ct. at 284, 13 L. Ed. 2d 222. 40 2293, 60 L. Ed. 2d 870 (1979)). And while [t]he clear and c entral purpo se of the F ourteenth Amendment was to eliminate all official state sources of invidious racial discriminatio n in the States, Loving, 388 U.S. at 11, 87 S. C t. at 1823, 18 L. Ed. 2d 1010, the primary purpose behind Article 46 is to frustrate state action th at separates m en and w omen into discrete classes for dispara te treatment as between the sexes. Absent some showing that Family Law § 2-201 was designed to subordinate either men to wom en or w omen to men as a clas s, Hernandez, 855 N.E .2d at 11 ( T his is not the kind of sham equa lity that the Supreme Court confronted in Loving; the statute there . . . was in substance anti-black legislation. ), we find the analogy to Loving inappo site. See also, e.g., Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971) (determining that Virginia s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. ). Because there is no evidence in the record be fore us tha t the Legislatu re intended with Family Law § 2-201 to differentiate between men and women as classes on the basis of some misconception regarding gender roles in our society, we conclude that the ERA does not mandate that the State recognize same-sex marriage based on the analogy to Loving. See In re Kandu, 315 B .R. 123 , 143 (B ankr. W .D. W ash. 2004) ( There is no evidence, from the voluminous legislative histo ry or otherwise , that DOM A s purp ose is to discriminate against men or wom en as a class . ); Andersen, 138 P.3d at 989; Baker v. Vermont, 744 A.2d at 880 n.13 (concluding that the evidence on the record before the court did not demonstrate that the authors of the marriage laws excluded same-sex couples because of incorrect and 41 discriminatory assumptions about gender roles or anxiety about gender-role confusion ); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974) ( [There] is no analogous sexual classification involved in the instant cas e because appellants are not being denied en try into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one that may be entered into only by two person s who are me mbers of the o pposite sex. ), review denied, 84 Wash.2d 10 08 (1974). 31 II. Standards of Constitutional Review for Article 24 Challenges based on the Concepts of Substantive Due Process and Equal Protection. In addition to A ppellees cla im that Family Law § 2-201 disc riminates on the basis of sex in violation of Article 46, the same-sex couples se eking to m arry challenged Family Law § 2-201 as violative of Article 24 of the Maryland Declaration of Rights.32 Appellees Article 24 challenge has three facets: (1) Family Law § 2-201 should be subject to strict scrutiny under principles of equal protection33 because it discriminates on the basis of sexual 31 Judge Raker, in her Concurring and Dissenting Opinion, apparently concurs with the foregoing analysis and conclusion that the Maryland statute is not violative of Article 46 (the Equal Rights Amendmen t) of the Maryland Declaration of Rights. 32 Article 24 of the Declaration of Rights provides [t]hat no man o ught to be ta ken or imp risoned or d isseized of h is freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgm ent of h is peers, o r by the L aw of the land . 33 As delineated previously, there is no express equal protection prov ision foun d within (contin ued...) 42 orientation, a classification that the App ellees claim is suspect or q uasi-suspe ct; (2) Article 24 mandate s that strict scrutiny be applied to F amily Law § 2-201 b ecause the statute prevents same-sex couples from exercising their funda mental righ ts to marry wh ile allowing, at the same time, opposite-sex couples to do so; and (3) the s tatute burdens u nconstitution ally the exe rcise of the sam e-sex c ouples fund amen tal due p rocess r ights to m arry. Before proceeding, we pause to reiterate the three levels of constitutional scrutiny employed in our jurisprudence when a legislative enactment is challenged under either the due process or equal protection concepts embedded in Article 24. As we explained in Waldron, [t]he top tier of [constitutional] review contemplates that when a statute creates a distinction b ased upo n clearly suspe ct 34 criteria, or when that enactment infringes upon 33 (...continued) Article 24. Article 24 embodies[, howev er,] the conc ept of equ al protection o f the laws to the same extent as the Equal Protection Clause of the Fourteenth Amendment. Murphy, 325 Md. at 353-54, 601 A .2d at 107-08 (citations om itted); Neifert v. Dep t of Env t, 395 Md. 486, 504, 910 A.2d 1100, 1111 (20 06); Frankel v . Bd. of Reg ents, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000 ) (internal citations omitted); Bd. of Supervisors of Elections of Prince George s County v . Goodse ll, 284 Md. 279, 293 n.7, 39 6 A.2d 1 033, 104 0 n.7 (197 9); U.S. Mortgage Co. v. Matthews, 167 M d. 383, 3 95, 173 A. 903 , 909 (1 934), rev d on other grounds, 293 U.S. 232, 55 S. Ct. 168, 79 L. Ed. 2d 279 (1934) (determining that Article 24 should be construed at least to the extent of the Fourteenth Amendment). Thus, even though the Fourteen th Amendment and Article 24 are independent of each other and capable of being interpreted differently, U. S. Supre me Cou rt cases con struing the F ourteenth Amendment are highly persuasive with regard to our interpretation of Article 2 4. Murphy, 325 Md. at 35 4, 601 A .2d at 108; Waldron, 289 Md. at 705, 426 A.2d at 941 (citations omitted); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 640, 458 A.2d 758, 781 ( [D]ecisions of the Supreme Court interpreting the Equal Protection Clause of the federal constitu tion are p ersuasiv e autho rity . . . . ). 34 The criteria by which we determine whether a statute draws a suspect (contin ued...) 43 personal rights or interests deemed to be fundamental, then the legislative product must withstand a rigorous, strict scrutiny. 289 M d. at 705-06 , 426 A.2d at 941; Hornbeck, 295 Md. at 641, 458 A.2d at 78 1; Wheeler v . State, 281 Md. 593, 601, 380 A.2d 1052, 1057 (1977) ( Equal protection analysis requires strict scrutiny of a legislative classification when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. ). When utilizing th is mostdemanding standard of constitutional review, we deem unconstitutional a challenged legislative classification unless the distinction formed by it is necessary to promote a compelling governmental interest. Hornbeck, 295 Md. at 641, 458 A.2d at 78 1; Goods ell, 284 Md. at 286, 396 A.2d at 1037 (quoting Wheeler, 281 M d. at 601, 38 0 A.2d a t 1057); see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2 d 313 ( 1985) . Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600 (1969). In other words, the statute must be justified by a com pelling state interest, and drawn sufficiently narrowly that it is the least restrictive means for accomplishing that end . See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17, 93 S. Ct. 1278, 1287-88, 36 L. Ed. 2d 16 (1973). To no one s great surprise, classifications subject to strict sc rutiny rar ely survive the lega l glare. Hargrove v. Bd. of Trustees of Md. Retirement Sys., 310 Md. 406, 428, 529 A.2d 1372, 1383 (1987) (explaining 34 (...continued) classification or infringes on a fundamental right are discussed infra. 44 that the constitutionality of a particular classification often depends on the level of review under which it is an alyzed becau se a statute subject to strict sc rutiny is nearly always struck down under an analysis that [has historically been] strict in theory and fatal in fact ) (quoting Waldron, 289 Md. at 707-08 , 426 A.2d at 942 (citation s omitted)); see also Mass. Bd. of Retirem ent v. Mu rgia, 427 U .S. 307, 317-27, 96 S. Ct. 2562, 2568-73, 49 L. Ed. 2d 520 (1976) (M arshall, J. Dissenting). In contrast, we generally employ the least exacting and most deferential standard of constitutional review when the legislative action under review neither interferes significantly 35 with a fundam ental right no r implicates a s uspect class ification. Un der this rational basis level of scrutiny, the classification will pass constitutional muster so long as it is rationally related to a legitimate governmental interest. Murphy, 325 Md. at 355-56, 601 A.2d at 108;36 City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 251617, 49 L. Ed. 2d 511 (1976) ( Unless a classification tra mmels fu ndamen tal personal rig hts or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our 35 For an in-depth discussion o f whether a particula r statute in terfe res sign ifica ntly with a fundamental right, see Koshko v. Haining, 398 Md. 404, 431-38, 921 A.2d 171, 18691 (2007) (holding that the Maryland grandparent visitation statute worked a direct and substantial interference upon parental rights with respect to the court-ordered visitation w ith their children by the grandparents). See also Hornbeck, 295 Md. at 653, 458 A.2d at 788 (holding that the heightened review test is not applicable in [that] case, because . . . there has been no significant interference with, infringement upon, or deprivation of the underlying right to take advantage of a [right to education] ) (emp hasis added). 36 Although this Court has articulated over the years several derivations of the rational basis titling of this standard, the application of the constitutional standard has been the same across all derivations. 45 decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. ). In other words, we will uphold the statute under rational basis review unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [go vernmen tal] actions were irrationa l. Id. (citations omitted). Statutes reviewed p ursuant to this level of scrutiny are presumed constitutiona l, and will be invalidated o nly if the classification is clearly arbitrary. Murphy, 325 M d. at 356, 60 1 A.2d a t 108; Whiting-Turner Contract Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178, 185 (1985) (holding that a statute reviewed under the rational basis test enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable bas is and is purely arbitrary ); Waldron, 289 Md. at 707, 426 A.2d at 942 (h olding that a statute will be upheld ge nerally unless the classification is wholly irrelevant to the achievement of the State s objective ) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101. 1104, 6 L. Ed. 2d 393 (1961) and McDonald v. Bd. of Elections, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739 (196 9)). [A] cla ssification [su bject to rational basis review] having some reasonab le basis need not be made with mathematical nicety and may result in so me in equality so long as the state can produ ce any co nceiva ble stat e of fa cts to ju stify the dis tinction . WhitingTurner, 304 Md. at 352, 499 A.2d at 18 5; City of New Orleans, 427 U.S. at 303, 96 S. Ct. at 2517, 49 L. Ed. 2d 51 1 ( [R]ationa l distinctions may be made with substantially less than 46 mathematical exactitude. ); Baker v. Nelson, 191 N.W .2d a t 314 ( A bstra ct sym metr y is not demanded by the Fourteenth Amendment. ). A statute subject to rational review often passes constitu tional m uster. Hargrove, 310 Md. at 428, 529 A.2d at 1383 (explaining that legislation subject to rational basis review almost always has re ceived m inimal scrutin y in theory and virtually none in fact ) (quoting Waldron, 289 Md. at 707-08, 426 A.2d at 942 (citations omitted)). A third level of review has arisen to leaven the rigid two-tiered constitutional framework by which courts review the constitutionality of government action. See Waldron, 289 Md. at 708-10, 426 A.2d 942-44. A heightened level of scrutiny, otherwise known as intermed iate scrutiny, is triggered when the challenged action creates a classification which ha[s] been subjected to a higher degree of scrutiny than the traditional and deferential rational basis test, but which ha[s] not [yet] been deemed to involve suspect classes or fundamental rights. Murphy, 325 Md. at 357-60, 601 A.2d at 109-11 (explaining the Supreme Court s ev olving app lication of h eightened scrutiny or ratio nal basis with bite to certain intermediate classifications); 37 Hargrove, 310 M d. at 428 , 529 A .2d at 1383 37 As explained in Murphy, 325 Md. at 358-60, 601 A.2d at 109-10, the Suprem e Court described these intermediate classifications in various ways over the years, ranging from subjecting the statute to heightened scrutiny, see Plyler v. Doe, 457 U.S. 202, 218 n.16, 103 S. Ct. 2382, 2395 n.16, 72 L. Ed. 2d 786 (198 2); Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 4 57, 50 L. E d. 2d 397 (1976); Mississippi University for Women v. Hogan, 458 U.S. 718, 723, 102 S. Ct. 3331, 3335, 73 L. Ed. 2d 1090 (1982), to application of rational basis with bite. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U .S. 432, 105 S. Ct. 3249, 87 L. Ed . 2d 313 (1985); Hooper v. Bernalillo County Assessor, 472 U.S. 612, (contin ued...) 47 (explaining the evolution of the traditional two-tiered approach into the current three-tiered constitutional framew ork); Waldron, 289 Md. at 709-11, 426 A.2d at 943-44 (explaining the Supreme Court s treatment of sex-based classifications as an active review of legislation not implicating rights previously determined to be fundamental or involving classifications held to be suspect. ). 38 This midd le-tier scrutiny ma y be implicate d to review a quasisuspec t classif ication. City of Cleburne, 473 U.S. at 440-42, 105 S. Ct. at 3254-55, 87 L. Ed. 2d 313. In order to surv ive this interm ediate level of scrutiny, the statute in question must serve important governmental objectives and must be substantially related to the achievement of those objectives. Murphy, 325 Md. at 358, 601 A.2d 110 (quoting Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 4 57, 50 L. E d. 2d 397 (1976)); Thomas v. D ep t of Labor, Licensing, & Regulation, 170 Md. App. 650, 668-89, 908 A.2d 99, 109-10 (2006 ). 37 (...continued) 105 S. Ct. 2862 , 86 L. Ed.2 d 487 (19 85); Williams v . Vermo nt, 472 U.S. 14, 105 S. Ct. 2465, 86 L. Ed. 2d 11 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S. Ct. 1676, 84 L. Ed. 2d 75 1 (1985); Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (1982). See also D. Stew art, A Growing Equal Protection Clause?, 71 A.B.A. J. (October) 108, 112 (1985) (quoting Victor Rosenblum, G. P ettinga, Rational Basis With Bite: Intermed iate Scrutiny by Any Other Name, 62 IND. L. J. 779 (1987)). A lthough ref erred to by different names an d employing differently phrased levels of constitutional review, the practica l differe nces be tween the two appea r slight. 38 Maryland, in light of the ERA, applies a strict scrutiny standard to statutes carving classifications based on sex whereas the Supreme Court applies intermediate scrutiny to sexbased govern menta l action. There are other areas, however, to which the Supreme Court has applied this intermed iate level of sc rutiny. Those sp ecific areas triggering heightened scrutiny will be discussed infra. 48 III. Equal Prote ction under A rticle 24 of the Decla ration of Rights A. A Statute That Discriminates on the Basis of Sexual Orientation Does Not Trig ger S trict o r He ightened Scru tiny. While Family Law § 2-201 does not draw a distinction based on sex, the legislation does differentiate implicitly on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those who pre fer relationsh ips with pe ople of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. Hernandez, 855 N .E.2d a t 11. See Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ( While it is true that the law [making it criminal for two consenting adults to engage in homosexual sodomy in the privacy of their own home] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homose xual. Und er such circu mstances , [the statute] is targeted at more than conduct. It is instead directed toward gay persons as a class. ) (O Connor, J., concurring). That Family Law § 2-201 draws a distinction based on sexual orientation is un disp uted . The actu al co ntrovers y here, therefore, is what level of constitutional scrutiny should be applied to a statute that tre ats citizens differently on that basis (i.e., whether sexual orientation constitutes a suspect or quasi-suspect class, thereby triggering one of the heightene d levels of scrutiny iterated above). Hernandez, 855 N.E.2d at 11. We find that sexual orientation is neither a suspect no r quasi-susp ect class, and Family Law § 2-201 therefore is subject to rational basis review. We explain. 49 There is no brightline diagnostic, annunciated by either this Court or the U. S. Supreme Court, by which a suspect or quasi-suspect class may be rec ognized readily. There are, however, several indicia of suspect or quasi-suspect classes that ha ve been u sed in Supreme Court cases to determine whether a legislative classification w arrants a more exacting constitutional analysis than that provided by rational basis rev iew. These factors include: (1) w heth er the gro up of peo ple d isadvantage d by a statu te dis play a read ilyrecognizable, obvious , immutab le, or distinguis hing characteris tics . . . 39 that define the group as a discrete and insular m inorit[y]; 40 (2) whether the impacted group is saddled with such disab ilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a p osition of p olitical powerlessness as to co mmand ex traordinary 39 Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 2729, 91 L. Ed. 2d 527 (1 986); Frontiero, 411 U.S. at 686, 93 S. Ct. at 1770, 36 L. Ed. 2d 583 ( [S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . . ) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175, 92 S . Ct. 1400, 1 407, 31 L . Ed. 2d 76 8 (1972)); see also Janet E. H alley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immuta bility, 46 S TAN . L. R EV. 503, 507 , 507 n.11 (1 994) ( [I]m mutability is not a requirement but a factor. ) (citing Bowen v. Gilliard, 483 U.S. 587, 602-03, 107 S. Ct. 3008, 3018, 97 L. Ed . 2d 485 (1 987)); Lyng, 477 U.S. at 638, 106 S. Ct. at 2729, 91 L. E d. 2d 527). 40 United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n.4, 58 S. Ct. 778, 78384, 82 L. Ed . 1234 (19 38); see also Mass. Bd. of Retirement v. Murgia , 427 U.S. 307, 313, 96 S. Ct. 2562, 2567, 49 L. Ed . 2d 520 (1 976); San Antonio Indep. School Dist. v. Rodriguez, 411 U. S. 1, 28, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (19 73); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S . Ct. 1848, 1852, 29 L . Ed. 2d 534 (197 1). 50 protection from the m ajoritarian po litical process; 41 and (3) w hether the c lass of peo ple singled out is subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities [to contribute meaningfully to soci ety]. 42 We have identified a similar, although not as comprehensive, set of criteria by which we may analyze allegedly new suspec t classes . Waldron, 289 Md. at 706, 426 A.2d at 941-42 (describing a suspect class as a ca tegory of peo ple who have experienced a history of purposeful unequal treatment or been su bjected to u nique disab ilities on the basis of stereotypical characteristics not truly indicative of their abilities. ) (quoting Mass. Bd. of Retirement, 427 U.S. at 313, 96 S. Ct. at 2566, 49 L. Ed. 2d 520). Because Article 24 is construed at least to the same e xtent as the F ourteenth A mendm ent, Murphy, 325 Md. at 354, 601 A.2d at 108; Waldron, 289 Md. at 705, 426 A.2d at 941 (citations omitted); Hornbeck v. Somers et County Bd. of Educ., 295 Md. at 640, 458 A.2d at 781, we find u seful in our analysis those additional criteria used by the Supreme Court in assessing claims of a new suspect or quasi-suspect classification. 41 Mass. Bd. of Retirement, 427 U.S. at 313, 96 S. Ct. at 2567, 49 L. Ed. 2d 520 (quoting San Antonio School District, 411 U.S. at 28, 93 S . Ct. at 1294, 36 L. Ed. 2d 16). 42 Mass. Bd. of Retirement, 427 U.S. at 313, 96 S. Ct. at 2567, 49 L. Ed. 2d 520; Frontiero, 411 U.S. at 686, 93 S. Ct. at 1770, 36 L. Ed. 2d 583 (determining that sex-based classifications trigger heightened scrutiny, and that the sex characteristic frequently bears no relation to ability to perform or contribute to society ). Even though Article 46 mandates that we apply strict scrutiny to gender-based classifications, this factor nonetheless is useful in de term ining wh ethe r a pa rticu lar cl assif ication w arrants h eigh tene d scr utiny. 51 Although the Supreme Court has characterized repeatedly as suspect classes distinctions based on race,43 alienage,44 and national origin,45 the Court has not addressed expressly whether sexual orientation is considered suspect, thereby implicating strict or heightened scrutiny. See Romer v. Evans, 517 U.S. 620, 631-32, 116 S. Ct. 1620, 1627-28, 134 L. Ed. 2d 855 (1996) (stating that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to som e legitimate end, and invalidating the statute at issue under rational basis review); In re Kandu, 315 B.R. at 144 (explaining that the Supreme Court, in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), did not address whether the Texas statute making it a crime to engage in consensual same-sex intimate conduct drew a suspect or quasi-suspect classification, but rather invalidated the Texas statu te on the ba sis that it did not reasonably further a legitimate government interest); Andersen, 138 P.3d at 976 (same). The closest any Justice has come to su ggesting a v iew on the issue is foun d in Rowland v. Mad River Local Sch ool Dist., 470 U. S. 1009, 1014, 105 S. Ct. 1373, 1376-77, 84 L. Ed. 2d 392 (1985) (Brennan, J., dissenting from the denial of certiorari), where Justice Brennan stated in his dissent to the denial of certiorari that hom osexuals have histor ically 43 E.g., Loving, 388 U.S. at 11, 87 S. Ct. at 1823. 44 Graham, 403 U.S. at 372, 91 S. Ct. at 1852, 29 L. Ed. 2d 534. 45 Oyama v. California, 332 U.S. 633, 644-46, 68 S. Ct. 269, 274-75, 92 L. Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 194, 89 L. Ed. 194 (1944). 52 been the object o f perniciou s and sustain ed hostility, and it is fa ir to say that discrimination against homose xuals is likely . . . to reflec t deep-s eated p rejudice rather th an . . . ration ality. The majority of other courts, both federal and state, that have ad dressed the issue hold that gay, lesbian, and bisexual persons neither are members of suspect nor quasi-suspect classifications. See, e.g., Selland v. Perry, 905 F . Supp . 260 (D . Md. 1 995), aff d, 100 f.3d 950 (4th Cir. 1996) (applying Maryland law in order to uphold the constitutionality of the military s Don t Ask, Don t Tell provisions regarding homosexuality, and determining that equal protection does not mandate strict scrutiny); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ( [H]omosexuals are not a suspect or quasi-su spect classific ation. ); In re Kandu, 315 B. R. at 143-44 (following the Ninth Circuit s decision in High Tech Gays, and determining that the Lawrence Court, w hile indicating a shift in the Supreme C ourt s treatment of same-se x couples, did not dec lare same-sex couples a suspect or quasi-suspect class for the purposes of equal protection analysis) (quoting Lawrence, 539 U.S. at 579-81, 123 S. Ct. at 2485, 156 L. Ed. 2d 508 (O Conno r, J., concurring) (applying a rational basis standard of constitutional review to the Texas sodomy statute prohibiting sexual conduct between two persons of the same sex)); Wilson v. Ake, 354 F. Supp. 2 d 1298, 1 307 (200 5) ( [H]o mosexu ality is not a suspect class that would require subjecting [the Florida Defense of Marriage Act] to strict scrutiny under the Equal Protection Clause. ) (quoting Lofton v. Sec. of Dep t of Children and Fam. Servs., 358 F.3d 804, 818 (2004) (holding post-Lawrence that homo sexuality is not a suspect class), 53 cert. denied, 543 U.S . 1081, 125 S. Ct. 869, 1 60 L. Ed . 2d 825 (2 005)); Andersen, 138 P.3d at 973-76 (explaining post-Lawrence that sexual orientation is not a suspect class and distinguishing the cases cited by the same-sex couples); Singer, 522 P.2d at 1196.46 We shall 46 Appellees cite Tanner v. Oregon, 971 P .2d 435 , 447 (O r. Ct. Ap p. 1998) , and Children s Hospital & M ed. Ctr. v. Bo nta, 118 C al. Rptr. 2 d 629, 6 50 (Ct. App. 2002), as authorities finding sex ual orientation to be a susp ect basis for clas sificatio n. In Tanner, the Oregon Court of Appeals stated: [W]e have no difficulty concluding that [lesbian and gay people] are members of a suspect class. Sexual orientation, like gender, race, alienage, an d religious af filiation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond disp ute that hom osexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice. Tanner, 971 P .3d at 44 7. Reliance on these two cases is misplaced because both are distinguishable from the instant c ase or u npersu asive. Tanner involved an analysis pursuant to Oregon s privileges and immunities clause, and does not compel a similar finding under our equal protection jurisprudence. See Andersen, 138 P.3d at 975 ( The [privileges and immunities clause] analysis bears little resemblance to the analysis that applies under the equal protection clause. ). Children s Hospital likewise is distinguishable. While the California appellate court in that case stated that sexual orientation is a suspect classification subject to strict scru tiny, the issues did not pertain even remotely to gay and lesbian equal protection. Rather, the case involv ed a cons titutional challen ge to disparate reimbursement between in-state and out-of-state hospitals providing services under California s M edi-Cal system. The court tendered its suspect classification observation only in passing and without the benefit of any sort of supporting author ity. Id. (distinguishing Children s Hospital on the gro und that it stated only in passing, without authority, that the issu e before [ the Califor nia intermed iate appellate court] did not relate to a susp ect class such as race or sexu al orientation. ). 54 join those courts and hold that sexual orientation has not come of age as a suspect or quasisuspect classification.47 1. While there is a his tory of purposeful unequal treatment of gay and lesbian persons, and homosexual persons are subject to un ique disabilities not truly indicative of their abilities to contribute to society, we sh all not hold that gay and lesbian persons are so politically powerless that they constitute a suspect class. Homosexual persons h ave been the object of societal prejudice by private actors as well as by the judicia l and legisla tive b ranc hes o f fed eral a nd st ate g overnments. Gay, lesbian, and bisexual persons likewise have been subject to unique disabilities not truly indicative of their abilities to contribute meaningfully to society. For a significant period of American history, homosexual persons generally were not the object of regulatory focus because sexual and gender orientations differing from traditional sexual pre ferences were 47 We note that some cases upon which Appellants and other jurisdictions decisions have relied, were based, in part, on Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). See e.g., High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 571 (1990) (stating that, because sexual intimacy between same-sex partners can be criminalized, sexual orientation can not be a suspect or quasi-suspect classification). We do not associate ourselves with the reasoning employed in those portions of the opinions, and they carry no precedential value to the extent of their reliance on Bowers. Other portions of those cases upon which we rely, however, contain reasoning independent of Bowers and are persua sive in o ur analysi s of the equal p rotectio n issue b efore u s. That Bowers was overturn ed by Lawrence, furthermore, does not compel recognition of sexual orientation as a suspec t classification, as Appellees sugg est. As our judicial peers in other jurisdictions have noted, the Court in Lawrence evaluated the Texas sodomy law on the basis that it did not c omport ev en with ratio nal basis rev iew, but did not evalu ate the statute in such a way that declared gay, lesbian, and bisexual persons as suspect classific ations. See In re Kandu, 315 B.R. at 143-44; Andersen, 138 P.3d at 975-76. 55 not well co nceptu alized b y the pub lic until af ter the C ivil Wa r. W ILLIAM N. E SKRIDGE, J R., G AYLAW: C HALLENGING THE A PARTHE ID OF THE C LOSET 1 (1999) (re counting in great detail the genesis of the treatment of gay, lesbian, bisexual, and transgender persons in American society); Lawrence, 539 U.S. at 568-69, 123 S. Ct. at 2478-79, 156 L. Ed. 2d 508 (describing succinctly the early history of laws directed at homosexual conduct, and explaining that the concept of the homosexual as a distinct category of p erson did n ot emerge until the late 19th century ) (citations omitted). Before 1900, regulation of gay, lesbian, bisexual, and transgender persons focused on the criminalization of gender inversion, which included, but was not limited to, cross-dressing, prostitution, obscenity, public lewdness, and indecent exposure. E SKRIDGE, supra, at 13-14, 27-37. Many citizens viewed people who crossdressed or otherwise deviated from the traditional gender roles as heretics, degenerates, or psychop aths. Id. at 17-1 8. By the turn of the twentieth century, most medical professionals accepted the deg ener acy theory of homosex uality. Patric ia A. C ain, Litigating for Lesbian and Gay Rights: A Legal History, 79 V A. L. R EV. 1551, 1555 (19 93). This the ory was bas ed primarily on the notion th at homos exuality was an in heritable gen etic trait, and that the disease c ould be treated through aversion therapy, castration, and other radical cures, rather than decriminalization. Id. at 1555, 1555 n.21 (citing JOHN D E MILIO , S EXUAL P OLITICS, S EXUAL C OMMUNITIES 15 (1983 ); D AVID F. G REENBERG, T HE C ONSTRUCTION OF H OMOSEXUALITY 397-433 (1988); JONATHON K ATZ, G AY A MERICAN H ISTORY 129-207 (rev. 56 ed 1992)); see E SKRIDGE, J R., supra, at 50 (quoting U.S. Army Surg eon Ge neral, Disposition of Overt Cases of Homo sexuality, Arm y Bulletin No . 66, April 19 43, pt. E, at 83 (1943) (explaining that r athe r than court-m artia l those w ho engage in sing le-se x sod omy, homosexual persons should be reclaimed through medical treatment)). Those who spoke out publicly in favor of gay and lesbian rights during the Red S care of th e late 1910 s to early 1920s were branded as communists, denaturalized, and deported to the Soviet Union. Cain, supra, at 1555-56. In the 1950s, the Senate Investigations Subcommittee of the Committee on Exp enditures in the Executive Department found that homosexuals and other sex perverts were unsuitable for employment by the federal government primarily because [t]hose who en gage[d] in overt acts of perversion lack[ed] the emotional stability of normal persons. In addition there [was, according to the Subcommittee,] an abundance of evidence to sustain the conclusion that indulgence in acts of sex[ual] perversion weaken[ed] the moral fiber of an individual to a degree that he [was] not suitable for a position of respon sibility. Cain, supra, at 1565-66 (citing S UBCOMM. FOR THE C OMM N OF E XPENDITURE IN THE E XEC. D EP T, INTERIM R EPORT ON THE E MPLOYMENT OF H OMOSEX UALS AND O THER S EX P ERVERTS IN G OVERNMENT, S. Doc. No. 241, 81st Cong., 2d Sess. 4 (1950) (hereinafter INTERIM R EPORT ON THE E MPLOYMENT OF H OMOSEX UALS ). Homosexuals were furthermore deemed security risks be cause o f their su sceptib ility to black mail. C ain, supra, at 1566 (citing INTERIM R EPORT ON THE E MPLOYMENT OF H OMOSEX UALS , at 3). 57 The 1946 elections saw the beginning of a national homosexual Kulturkampf, a period spanning from 1946 to 1961, in which it is believed that as many as a million gay and lesbian persons were prosecuted criminally under statutes aimed at prohibiting consensual same-sex adult intercourse (both public and private), kissing, holding hands, or other forms of public lewdness. E SKRIDGE, J R., supra, at 60-67. So me states, nam ely New J erse y, Florida, California, and New York, prohibited establishments with state-issued liquor licenses from knowingly serving alcohol to homosexual person s. E SKRIDGE, J R., supra, at 78-80. In the wake of Bowers v. Hardwick, 478 U.S . 186, 106 S . Ct. 2841, 92 L. Ed. 2d 140 (1986), and until the Supreme Court s decision in Lawrence v. Texas, it was not unconstitutional under the Fourteen th Amendm ent for a state to enact legislation making it a crime for two consenting adults of the same sex to engage in sexual conduct in the privacy of their ho me. See Lawrence, 539 U.S. at 575, 123 S. Ct. at 2482, 156 L. Ed. 2d 508 ( When homosexual conduct is made criminal by the law of the State, that dec laration in and of itself is an invitation to subject hom osexual p ersons to dis crimination both in the public and in the private spheres. ). As state d by the S urgeon Gene ral, [O]ur culture often stigmatizes h omosex ual behav ior, identity and relation ships. T hese anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health, including a greater incidence of depression and suicide, lower selfacceptance and a greater likelihood of hiding sexual orientation . . . . In their extreme form, these negative attitudes lead to [ant i-gay] violence. Averaged over two dozen studies, 80 58 percent of gay men and lesbians had experienced verbal or physical harassment on the basis of their orientation, 45 percent had been threatened with violence, and 17 percent had experienced a physical attack. U.S. Dep t of Health & H uman Servs., The Surg eon Ge neral s Ca ll to Action to P romote Sexual Health and Responsible Sexual Behavior (9 July 2001) (letter from the Surgeon Gene ral), at http://www .surgeong eneral.gov /library/sexualhe alth/call.html. It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society. The State, furthermore, has not provided evidence to the contrary in the present case, arguing instead that, because every other jurisdiction, both before and a fter Lawrence, rejected the notion that homose xuals are a suspect class, so should Maryland. While other jurisdictions dispositions of equal protection claims similar to the one advanced in the present case are persuasive and reinforce our own analysis, we do not accept them simply as conclusive. This Co urt nevertheless finds that, in light of the other indicia used by this Court and the Sup reme Court in addres sing eq ual pro tection c laims, a history of unequal treatment do es not require that we deem suspect a classification based on sexual orientation.48 48 We instead view th e Appellees cite to severa l annual rep orts compiled by the Maryland Commission on Human Relations documenting yearly total reported instances of hate crimes and discrimination in the areas of employment, public accommodations, and housing. Of the total 511 hate-related incidents reported to the Commission for the 2006 fiscal year, 350 were race-based, while 37 were based on sexual orientation. M D. C OMM N ON H UMAN R ELATIONS, 2006 Annual Report 18 (2006), at http://www .mchr.state.md.us/annrep2006.pdf. We find equally important, h oweve r, other statistics rep orted by the C ommissio n in recent (contin ued...) 59 circumstances as a who le in order to d etermine w hether sexu al orientation c onstitutes a protected classification meriting a more exacting level of constitutional review. In spite of the unequal treatment suffered possibly by App ellee s and certa inly a substantial portion of other citizens similarly situated, we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to extraordinary protection from the majoritarian political process. To the contrary, it appears that, at least in Maryland, a dvocacy to e liminate discrimination against gay, lesbian, and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of gover nment. 49 Maryland statutes protect against discrimination based 48 (...continued) Annual Reports. In the 2005 Annual Report, the Commission included a table displaying the total reported instances of discrimination in housing, emp loyment, and p ublic accommodations according to various characteristics, including race, sex, sexual orientation, age, retaliatio n, disab ility, religion , familia l status, and national o rigin. M D. C OMM N ON H U M A N R E L A T I O N S, 2 0 0 5 A n n u a l R e p o r t 1 3 - 1 5 ( 2 0 0 5 ) , a t http://www.mchr.state.md.us/2005%20f inal%20 annual% 20report.pdf. The report states that there were 25 alleged instances of discrimination based on sexual orientation, compare d to 117 cases based on ag e and 99 cases ba sed on disability. Neither of these classifications are considered suspect yet, either u nder Sup reme Co urt or this Co urt s preced ent. 49 For an in-depth discussion of the legislative and regulatory developments in Maryland addressing discriminatio n based o n sexual o rientation, see g ener ally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a "Sexual Orientation-Blind System in Maryland and the Recognition of Same-Sex Marriage, 35 U. B ALT . L. R EV. 73, 75-92 (2005). While the goal of the article apparently was to highlight the legal landscape in Maryland regarding sexual orientation, and its probable amenab ility to the recognition of same-sex marriage, the trends presented there illustrate the evolving political influ ence th at gay, lesb ian, and bisexu al indivi duals a re exerc ising. See also A MER. A SSOC. OF L AW L IBRARIES, S OCIAL R ESPONSIBILITIES S PECIAL INTEREST S ECTION, S TANDING C OMMITTEE ON L ESBIAN AND G AY ISSUES, Introduction of S EXUAL (contin ued...) 60 on sexual orientation in several areas of the law , including public accommodation,50 employme nt, 51 housing,52 and education.53 In addition to the sta tutory fram ework in place , several state and local regulations prohibit discrimination on the basis of sexual orientation.54 See, e.g., M D. C ODE (2004), 49 (...continued) O RIENTATION AND THE L AW: A R ESEARCH B IBLIOGRAPHY S ELECTIVE LY A NNOTATING L EGAL L ITERATURE T HROUGH 2005, at XXV( In the last twelve years, th e expone ntial increase in judicial opinions and legislation regarding [Lesbian, Gay, Bisexual, and Transsexual] issues has been accom panied by a growth in f avorable decisions and legislative enactments. ). 50 M D. C ODE (Supp. 2004), art. 49B , §§ 5(b), 8(a). 51 M D. C ODE (2003), art. 49 B §§ 16 ; Id. at § 14 ( It is hereby declared to be the policy of the State of Maryland, in the exercise of its police power for the protection o f the public safe ty, public health and general welfare, for the maintenance of business and good government and for the prom otion of the State s trade, c ommerc e and ma nufacture rs to assure all persons equal opp ortunity in receivin g employm ent and in a ll labor man agemen tunion relations rega rdless of . . . sexu al orientation. ); M D . R EGS. C ODE tit. 1, § 01.01.1995.19(I)(A)(11) (2004) (prohibiting expressly in Maryland discrimination in state employme nt on the ba sis of sexua l orientation); see also 35 U. B ALT . L. R EV. 73, supra, at 87 (citing Acanfora v. Bd. of Educ., 359 F. Supp. 843, 853 (D. Md. 1973) (holding that the sexual orientation of a teacher is not a pr oper gr ounds to deny e mploym ent), aff d on other grounds, 491 F.2d 498 (4th C ir. 1974)). 52 M D. C ODE (2003), art. 49 B, §§ 22- 24; Id. at §19 ( It is the policy of the State of Maryland to provide for fair housing throughout the State of Maryland, to all its citizens, regard less of . . . s exual o rientatio n. ). 53 M D. R EGS. C ODE tit. 13A, §01.04.03 ( All students in Maryland s public schools, without exception and regardless of . . . sexual orientation . . . have the right to educational environm ents that are: A. Safe; B. Appropriate for academic achievement; and C. Free from any form of harassm ent. ). 54 The statutes and regulations that follow in the main text are extracted from the briefs supplied by the parties and amici, and constitute only a portion of the anti-discrimination (contin ued...) 61 Health Occ. § 19-311(6) (prohibiting sexual orientation discrim ination by social workers); M D. C ODE (2003), art. 29 §§ 1-107 , 3-102(h)(1 ) (prohibiting sexual orien tation discrimination on the part of the Washington Suburban Sanitary Commission, and prohibiting the use of discriminatory employment practices by any contractor engaged by the Commission); M D. R EGS. C ODE tit. 1 §§ 04.07.04(A)(7)(d)(viii), 04.07.05(A)(2)(p) (2004) (prohibiting discrimination on the basis of sexual orientation in the administration of the Residential Child Care Prog ram); M D. R EGS. C ODE tit. 1 §§ 05.03.09(A)(2), 05.03.15(C)(2) (prohibiting the consideration of either the adoptive parent s or adoptive child s sexual orientation during the app lication or plac ement stag e of a priva te adoption ); M D. R EGS. C ODE tit. 5 § 04.11.18(A) (2005) (prohibiting discrimination on the basis of sexual orientation by entities involv ed with, or contractors engaged by, the Special Housing Opportunities Program ); M D. R EGS. C ODE tit. 10 § 18.06.03 (A)(6) (20 04) (provid ing that it is improper for health care providers rendering services under the AIDS Drug Assistance Program to consider sexual orientation when determining whether to provide such services); M D. R EGS. C ODE tit. 10 § 42.03.03(B)(5) (2005) (prohibiting discrimination on the basis of 54 (...continued) measures found within the State of M aryland s statutes and regu lations. For a f ull description of the vario us state and local enactm ents that proh ibit discrimina tion on the b asis of sexual orientation, see 35 U. B ALT . L. R EV. 73, supra, at 86-90, 86 n.111 (cataloging extensively Maryland r egulations th at eliminated sexual orien tation discrim ination in the administration of numerous public assistance programs and community development initiatives, and that prohibit such discrimination in the regulation of various business occupations and p rofessions througho ut the State). 62 sexual orientation b y licensed socia l workers); M D. R EGS. C ODE tit. 10 § 10.43.03(D)(5) (2005) (same, in the context of chiropractors and chiropractic assistants licensed to practice in Maryland) ; M D. R EGS. C ODE tit. 14 § 29.04.09(C)(1) (2004) (forbidding discrimination in the administration of the M aryland Heritage Areas L oan Program). Evolutionary legal developments highlighting changing views toward gay, lesbian, bisexual, and transgender pe rsons are not limited to statutory and regulatory enactmen ts. In terms of Supreme Court jurisprudence, one of the most important cases is Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 , 134 L. Ed . 2d 855 (1 996). This case dealt with a Colorado voter-adopted amendment to the State s Constitution that preclude[d] all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their homosexual, lesbia n or bisexu al orientation, c onduct, practices or relationship. Romer, 517 U.S . at 620, 116 S. Ct. at 1621-22, 134 L. Ed. 2d 855. In other words, the amendment sought to preclude the Colorado legislature from enacting any statute that provided for protection from discrimination on the basis of sexual orientation. The Co urt struck do wn the sta tute as unco nstitutional, un der rational b asis review, as a violation of the Fourtee nth Amendment. In Lawrence, 539 U.S. at 565, 560, 123 S. Ct. at 24 76, 247 5, 156 L. Ed. 2d 508, the Court overturned Bowers v. Hardwick and concluded that the Fourteenth Amendment to the U.S. Constitution forbids the criminalization of sexual conduct by two persons of the same sex in the privacy of their own homes. In neither Romer nor Lawrence, however, did the Supreme Court state that 63 homosexual persons constituted a suspect class. The Court instead app lied rational ba sis review to both of the s tatutes a t issue. The body of Maryland appellate opinions addressed to the rights and inter ests o f gay, lesbian, bisexual, and transgender person s is subs tantial. Boswe ll v. Boswe ll, 352 Md. 204, 237-238, 721 A.2d 662, 678 (1998) (holding that, in the context of visitation rights of a noncustodial parent, [this Court] make[s] no distinctions as to the sexual preference of the noncustodial parent w hose visitation is being cha llenged. The only relevance that a parent s sexual conduct or lifestyle has in the context of a visitation proceeding of this type is wh ere that conduct or lifestyle is clearly shown to be detrimental to the children s emotional and/or physical well-being ); State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004) (extending battered spouse synd rom to abu sive situations within sam e-sex cou ples); North v. North, 102 Md. App. 1, 12, 648 A.2d 1025, 1031 (1994) (deciding that the sexual orientation of a noncustodial parent is no t a proper basis for the denial of visitation rig hts, and plac ing emph asis on whether such visitation rights were in the best interests of the child and wh ether there was a showing of actual harm to the child by granting visitation, rather than focusing on the perceived harms to the child of expos ing it to a hom osexual life style); Gestl v. Frederick, 133 Md. App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000) (determining tha t the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by the biological mother s former same-sex partner under the U niform Child C ustody Jurisdiction Act); Lapides v. Trabbic , 134 Md. App. 51, 54, 758 A.2d 1114, 1115 (2000) (rejecting a father s 64 tort cause of action aga inst his ex-wife s same-sex domestic partner on the basis that she interfered with and c aused ha rm to his relatio nship with his daughter to which he had joint custody); S.F. v. M.D., 132 Md. App. 99, 102, 110, 751 A.2d 9, 10, 14-15 (2000) (holding that the former domestic partner of a biological mother has standing to seek visitation of a child conceived by in vitro fertilization performed during the tenure of their partnership). 55 While gay, lesbian, and bisexual persons in recent history have been the target of unequal treatment in the private and public aspects of their lives, and have been subject to stereotyping in ways not in dicative of th eir abilities, among other things, to work and raise a child, recent legislative and judicial trends toward reversing various forms of discrimination based on sexual orientation underscore an increasing political coming of age. The relevant decisio ns from other ju risdiction s recog nize this . Andersen, 138 P.3d at 974-75 ( The enactment of provisions providing increased protection to gay and lesbia n individua ls in [the State] shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing p olitical pow er. Indeed, th e recent pa ssage of th e amend ment [in Washington prohibiting discrimination on the basis of sexual orientation] is particularly significant . . . . We conclude that plaintiffs have not established that they satisfy the [political powerlessness] prong of the suspect classification test. ); see also High Tech Gays, 895 F.2d at 573-74 (concluding, independent of reliance on Bowers, that, [w]hile we do 55 For a compre hensive list of Suprem e Court, other Federal and State appellate court cases adjudicating gay and lesbian rights from 1981 to 2000, see D ANIEL R. P INELLO , G AY R IGHTS AND A MERICAN L AW 167-213 (200 3). 65 agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria [for being a suspect or quasi-s uspect classific ation], and determining that legislatures have addressed and continue to address the discrimination suffered by homose xuals on account of their sexual orientation though the passage of anti-discrimination legislation. Thus, homosex uals are not without po litical power . . . ).56 2. Evidenc e that hom osexuality is an im mutable c haracteristic. The term imm utab ility defines a human characteristic that is determined solely by the accident of birth, Frontiero, 411 U.S. at 686, 93 S. Ct. at 1770, 36 L. Ed. 2d 583 (explaining that sex, like race and national origin, is an immutable characteristic [that is] determ ined so lely by the ac cident o f birth, and that defines a particular group), or that the possessor is powe rless to escape or set aside. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S. Ct. 2733, 2784, 57 L. Ed. 2d 750 (1978) (quoting Weber v. Aetna Ca s. & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. E d. 2d 768 (1972 )). See also Plyler v. Doe, 457 U.S. 202, 216-17 n.14, 102 S. Ct. 2382, 2394-95 n.14, 72 L. Ed. 2d 786 (1982) ( Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatm ent that the F ourteenth Amendment was desig ned to abolish. ). Based on the scientific and sociological evidence currently available to th e public, w e are unab le to take judicial notice that gay, lesbian, and 56 The irony is not lost on us that the increasing political and o ther successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statute under review. 66 bisexual persons display readily-recognizable, immutable characteristics that define the group such that they may be deemed a suspect class for purposes of determinin g the appro priate level of scrutiny to be accorded the statute in the present case. Appellees rely on Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 109 3 (9th Cir. 2000), overruled on other grounds by, Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005), for the proposition that sexual o rientation is a su spect classific ation because it is d efin ed by a characteristic that people should n ot be require d to chang e because [it is] fundam ental to . . . individual identities or consciences. The Ninth Circuit indeed held there that [s]exual orientation and sexual identity are immutable; [and that] they are so fun damental to one s identity that a person should no t be required to abandon them. Hernandez-Montiel, 225 F.3d at 1093 (indexing numerous studies that have concluded that sexual orientation is determined at an early age and engrained in an individ ual s person ality). Despite the Ninth Circuit s conclusion in that case that sexual orientation is an immutable characteristic, that court since has declared that homosexual persons do not constitute a suspect classification. See Andersen, 138 P.3d at 974 (citing Flores v. M organ H ill Unified Sch . Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (holding, pre-Lawrence, homos exuals are not a suspect or quasisuspect class, but are a definable group en titled to rational basis scrutiny for equal protection purposes ) (quoting High Tech Gays, 895 F .2d at 57 3-74)). Beyond their reliance on Hernandez-Montiel and two Maryland cases that discuss, in the abstrac t, inheren tly suspec t classific ations a nd imm utability, see Ehrlich v. Perez ex rel. 67 Perez, 394 Md. 691, 718-19, 908 A.2d 1220, 1236-37 (2006) (discussing alienage as an inherently suspect clas sification); In re Helig, 372 Md. 692, 697-710, 816 A.2d 68, 71-79 (2003) (discussing the concept of gender in the context of transsex uals and h ow, as m edically possible, the outward and physical manifestations of gender may be changed), Appellees point neither to scientific nor sociological studies, which have withstood analysis for evidentiary admissibility, in sup port of an a rgumen t that sexual o rientation is an immutab le characteristic.57 57 No party addresses in its brief the immutability of sexual orientation and the implications of an answer to that query in determining the correct level of constitutional review to be applied to Family Law § 2-201. The issue of the immutability of sexual orientation, however, is the subject of a multitude of recent studies and nationwide debate. See J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 A RCHIVES G EN L P SYCHIATRY 1089, 1093 (1991) (studying the similarities in sexual orientation between twin, non-twin, and adopted siblings, and concluding that identical twins are more likely than other types of s iblings to have a similar homosexual orientation); Dean H. Hamer, Stella H u, Victo ria L. M agnus on, Na n Hu & Ange la M.L . Pattatuc ci, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 S CIENCE 321 (1993) (finding evidence that there is a connection between male sexual orientation and a particular gene found on the X chromosome and sugg esting that male sexual orientation may be linked to maternal relatives ); Simo n LeV ay, A Differen ce in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 S CIENCE 1034-37 (1991) (finding that the interstitial nuclei of the anterior hypothalamus (INAH) 3, one of four cell groups found within the anterior hypothalamus region of the brain, is twice as large in heterosexual men as compare d to homosexual men, and concluding that, at least in men, a heterosex ual brain is structurally dimorphic from a homosexual brain). These reports, considered three of the most important in the field, how ever, are no t without ch allenge. Their imperfections and limitations are we ll-docu mente d. See gene rally Janet E. Hal ley, Sexual Orientation and the Politics of Biology: A Cr itique of the A rgumen t from Imm utability, 46 STAN L. R EV. 503, 529-46 (1994) (rev iewing the limitations and flaws w ithin the leadin g studies on the link between biolog y and sex ual orien tation); In grid W ickelgre n, Discovery of the "Gay Gene Questioned, 284 S CIENCE 571 (1999); Eliot M arshall, NIH s Gay Gene Study Questioned, (contin ued...) 68 57 (...continued) 268 S CIENCE 1841 (19 95). Other studies hav e found c ontrary indicia and have concluded that culture and enviro nment, at lea st in part, play a factor in the developm ent of an individual s sexual orientat ion. See, e.g., Dean H. Ham er, et al., Genetics and Male Sexual Orientation, 285 S CIENCE 803a (1999) ( Sexual orientation is a complex trait that is probably shaped by many different factors, including multiple genes, biological, environmental, and sociocultural influences. ); J. Michael Bailey, Michael P. Dunne, Nicholas G. M artin, Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Tw in Sample , 78(3) J. OF P ERSONALITY & S OC. P SYCHOL. 524 (2 000). Even the authors, most notably Simon LeVay, have indicated that the biological studies do not establish that biology is the prim ary indica tor of se xual or ientation . LeVa y, supra, at 1036 ( The discovery that a nucleus differs in size between heterosexual and homosexual men illustrates that sexual orientation in humans is amenable to study at the biologic al level, and this discovery opens the door to studies of neurotransmitters or receptors that might be involve d in regulating th is aspect of personality. Further interpretation of the results of this study must be considered speculative. In particular, the results do not allow one to decide if the size of INAH 3 in an individual is the cause or the consequence of that individual s sexual orientation, or if the size of INAH 3 and sexual orientation co-vary under the influence of some third, unidentified variable. ). We by no means are able to form any sort of merits-driven conclusion based on the forgoing studies. We note only that there does not appear to be a consensus yet among experts as to the origin of an individual s sexual orientation. Based on our research, no studies curre ntly available to the public have been subjected to rigorous analysis under the Frye-Reed standard in order to determine the scientific reliability of the methodology, principles, and resultant conclusions of the foregoing studies for the pur poses o f evide ntiary adm issibility. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (requiring that expert testimony is admissible only when it is determined by the trial judge that the deduction is generally acce pted in the p articular field in which it belongs); Reed v. State, 283 M d. 374, 3 89, 391 A.2d 3 64, 373 (1978) (adopting in the State of Maryland the general acceptance rule annunciated in Frye); Hutton v. S tate, 339 Md. 480, 494 n.10, 663 A.2d 1289, 1295 n.10 (199 5); see Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 327 , 923 A.2d 939, 946 (2007); see also Committee Note to Md. Rule 5-702 ( [R]equired scientific foundation for the admission of novel scientific techniques or principles is left to deve lopment th rough ca se law. ). N or were w e able to locate any analyses of the studies under the Daubert/Kumho Tire/Joiner standard f or admissib ility applied in the federal courts and certain of our sister state court syste ms. Daube rt v. Merre ll Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1 993), superceded by (contin ued...) 69 In the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic, and in light of the other indicia u sed by this Court and the Supreme Court in defining a suspect class, we decline on the record in the present case to recognize sexual orientation as an immutable trait and therefore a suspect or quasi-suspect classific ation. See Andersen, 138 P.3d at 974; In re Marriage Cases, 49 Cal. Rptr. 3d 675 , 714 (1 st Dist. 2 006), re view g ranted, 1 49 P. 3 d 737 ( 2006) . The ma jority of other jurisdictions that have addressed comparable equal protection challenges reviewed similar statutes under rational basis analysis. See In re Kandu, 315 B. R. at 143-44 ; Wilson, 354 F. Supp. 2 d at 1307; Lofton, 358 F .3d at 81 8, cert. denied, 543 U.S. 1081, 125 S. Ct. 869, 160 L. E d. 2d 825 (2005); Andersen, 138 P.3d at 973-76 ; Singer, 522 P.2d at 1196. IV. The Right to Same-Sex Marriage is Not so Deeply Rooted in the History and Tradition of this State or the Nation as a Whole Such That it Should be Deem ed Fun damen tal. Appellees contend n ext that Fam ily Law § 2-2 01 is subjec t to strict scrutiny because it burdens significantly their fundamental right to marry guaranteed by the due process protections of Article 24. First defined federally by the Supreme Court in 1937, fundamental 57 (...continued) F ED. R. E VID . 702; Kumho Tire Co. v. Carmichael, 526 U.S . 137, 147-4 9, 119 S. C t. 1167,1174-75, 143 L. Ed. 2d 238 (1999) (holding that the basic gate-keeping obligations imposed by the U.S. Supreme Court, in Daubert, upon a fe deral trial judge applies not o nly to scientific te stimony, but all ex pert testimon y); General Elec. Co. v. Joiner, 522 U.S . 136, 143, 118 S. Ct. 512, 517-18, 139 L. Ed. 2d 508 (1997) (holding that a trial judge s ruling regarding admissibility of scientific evidence is reviewable only for an abuse of discretion). 70 rights are those privileges and immunities that are so rooted in the traditions and conscience of our people that they are considered implicit in the concept of ordered liberty. Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S. Ct. 149, 152, 82 L. Ed. 2d 288 (1937) (quoting Snyder v. Massa chusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L . Ed. 674 (1934)); Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772 (1997) (defining fundamental rights as those privileges that are objectively, deeply rooted in this Nation s history and trad ition, . . . and implicit in the c oncep t of ord ered libe rty, such that neither liberty nor justice would exist if they were sacrificed. ) (quoting Palko, 302 U.S. at 325-26, 58 S. Ct. at 152, 82 L. Ed. 2d 28 8); Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938, 52 L. Ed . 2d 531 (1 977) (def ining fund amental righ ts as those liberty interests that are deeply rooted in this Nation s history and tradition ) (plurality o pinion ). We employ a very similar definition for determining what constitutes a fundamental right for state constitutional analysis. Sites v. State, 300 Md. 702, 716, 481 A.2d 192, 199 (1984) (defining f undame ntal rights as tho se that are so rooted in th e traditions and conscience of our pe ople as to be ranked as fundamental or implicit in the concept of ordered liberty ); Waldron, 289 Md. at 715, 426 A.2d at 947 (characterizing the rights protected by Article 24 as tho se recogn ized as vital to the history and tradition s of the peo ple of this State ); Samue ls v. Tschech telin, 135 Md. App. 483, 537, 763 A.2d 209, 238 (2000) (quoting Glucksberg, 521 U.S. at 720-21, 117 S. Ct. at 2268, 138 L. Ed. 2d 772). In determining 71 whether an asse rted libe rty interest c onstitute s a fun dame ntal righ t, we look not to our personal and private notions of what is fundamental, but rather to the traditions and [collective] conscience of our people. Griswold v. Connecticut, 381 U.S. 479, 493, 85 S. Ct. 1678, 1 686, 14 L. Ed. 2 d 510 ( 1965) (Gold berg, J., concurring). Our task in the present case, therefore, is to determine objectively whether the right to marry another person of the same sex is so deep ly rooted in the history and tradition of this State, as well as the Nation as a whole, th at neither liberty nor justice would exist if it were sacrificed. Glucksberg, 521 U .S. at 721 , 117 S . Ct. at 22 68, 138 L. Ed. 2 d 772. A. The Right at Stake must be Clearly and Precisely Identified. It is undisputed that the right to marry, in its most general sense, is a fundamental liberty interest that goes to the core of what the U.S. Sup reme Co urt has called the right to personal autonomy. See, e.g., Planned Parenthood of S. E. Pa. v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 2807, 120 L. Ed. 2d 674 (1992) ( A t the heart of liberty is the righ t to define one s own concept of existence, of meaning, of the universe, and of the mystery of human life. ). This right to personal privacy was recognized formally by the U.S. Supreme Court in Griswo ld where it struck down, as an intrusion upon the constitutionally protected right to marita l priv acy, a ban on the use of contraceptives by married heterosexual couples. The Court reasoned tha t there are zones of privacy created by the guarantees of the Bill of Rights that serve a s [a] protectio n against all g overnm ent invasion s of the san ctity of a man s home and the privacies of life. Griswo ld, 381 U.S. at 484, 85 S. Ct. at 1681, 14 L. 72 Ed. 2d 510 (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746 (1886)). Other rights considered fundamental under this general right to personal autonomy are those decisions relating to child-bearing, 58 child-rearing and education,59 intimate association and se xual intim acy, 60 the right to use contraceptives,61 the right to refuse unwanted lifesaving m edical treatm ent, 62 and, as stated before, the right to marriage.63 The 58 Carey v. Population Services In t l, 431 U.S. 678, 685, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675 (1977) ( The decision whether or not to beget or bear a child is at the very of th is cluster of constitutionally protected choices. ); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (invalidating a Texas law that prohibite d abortions on the bas is that a woman h as a Due Proc ess right to make fund amental decisions affe cting her body). 59 Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S. Ct. 625, 67 L. E d. (1923). 60 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (invalidating a Texas statute that criminalized private sexual intimacy by consenting samesex couples). 61 Eisenstadt v. Baird, 405 U.S. 438, 454, 92 S. Ct. 1029, 1038, 31 L. Ed. 2d 349 (1972) (extending the reasoning employed in Griswo ld to invalidate a law under the Fourteen th Amendment that prohibited the distribution of contraceptive devices to unmarried persons). 62 Cruzan v. Mo. D ep t of Hea lth, 497 U.S. 261, 278-79, 110 S. Ct. 2841, 2851-52, 111 L. Ed. 2d 224 (1990) (holding that every person possesses a constitutionally protected right to withdraw from unwanted life-savin g medical treatment). 63 It is beyond doubt that the right to marry is a fundamental liberty interest protected by the Co nstitution . See e.g., Turner v. Safley, 482 U.S . 78, 95, 96-9 7, 107 S. C t. 2254, 2265, 2265-66, 96 L. Ed . 2d 64 (19 87) (holdin g uncon stitutional a M issouri regula tion that prohibited inmates from marrying, absent approval by the prison superintendent a fter a finding that there were compelling reasons for the marriage, even though the right to marry, as with m any othe r constitu tional rig hts, is restricted substantially as a result of incarceration); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 680, 54 L. Ed. 2d 618 (contin ued...) 73 rights to personal auto nomy emb race just a fe w of the r ights that the S upreme C ourt has deemed funda menta l. See, e.g., Shapiro v. Thompson, 394 U .S. 618 , 634, 89 S. Ct. 1322, 1331, 22 L. Ed . 2d 600 (1 969) (the rig ht to move from state to state); Kramer v. Union Free School Dist., 395 U.S. 621, 627, 89 S. Ct. 1886, 1889-90, 23 L. Ed. 2d 583 (1969) (the right to vote); Griffin v. Illinois, 351 U .S. 12, 7 6 S. Ct. 5 85, 100 L. Ed. 891 (1956 ) (the right to equal access to appe al). Determination of whether there is a fundamental right to enter into a same-sex marriage, however, does not end with a brief invocation of the cases outlining the importance of marriage generally and the other liberty interests that make up the funda mental righ ts panorama of personal autonomy. Before determining the fundamental nature of an asserted liberty interest, the right at stake should be def ined pr ecisely. Samue ls, 135 Md. App. at 537, 763 A.2d at 23 8 ( [A]n alysis of an alleg ed substan tive due pro cess violation must begin with careful description of the asserted right, for [t]he doctrine of judicial self-restraint requires us to exercise the utm ost care whenever we are asked to break new ground in this 63 (...continued) (1978) ( [T]he right to marry, establish a home and bring up children is a central part of the liberty protecte d by the Due Process Clause . . . . ) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (2003)); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113 (1971) ( [M]arriage involves in terests of basic importance in our society. ); Loving v. V irginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010 (1967 ); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S. Ct. 1110, 1113-14, 86 L. Ed. 1655 (1942) (describing marriage as fundamental to the very existence of the [human ] race. ); see also Skinner, 316 U.S. at 541, 62 S. Ct. at 1113-14, 86 L. Ed. 1655 ( The freedom to marry has long been recognized as one of the vital personal rights es sential to the ord erly pursu it of hap piness b y free me n. ). 74 field. ) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1 (1993) (in turn quoting Collins v. Harker Heights, 503, U.S. 115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992)); Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268, 138 L. Ed. 2d 772 ( [W]e have required in substantive-due-process cases a careful description of the asserted fundam ental liberty interest. ) (internal citations om itted)); see also Glucksberg, 521 U.S. at 722-26, 728, 117 S. Ct. at 2269, 138 L. Ed. 2d 772 (stating that the asserte d liberty interest at issue in the case was framed m ore prope rly as the right to c ommit su icide with another s assistance rather than the broadly-stated liberty to choose how to die or the right to choose a humane, dignified death, and determining that there existed no fundamental right to assisted suicide eve n though the right to ref use lifesavin g medic al treatment was deeply rooted in our Nation s history) (distinguishing Cruzan v. Dir., Mo. Dep t of Health , 497 U.S. 261, 278-80, 110 S. C t. 2841, 2851-52, 111 L. Ed. 2d 224 (1 990)); Lewis v. Harris, 908 A.2d 196, 207 (N.J. 2006 ) (same); In re Marriage Cases, 49 Cal. Rptr. 3d at 701 ( holdin g that an asserted right mu st be co ncrete a nd part icularize d, rather than abstract and general ) (citations omitted). Once the asserted liberty interest is identified clearly, we determine objectively wheth er it is deeply rooted in the traditions, history, and conscience of the people of Maryland and the Nation as a whole. Appellees argue that we should not be concerned with wh ether the C ourt should recognize a new fundamental right to same-sex marriage, but instead should focus on whether the existing fundamental right to marriage should be extended to include same-sex 75 couples. Specific ally, Appellees seek a declaration that the right to marry encompasses the right to marry a person of one s choosing without interference from th e government, even if the other person is of the sam e sex. The y argue furthe r that, in assess ing history and tradition, the proper inquiry is what has historically been enjoyed (e.g., the right to marry), not who has h istor ically enjo yed it (e.g., people in heterosexual relationships). A substantially similar argum ent has bee n made to our peers in other jurisdictions in the course of confronting same-sex marriage challen ges. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298, 1305 (M.D. Fla. 2005) ( Plaintiffs argue that th eir right to marry someone of the same sex is a fundam ental right that is guaranteed by the Fourteenth Amendment s Due Process Clause. ); Standha rdt v. Super ior Court o f State, 77 P.3d 4 51, 458 (A riz. 2003); Dean v. Dist. of Colum bia, 653 A.2d 307, 333 (D.C. App. 19 95); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973); Baker v. Nelson, 191 N.W .2d 185, 18 6 (Minn . 1971); Andersen, 138 P.3d at 976-79. E ach of the se appellate courts, when presented with the argument, rejected it. For the reasons stated here, we join those courts and hold that the issue is fram ed more p roperly in terms of w hether the rig ht to choos e same-se x marriage is fundam ental. In support of their argument, Appellees rely principally on Loving v. V irginia, 388 U.S. 1, 87 S. Ct. 1 817, 18 L . Ed. 2d 10 10 (1967 ) (holding th at the fund amental righ t to marriage encomp asses the righ t marry the perso n of one s choosing , even if that person is of a different ra ce); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113 (1971); Zablocki v . Redhail, 434 U.S. 374, 98 S . Ct. 673, 54 L. Ed. 2d 6 18 (1978); 76 Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); and, through reference to other ca ses that c ite it, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S. Ct. 1110, 1113-14, 86 L. Ed. 1655 (1942). We find that, while these cases certainly establish generally the fundamental nature of th e right to ma rry, they do not repre sent a compellin g basis to extend the fundamental right to include same-sex marriage. All of the cases infer that the right to marry enjoys its fundamental status due to the male-female na ture of the relationship and/or the attendan t link to fostering procreation of o ur species. We explain. Appellees rely on Loving for the proposition that, despite the long history of prohibition against interracial marriages, the Supreme Court declared in that case that the right to marry was constitutiona lly guaranteed to different-race couples just as it was available to single -race co uples, Loving, 388 U.S. at 12, 87 S. Ct. at 1823, 18 L. Ed. 2d 1010, thereby declaring that the proper inquiry in the case was whether the right itself had been historica lly enjoyed r ather tha n who had his torically en joyed it. W e disag ree. The basis for the Supreme Court s decision as to the interracial couples due process challenge was that [ m]arriage is o ne of the b asic civil rights of ma n, fundamental to our very existence and survival. Id. (emphasis added) (citing Skinner, 316 U.S. at 541, 62 S. Ct. at 1113, 86 L. Ed . 1655 ( Marriage and procreation are fundamental to the very existence and survival of the race. )) (emphasis added). As our peers on other courts have stated, [w]hether the Court [in Skinner] viewed m arriage and procreation as a single ind ivisible 77 right, the least that can be said is that it was obviously contemplating unions between men and wome n when it ruled that the right to marry was fundamental. This is hardly surprising inasmuch as no ne of the United S tates sanc tioned an y other marriage configuration at the time. Baehr, 852 P.2d at 56; Standhardt, 77 P.3d at 458 (stating that [i]mplicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman, and concluding that, while Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the oppo site sex. ); Dean, 653 A.2d at 332-33 (holding that the right to marriage is deemed fundam ental becau se of its link to procreation). Language of similar import appears throughout the Supreme Court s jurisprudence establishing as fundam enta l the r ight to marry. The Co urt comm ented in Mayna rd v. Hill, 125 U.S. 19 0, 211, 8 S. Ct. 723, 729, 31 L. Ed. 654 (1888), that [marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and society, without which there would be neither civilization nor progre ss. In Zablocki, the Suprem e Court rea soned tha t [i]t is not surprising that the decision to marry has b een placed in the same level of imp ortance as d ecisions relating to procreation, childbirth, child rearing, and family relationsh ips. . . . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with 78 respect to the decisio n to enter the relationship th at is the foundation of family in our society. 434 U.S. at 386, 98 S. Ct. at 681, 54 L. Ed. 2d 618 (upholding the fundamental right to marry for tho se in non-compliance with child support obligations). In the course of doing so, the Court explained in detail the genesis of the fundamental status accorded marriage: Long ago, in Mayna rd v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654 (1 888), the Court characterized marriage as the most important relation in life, [125 U.S. at 205, 8 S. Ct. at 726, 31 L. Ed. 654], and as the foundation of th e fam ily and of so ciety, without which the re would be neither civilization nor pro gress, [125 U.S. at 2 11, 8 S . Ct. at 72 9, 31 L . Ed. 654] . In Meyer v. Nebraska, 262 U.S. 390, 43 S . Ct. 625, 67 L. Ed. 104 2 (1923), the Court recognized that the right to marry, establish a home and bring up c hildren is a c entral part of the liberty protected by the Due Process Clause, [262 U.S. at 399, 43 S. Ct. at 626, 67 L. Ed. 1042], and in Skinner v. Oklahoma ex rel. Williamson, supra, ... marriage was describe d as fundam ental to the very existence and survival of the race , [316 U .S. at 541, 62 S. Ct. at 1113, 86 L. Ed . 1655]. Zablocki, 434 U.S. at 384, 98 S . Ct. at 680, 54 L. Ed. 2d 6 18; see also Baehr v. Lewin , 852 P.2d 44, 56 (Haw. 1993). In Boddie , 401 U.S. at 376, 381-82, 91 S. Ct. at 785, 788, 28 L. Ed. 2d 113, the Supre me Court declared that marriage involves interests of basic importance in our society. 401 U.S. at 376 , 91 S. Ct. at 78 5, 28 L. Ed. 2d 113 (citin g genera lly Skinner, Loving, and Meyer). In light of that fundamental nature of marriage, the Court invalidated a statute that authorized the State of Connecticut to d eny a ccess to the courts to indigent citizens seeking to obtain a divorce, so lely because the y were unab le to pay the requ isite court fe es. Boddie , 401 U.S. at 381-82, 91 S. Ct. at 788, 28 L. Ed. 2d 113. Thus, virtua lly 79 every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the con clusion the in stitution s inextric able link to procreatio n, which n ecessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman. Andersen, 138 P.3d at 978 ( Nearly all United States Supreme Court decisions declaring marriage to be a fund amental righ t expressly link m arriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. ). The one exce ption is Turner v. Safely. In that case, the Supreme Court struck down as unconstitutional a M issouri Division of Corrections regulation th at preclude d an inma te from marrying unless he or she received permission from the superintendent, and only upon a finding that ther e was a com pelling r eason for the m arriage . Turner, 482 U.S. at 78, 107 S. Ct. at 2256-57, 96 L. Ed. 2d 64. The term compelling reason was not defined by the regulation, but prison officials testified at trial that the only reason deemed compelling was the pregnancy of the woman to be married or the birth of a child out of wedlock. Turner, 482 U.S. at 82, 107 S. Ct. at 2258, 96 L. Ed. 2d 64. The Court concluded that the fundamental right to marriage recognized in Zablocki applied to prison inmates just as it applied to nonincarcerated individ uals. Turner, 482 U.S. at 95, 107 S. Ct. at 2265, 96 L. Ed. 2d 64. Among several reasons given for application of Zablocki to the issues at bar was that most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the exp ectation that they u ltimately w ill be fully c onsum mated . Turner, 482 U.S. at 96, 107 S. Ct. at 2265, 96 L. Ed. 2d 6 4. The C ourt reason ed addition ally 80 that marriage often serves as a precondition to certain tangible and intangible benefits, includin g the leg itimizatio n of ch ildren b orn ou t of we dlock. Id. It is true that the reasons given in support of the fundamental right of inmates to marry were not linked in express terms to procreation and, indeed, some of the reasons given were wholly independent of procreation. Whatever the reasons given for granting to those couples the right to marry, however, it is clear that the Cou rt was contemplating marriage between a man and woman when it declared unconstitutional the Missouri regulation. The case involved challenges by opposite sex couples, and a number, although not all, of the reasons given in support of the right to marry applie d only to oppo site sex c ouples , i.e., consummation of the marriage and legitimization of children born outside the marital r elations hip. Turner does not persuade us to frame the inquiry in the pr esent ca se as A ppellee s wish. See Andersen, 138 P.3d at 979.64 64 Appellees rely additionally on Griswo ld, 381 U.S. at 486, 85 S. Ct. at 1682, 14 L. Ed. 2d 510, and Eisenstadt, 405 U.S. at 453-54, 92 S. Ct. 1029, 1038, 31 L. Ed. 2d 349 (1972) for the proposition that the S upreme C ourt looks to what w as enjoyed his torically rather than wh o historically enjoyed it. They reason that in Eisenstadt the Court d id not rely on history and traditio n to conclu de that unmarried couples were entitled to the right of sexual privacy and the use of contraceptives. Overlooking the fact that the case did not involve directly the right to marriage and that it was decided on equal protection grounds, Eisenstadt, 405 U.S. at 454, 92 S. Ct. at 1038, 31 L. Ed. 2d 349, we nevertheless dee m it distinguishable. As with the other cases cited supra, the decision was base d on the righ t to produce children. The Court in Eisenstadt reasoned that [i]f the right of privacy means anything, it is the rig ht of the individ ual, ma rried or s ingle, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 405 U.S. at 453-54, 92 S. Ct. at 1038, 31 L. Ed. 2d 349 (citations omitted). The ability to bear or beget children is inherently a ch aracteristic requiring at some lev el the participation of a man and a woman (at least until science demonstrates otherw ise). 81 It is beyond doubt that the right to m arry, in the abstract, is a fundamental right recognized by both the Federal and this State s Constitutions. While we deem fundamental this latitudinously-stated right to marry, it is never theless a pu blic institution tha t historically has been subject to the regulation and police powers of the State.65 Henderson v. Henderson, 199 Md. 449, 458 -59, 87 A .2d 403, 40 9 (1952) ( The State has the sov ereign pow er to regulate marriages, and accordingly can determine who shall assume and who shall occupy 65 We note, however, that this police p ower is not absolute. In regards to social and econo mic reg ulation, t he Leg islature m ay, in the exercise of what is usually called its police power, [] regulate or restrict the freedom of the individual to act, when such regulation or restraint is essential to the protection of the public safety, health, or morals. T hat pow er, howev er, is itself subject to the restraints imposed by constitutions which the whole people have adopted and approved as the supreme law of the land. (Thus), while the legislature may, in the proper exercise of the State s police power, classify the persons to whom a prescribed regulation found to be nec essary to the public welfare may apply . . . , or determine whether certain classes of acts may be regulated . . . , nevertheless the exercise of the power must have som e real and su bstantial relation to the public welfa re . . . , and the legis lature may no t, under th e cloak of the pow er, exercise a power forbidden by the Constitution, or take away rights an d privile ges exp ressly gua ranteed by it. Waldron, 289 Md. at 718-19, 426 A.2d at 948-49 (quoting Dasch v. Jackson, 170 Md. 251, 262-64, 183 A. 5 34, 538-3 9 (1936)). W e note that marriage is subject to the police power of the State no t to employ the sort of circular reasoning urged by the State that Family Law § 2-20 1 is const itutio nal a utom atica lly, but rather to illustrate that the General Assembly and this Court have not always couched the right to marry in its most abstract sense. 82 the matrimonial relation within its borders. ); 66 see also M D. C ODE A NN. (1957, 200 6 Repl. Vol.), Family Law Article, §§ 2-201 to 2-407, 2-409, 2-410 (delineating the requirements for a valid marria ge in the State o f Maryland ) (unless othe rwise note d, all referenc es in this portion of the opinion are to the Family Law Article of the Annotated C ode of M aryland). In that vein, whether a particular person may marry often has depended on who historically has enjoyed the right. Indeed, the fundamental right to marry is not absolute. Under Maryland law, a m inor may not marry if the minor is under the age of 15. Family Law § 2-301(c). If the child is 15 years old, he or she may not marry unless consent is given by a parent or guardian and the clerk issuing the marriage license is supplied with documentation that the fema le to be ma rried is either pre gnant or h as given b irth. Family Law § 2-301(b). If the child is 16 or 17 years of age , he or she may not marry unless there is consent obtained from a parent or guardian or, in the case of woman, documentation is given indicating tha t the wom an to be married is pregnant or has given birth. Family Law § 2-301(a); see also Picarella v . Picarella, 20 Md. App. 499, 510-11, 316 A.2d 826, 833-34 (1974). Limitat ions of this type on marriag e are roo ted in the comm on law . See 24 Op. Att y 66 Unfortu nate dicta appears in Henderson declaring v oid any marria ge within Maryland between Caucasian and African-American persons. 199 Md. 449, 459, 87 A.2d 403, 409 (195 2). This ob jective is obv iously invalid in light of the Suprem e Court s subsequent holdings in Loving. The point of our allusion here to Henderson, however, is as an illustration that the State of Maryland may not be compelled to recognize a marriage performed in another state if that foreign marriage is repugnant to Maryland s public policy (interracial marriage was against the public policy of Maryland at the time Henderson was decided). Id. The discredited portion of Henderson does not affect the continuing and vital princip le that m arriage is subjec t to the po lice pow er of the State. 83 Gen l 482 (1939) (describing the age limits placed on marriag e at comm on law). In dividuals within a certain degree of linea l or colla teral con sangu inity may no t marry. Family Law § 2-202. In order for a marria ge to be va lid within the S tate, the parties to it must be m entally competent such that there [is] an understanding and appreciation of what the ceremony was that was being gone through with, and what were the le gal conseq uences n aturally deducible therefr om. Montgomery v. U Ner tle, 143 Md. 20 0, 361, 122 A. 357 (1 923); Elfont v. Elfont, 161 Md. 458, 471, 157 A. 741, 746 (1932) ( [T]o render a marriage invalid because of insanity on the part of one of the parties to the contract, it must be shown clearly and convincin gly that such party was unable to understand the nature of the contract of marriage and to appreciate the legal consequences naturally deducible therefrom. ). Bigamous relationships are likewise subject to regulation by the State, and any marriage stemming from such a relationship is considered void. Roth v. Ro th, 49 Md. App. 433, 436, 433 A.2d 1161, 1164 (1981) (voiding a marriage when one of the parties has a still-living spouse from a previous marriage where no decree of divorce from the previous m arriage has been issued); Donne lly v. Donn elly, 198 Md. 341, 346-47, 84 A.2d 89, 92 (1951); see Family Law § 2402(b) (requiring in the application for a m arriage license disclosure by the parties of the marital status of each p arty). We are not aw are of any case from Maryland, the U.S. Supreme Court, or elsewhere domestically in which the issue has been framed in terms of whether the fundamental right to marry encompasses, for example, the fundamental r ight to marry a person of one s choosing without government interference, even if that other person is 84 lineally and direc tly related to the citize n asserti ng their funda menta l right to m arry, such that strict scrutiny was deemed the appropriate standard of constitutional review to analyze the relevant statute. The principle of defining precisely the asserted liberty interest is not limited to the analytical context of marriage. When the scope of an asserted liber ty interest becomes relevant to determining the fundamental nature of that right, we have sought to define narrowly that right and identify precisely the group asserting the liberty interest. In Suessmann v. Lamone, 383 Md. 697, 862 A.2d 1 (2004), for example, unaffiliated registered voters filed suit in the Circuit Court for St. Mary s County seeking declaratory and injunctive relief from the allegedly uncon stitutional exclusion of unaffiliated vo ters from the Demo cratic and Republican Parties primary elections for circ uit cour t judicial c andida tes. 383 Md. at 704, 862 A.2d at 5. Judges were chosen in a general election to which the judges gained access by securing placem ent on the ballot through v ictory in either of the primary elections held by the Democratic a nd Re publica n parties . Suessmann, 383 Md. at 704-05, 862 A.2d at 5. The State argued in that case, and we agreed, that the mere fact a law imposes a burden on the right to vote does not mean the law must be subjected to strict scrutiny. Suessmann, 383 Md. at 729-30, 862 A.2d at 20. Rather than framing the constitutional issue in terms of the generally stated fundamental right to vote, we reviewed the election laws narrowly, and in terms of whether the State ha[d] deprived [the plaintiffs] of the right to vote in the primary elections of a party to which they [did] not belong. 85 Suessmann, 383 Md. at 731, 862 A.2d at 21. This method of framing the asserted liberty interest is not inc onsisten t with th at taken by variou s other c ourts ad dressin g the issu e. See, e.g., In re Marriage Cases, 143 Cal. App. 4th at 702 ( Constitutionally protected fundamental rights need not be def ined so bro adly that they will inev itably be exercised by everyone. ); see also Glucksberg, 521 U.S . at 722-26, 7 28, 117 S . Ct. at 2269, 138 L. Ed. 2d 772 (framing the asserted liberty interest as the right to com mit suicide with another s assistance rather than the more abstractly-stated liberty to choose how to die or righ t to choose a humane, dignified death, and determining that, even though the right to refuse lifesaving medical treatment was deeply rooted in our Nation s history, there existed no fundam ental right to as sisted suicide ); see also Glucksberg, 521 U.S . at 727-28, 1 17 S. Ct. at 2271, 13 8 L. Ed. 2d 772 ( Th at many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected. ); Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, No. 04-5350, __ F.3d __, 2007 WL 2238914, at * 4, 4 n.5 (D.C. Cir. 2007) (determining, pursuant to Glucksberg, that the issue was framed properly as to wheth er terminally ill patien ts have a fu ndamen tal right to experimental drugs that have passed Phase I clinical testing, rather than the broadly-asserted right to try to save one s life proposed by the termin ally ill patients and adopted by the dissent); Eschenbach, No. 04 -5350 , F.3d , 2007 W L 2238 914, at * 4 n.5 (D.C. Cir. 2007) ( If the asserted right is so broa d that it protects a person s e fforts to sav e his life, it 86 might subject to strict scrutiny any government action that would affect the means by which he sought to do so, no matter how rem ote the chance of su ccess. ). Our task, therefore, is to determine whether the right to same-sex marriage is so deeply embedd ed in the histo ry, tradition, and cu lture of this Sta te and Na tion that it shou ld be deem ed funda mental. W e hold that it is n ot. B. There is N o Funda mental R ight Requ iring the State to Sanction Same-Sex Marriage It is well-established that the concepts of equal protection and due process embodied in Article 24, similar to the Fourteenth Amendment, are viewed as somewhat flexible and dynamic in order to accommodate advancements in the contemporary political, economic , and so cial clim ate. As w e have stated, while the principles of the Constitution are unchang eable, in interpreting the language by which they are expre ssed it will be given a meaning which will permit the application of those principles to c hanges in the econo mic, social, and political life of the people, which the framers did not and could not foresee. Thus, while we may not depart from the Constitution s plain language , we are no t bound stric tly to accept only the meaning of the language at the time of adoption . . . . Thus, we construe the Constitution s provisions to accomplish in ou r modern society the purposes for which they were adopted by the drafters. Benson v. State, 389 Md. 615, 632-33, 887 A.2 d 525, 53 5 (2005) (c itations omitted ); see also Lawrence, 539 U .S. at 579, 123 S. Ct. at 2484, 156 L. Ed. 2d 508 ( As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. ). Mere acquiescence for any length of time, however, will not serve as an 87 adequate foundation for the constitutionality of a particular legislative enactment. We therefore consider the current economic, political, and social climate in order to determine whether same-sex marriage is a fundam ental right. There is no doubt that the legal landscape surrounding the rights of homosexual persons is evolving. A trend toward gay, lesbian, and bisexual pe rsons gainin g more rig hts seems ev ident within Maryland, see gener ally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a Sexual Orientation-Blind System in Maryland and the Recognition of Same-Sex Marriage, 35 U. B ALT . L. R EV. 73, 75-92 (2005) (cataloging recent trends toward equality for lesbian, g ay, bisexual, and transsexual persons and its potential impacts on the constitutionality of same-sex marriage in M aryland), as well as in the laws of the Nation as a who le. Lawrence, 539 U.S . at 575, 579 , 123 S. Ct. at 2482, 2484, 156 L. Ed. 2d 508 (overruling Bowers and declaring that the continued viability of the precedent allowing states to criminalize private consensual sexual intimacy between members of the same s ex dem eans the live s of hom osexual p ersons. ); Romer, 517 U.S. at 623-24, 632, 116 S. Ct. at 1623, 1627, 134 L. Ed. 2d 855 (invalidating on the grounds that it impos[ed] a broad and undifferentiated disability on a single named group an amendment to the Colorado Constitution that made it illegal for the legislature to pass laws prohibiting discrimination against gay, lesbian, and bisexu al persons o n accoun t of their sexual orientation); see also A MER. A SSOC. OF L AW L IBRARIES, S OCIAL R ESPONSIBILITIES S PECIAL INTEREST S ECTION, S TANDING C OMMITTEE ON L ESBIAN AND G AY I SSUES, 88 Introduction of S EXUAL O RIENTATION AND THE L AW: A R ESEARCH B IBLIOGRAPHY S ELECTIVE LY A NNOTATING L EGAL L ITERATURE T HROUGH 2005, at XXV (discussing the exponential increase in recent years of case law and legislative enactments granting to lesbian, gay, bisexual, and transsexual persons rights never before enjoyed). Desp ite this expanding library of statutory and judicial authorities acknowledging a growing awareness of the need to protect gay, lesbian, and bisexual persons in broader society, acceptance alone does not require that the State or we recognize the asserted fundamental right that Appellees seek. The breadt h of prec eden t, par ticul arly Romer and Lawrence, falls short of e stablishing as deeply rooted the concept of same-sex marriage. In Romer, while the S upreme C ourt held that it was unconstitutional for Colorado to amend its constitution to preclude state legislative enactmen ts protecting from discrimination based on sexual orientation, the Court did so on the basis of eq ual protection. The Court determined, furthermore, that a disadvantage imposed [that] is born of animosity toward the class of persons affected, thereby reflecting a bare . . . desire to harm a politically unpopular group[,] cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634-35, 116 S. Ct. at 1629, 134 L. Ed. 2d 855 (citations omitted). Th e Suprem e Court co ncluded th at the asserted state interests in protecting other citizens freedom of association who have personal or religious objections to homosexuality, and the interest in conserving resources to fight discrimination against other groups, Romer, 517 U .S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d 855, was 89 insufficient even for rational basis re view. Be yond the princ iple that no sta te may pass laws or state constitutional amendments that prohibit any and all state or local government action designed to protect homosexual persons as a name d class, Romer, 517 U.S . at 624, 116 S. Ct. at 1623, 134 L. Ed. 2d 855, nothing within the language of this landmark case establishes as deeply ro oted the conce pt of sa me-sex marriag e. Nor does Lawrence establish as deeply rooted the right to same-sex marriage. F irst, while the Court in that case overturned Bowers and declared unconstitutional the Texas statute on the basis that [the law and tradition s in the past h alf century] show an emerging awareness that liberty gives substantial protection to adult p ersons in de ciding how to conduct their priv ate lives in matte rs pertain ing to se x, Lawr ence, 539 U.S. at 571-72, 123 S. Ct. at 2480, 156 L. Ed. 2d 508, it did so on what appears to be rational basis review. 539 U.S. at 579, 123 S. Ct. at 2484, 156 L. Ed. 2d 508 ( The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. ) (emphas is added). N or did the Court in that case state expressly that the right to sexual intercourse between two individuals of the same-sex was fu ndam ental. Lawrence, 539 U.S. at 586, 123 S. Ct. at 2488, 156 L. Ed. 2d 508 (S calia, J., dissenting) ( Though there is discussion of fundamental proposition[s], . . . , and funda menta l decisio ns, . . . , nowhere does the Court s opinion d eclare that ho mosexu al sodom y is a fundam ental right under the Due Process Clause; nor does it subject the Texas law to the standard of review that would b e approp riate (strict scrutiny) if homo sexu al sodom y were a fundamental 90 right. ). If the Court in Lawrence was unwilling to declare that the right of two persons of the same sex to engage in sexual intimacy was deeply rooted in history and tradition, we are not disposed to accept that the Lawrence Court intended to confer such status on the public recognition of an im plicitly simil ar relatio nship. See Standhardt, 77 P.3d a t 457 ( If the Court did not view such an intimate expression of the bond securing a homosexual relationship to be a fundamental right, we must reject any notion that the Co urt intended to confe r such s tatus on the righ t to secu re state-s anction ed reco gnition of suc h a unio n. ). Indeed, the Supreme Court in Lawrence, after declaring unconstitutional the Texas statute that forbade same-sex intimate conduct, held that [t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who a re situated in relationships where consent might n ot easily be refuse d. It does not involv e public condu ct or pro stitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot de mean the ir existence or control their destiny by ma king their private sexu al conduc t a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal an d private life o f the individ ual. Lawrence, 539 U.S. at 578-79, 12 3 S. Ct. at 2484, 156 L . Ed. 2d 508 (em phasis added). Lawrence does not establish a fundamental right to same-sex marriage. 91 Several of the holdings by other courts that hav e addre ssed the issue are in acco rd. See, e.g., Standhardt, 77 P.3d at 456-57 (determining that the Supreme Court s holding in Lawrence cannot be interpreted to provide for s ame-sex m arriage); Wilson, 354 F. Supp. 2d at 1307 ( [T]he Supreme Court s Decision in Lawrence cannot be interpreted as creating a fundamental right to same-sex marriag e. ); Andersen, 138 P.3d at 979 (distinguishing Lawrence on similar grounds). We are unw illing to hold that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland. Glucksberg, 521 U.S . at 721, 117 S. Ct. at 2268, 138 L. Ed. 2d 772. Even a quick glance at the laws of Maryland indicate that this State has long regarded marriage as a union between a man and a woman. The consanguinity statute, for example, addresses only those marriages w ith a certain degree of blood relation as between members of the opposite sex. Family Law § 2-202. The statutory scheme regu lating dealings between spouses refers to the parties in terms of a married w oman a nd her h usband. F amily Law §§ 4-201 to 4-205. Family Law § 4-301, furthermore, involves liabilities for, and protection from, the obligations of a spouse. The statute addresses onl y those liabilities as between husband and wife. These are only a few of the examples of Maryland family law statutes that recognize sex-specific language when referring to the marital relationship. T he point is that despite the long-es tablished pre sence of F amily Law § 2-201, th e laws of our State 92 histo rical ly, and continue to, employ sex-specific language that reflects M aryland s adhere nce to th e traditio nal und erstand ing of m arriage as betw een a m an and wom an. In spite of the changing attitudes about what constitutes a nuclear family, Congress, as well as nea rly every state in the Nation, has taken legislative action or otherwise enacted constitutional amendments limiting explicitly the institution of marriage to those unions between a man and a woman. 67 With the exception of M assachusetts, virtually every court to have considered the issue has held tha t same-sex marriage is n ot constitution ally protected as funda menta l in either their state or the N ation as a who le. Standhardt, 77 P.3d at 465 ( [A]lthough many traditional views of homosexuality have been recast overtim e in our state 67 1 U.S.C .A. § 7 (1996) ( In determining the means of any Act of Congress, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husba nd or wife. ); A LASKA C ONST. art. I, § 25; A RK. C ONST. amend. 8 3, § 1; G A. C ONST. art. I, § IV, ¶¶ I; H AW. C ONST. art. I, § 23; K AN. C ONST. art. XV, § 1 6; K Y. C ONST. § 233a; L A. C ONST. art. XII, § 15; M ICH. C ONST. art. I, § 25; M ISS. C ONST. art. 14, § 263 A; M O. C ONST. art. I, § 33; M ONT. C ONST. art. XIII, § 7; N EB. C ONST. art. I, § 29; N EV. C ONST. art. I, § 21; N.D. C ONST. art. XI, § 28; O HIO C ONST. art. XV, § 1 1; O KLA . C ONST. art. II, § 35; O R. C ONST. art. XV, § 5a; T EX. C ONST. art. I, § 32; U TAH C ONST. art. I, § 29; A LA. C ODE § 30-1-19 ; A RIZ. R EV. S TAT. § 25101; C AL. F AM. C ODE § 308.5 (West); C OLO . R EV. S TAT. § 14-2-104; C ONN. G EN. S TAT. § 45a-727a; D EL. C ODE A NN. tit. 13, § 101; F LA. S TAT. § 741.212 ; IDAHO C ODE § 32-201 (Michie); 750 ILL. C OMP. S TAT. 5/201, 5/21 2; I ND. C ODE § 31-11-1-1; IOWA C ODE § 595.2; M E. R EV. S TAT. A NN. tit. 19-A, §§ 6 50, 701; M INN. S TAT. §§ 517.01, 517.03; N.H. R EV. S TAT. A NN. §§ 457:1, 457:2; N.J. S TAT. A NN. 37:1-1 , -3; N.M . S TAT. A NN. § 40-1-18 (Michie); N.Y. D om. Rel. Law §§ 51-1, 51-1.2 (M cKinney); 23 P A. C ONS. S TAT. §§ 1102, 1704; R.I. G EN. L AWS §§ 15-1-1, 15-1-2, 15-2-1; S. C. C ODE A NN. § 20-1-15 (Law. Co-op.); S.D. C ODIFIED L AWS § 25-1-1 (M ichie); T ENN. C ODE A NN. § 36-3-11 3; V T. S TAT. A NN. tit. 15, § 8; V A. C ODE A NN. §§ 20-45 .2, 20-45.3 (M ichie); W ASH. R EV. C ODE § 26.04.020(1)(c); W. V A. C ODE § 48-2-10 4(c); W IS. S TAT. §§ 765.001 (2), 765.01 ; W YO. S TAT. A NN. § 20-1101 (Michie). 93 and Nation, the choice to marry a same-sex partner has not taken sufficient root to receive constitutional protection as a fundam ental right. ); Lewis, 908 A.2d at 211 ( D espite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a rig ht to same-sex ma rriag e is so deep ly rooted in the tr aditi ons, histo ry, and conscience of the people . . . that it ranks as a f undame ntal right. ); Dean, 653 A.2d at 332-33 (declaring summarily that same-sex marriage is not deeply rooted in history and tradition); Baehr, 852 P.2d at 57 (concluding that there is no fundamental right to same-sex marriage); Baker v. Nelson, 191 N.W.2d at 186 ( The institution of marriage as a union of man and woman . . . is as old as the b ook of G enesis. ); In re Kandu, 315 B . R. at 140 (holding that there is no fundamental right to same-sex marriage based on the Supreme Court s ca utionary statem ents that cou rts should exercise the utmost care in establishing a new fundamen tal liberty interest); Hernandez, 855 N.E.2d at 9 ( T he right to marry someone of the sam e sex, how ever, is not deeply rooted ; it has n ot even be en asserted until relatively recent times . ); Andersen, 138 P.3d at 979 ( That some laws provide [protections to gay and lesbian persons] shows change is occurring in our society, but community standards at this time do not show a societal commitment to inclusion of same-sex marriage as part of the f undame ntal right to marry. ); but see Goodridge v. Dep t of P ub. Hea lth, 798 N.E.2d 941, 961 (Mass. 2003) ( Because the statute does not survive rational basis review, we do not consider the [same-sex couples ] arguments that this case merits strict scrutiny. ). 94 While the opinion s of other c ourts in the Nation are not conclusive with regard to the present case, even when they constitute an overwhelming majority, their reasoning and analysis are instructive as they provide a sampling of the current socio-political climate in which we make our determ ination wh ether the asse rted right is fun damenta l. We are not unmindful of the fact that the relationships gay, lesbian, and bisexual persons seek to ente r involve intimate and private decisions that extend to the core of the right to personal autonomy. Those decisions do not necessarily require us or th e State to recognize formally those relationships in the form of State-san ctioned m arriage. Tha t a liberty interest such as the argued-for right to marry a person of the sex of one s choosing, even if assumed to be important, does not render autom atically fundam ental that liberty interest. Glucksberg, 521 U.S. at 727 -28, 117 S . Ct. at 2271, 1 38 L. Ed . 2d 772; Hornbeck, 295 Md. at 649, 458 A.2d at 786 ( Whether a claimed right is fundamental does not turn alone on the relative desirability or importance of that right. ). When d ealing in the re alm of due process, furthermore, we are hesitant to recognize new fundamental rights, especially when the Supreme Court has either failed or declined to do so. [W]here social or econo mic legislation [such as the regulation of marriage] is involved, . . . [we] have gen erally avoided labeling a right as fun damenta l so as to avoid activating the exacting strict scrutiny standard of review. Hornbeck, 295 Md. at 650, 458 A.2d at 786. As the Sup reme Court stated, [b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must 95 therefore exercise the utmost care whenever we are asked to break new ground in this fie ld, . . . lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. Glucksberg, 521 U.S. at 720, 117 S. C t. at 2268, 138 L. Ed. 2d 772 (quoting Collins v. City of H arker He ights, 503 U.S . 115, 125, 1 12 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992)). With these principles in mind, and in light of Maryland s history of limiting marriage to those unions between mem bers of the opposite sex, coupled with the policy choices of nearly every other state in the Nation, we do not find that same-sex marriage is so deeply rooted in this S tate or the cou ntry as a who le that it should be regarded a t this time as a f undame ntal right. V. Family Law § 2-201 Comports w ith Notions of Rational Basis Review.68 Because Family Law § 2-201 do es not discrim inate on the basis of sex, bu rden signif icantly a funda menta l right, or otherwise draw a classification based on suspect or quasi-suspect criteria, rational basis review is the correct standard of constitutional review under which we consider the Maryland marriage statute. Under that standard, the State[] [is afforded] a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State s objective. [The General Assembly is] 68 Judge Raker agrees that rational basis review is the approp riate standard to apply to analysis of Appellees Article 24 argument (Raker dissent, slip op. at 5), whether viewed in support of a claim that gay and lesbian c ouples should hav e a right to marry in Maryland or, as Judge R aker supp lies for Ap pellees, an alte rnate claim of relief that they should be granted civil union, domestic partners registration, or some other relief short of marriage. 96 presumed to have ac ted within th eir constitutional pow er despite the fact that, in practice, the ir laws result in some in equality. A statutory discriminatio n will not be set aside if any state of fa cts reasonab ly may be conce ived to justify it. McGowan, 366 U.S. at 425-26, 81 S. Ct. at 1105, 6 L. Ed. 2d 393; Murphy, 325 Md. at 355, 601 A.2d at 108 ( [A ] court will not overturn the classification unless the varying treatment of differe nt groups o r persons is so unrelated to the achieve ment of any combination of legitimate purposes that [the court] can only conclude the [governmental] actions were irrational. ). Rational basis review does [not] autho rize the judicia ry [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that n either affec t fundam ental rights nor proceed along suspect lines. Heller v. Doe, 509 U.S. 312, 319, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511 (1976) (per curiam)); Md. Ag gregates A ss n, Inc. v. State , 337 M d. 658, 655 A.2d 88 6 (1995) ( [C]ourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. ) (citations omitted). Thus, Family Law § 2-201 is presumed constitutiona l, and the burden is on Appellees to establish the unconstitutionality of the statute. Whiting-Turner Contract Co., 304 Md. at 352, 499 A.2d at 18 5 (holding that a statute reviewed under the rational basis test enjoys a strong presumption of co nstitutionalit y, [and] can be invalidated only if the clas sification is w ithout any reaso nable basis and is purely arbitrary ). This burden requires Appellees to negative every conceivable basis which might s uppor t [the sta tute], whether or not the ba sis has a fo undatio n on the record . 97 Heller, 509 U.S. at 320-21, 113 S. Ct. at 2643, 125 L. Ed. 2d 257 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U .S. 356 , 364, 93 S. Ct. 1001, 1006, 35 L. Ed. 2d 351 (1973)). Appellan ts offer in support of Family Law § 2-201 two primary governmental interests: (1) the State has a legitimate interest in maintaining and promoting its police powers over the traditional institution of marriage and its binary, opposite-sex nature; and (2) the State has a legitimate interest in encouraging marriage between two members of the opposite sex, a union that is uniquely capable of producing offspring within the marital unit. We shall consider these interests, as necessa ry, in order to determine first, whether either (or both) is sufficient to justify the distinction made in Family Law § 2-201, and secondly, wheth er the m eans fit suffici ently the e nds sou ght by the statute. We agree that the State s asserted intere st in fostering procreation is a legitimate governmental interest. As one of the fundamental rights recognized by the Sup reme Court as a matter of personal autonomy, procreation is considered one of the most important of the fundamental rights. Skinner, 316 U.S. at 541, 62 S. Ct. at 1113, 86 L. Ed. 1655 ( Marriage and procreation are fundamental to the very existence and survival of the race. ) (emphas is added); Zablocki, 434 U.S. at 386, 98 S. Ct. at 681, 54 L. Ed. 2d 618 ( It is not surprising that the decision to marry has been placed in the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . . [I]t would make little sense to recognize a righ t of privacy with respect to other m atters of family life and not 98 with respect to the decision to enter the relationship that is the foundation of family in our society. ); Meyer, 262 U .S. at 399, 43 S. Ct. at 626, 67 L. Ed. 1042 (recognizing that the right to marry, estab lish a home and bring up children is a central p art of the liberty protected by the Due Process Clause). In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and co ntinuance of the hum an race is a leg itimate governm ent interest. The question remains whether there exists a sufficient link between an intere st in fostering a stable environment for procreation and the means at hand used to further that goal, i.e., an implicit restriction on those who wish to avail themselves of State-sanctioned marriage. We conclude that there does exist a sufficient link. As stated earlier in this opinion, marriage enj oys its fundamental status due, in large part, to its link to procreation. Loving, 388 U.S . at 12, 87 S. C t. at 1823, 18 L. Ed. 2d 1 010 ( M arriage is one of the bas ic civil rights of man, fundamental to our very existence and survival. ) (emphasis added); Skinner, 316 U.S. at 541, 62 S. Ct. at 1113, 86 L. Ed . 1655 ( Marriage and procreation are fundam ental to the ve ry existence an d survival o f the race. ); Maynard, 125 U.S. at 211, 8 S. Ct. at 729, 31 L. Ed. 654 ( [Marriage] is an institution, in the maintenance of which in its purity the public is deeply in teres ted, f or it is the f oundatio n of the f amil y and society, without which there would be neither civilization nor progress. ). This inextricable link between marriage and procreation reasonably could support the definition of marriage as 99 between a ma n and a w oma n only, because it is th at relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding). Acceptance of this notion is found in the clear majority of opinions of the courts that hav e consi dered th e issue. See Standhardt, 77 P.3d at 4 58 ( Imp licit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one wo man. ); Dean, 653 A.2d at 332-33 (holding that the right to marriage is d eemed f undame ntal becaus e of its link to procreatio n); Singer, 522 P.2d at 1197 ( [M]arriage is so clearly related to the public interest in affo rding a fav orable environment for the grow th of childre n that we a re unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one w oman. ); Andersen, 138 P.3d at 982-83 ( But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterose xual coup les are the on ly couples who can produce biological offspring of the couple. ); Baker v. Nelson, 191 N.W.2d at 186 ( The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a fam ily, is as old as the book of Genesis. ) (citing Skinner, 316 U.S. at 541, 62 S. Ct. at 1113, 86 L. Ed. 2d 1655). Appellees urge in response, quite convincingly, that Family Law § 2-201 is not related rationally to the governmen tal objective of fostering optima l relationships for procreation because it is at once over-inclusive and under-inclusive. Appellees argue that it is over- 100 inclusive because children may be born into same-sex relationships through alternative methods of con ception , including surrogacy, artificial insemination, in vitro fertilization, and adoption. The statute is also under-inclusive, according to Appellees, because not all opposite-sex couple s choo se to be ar childr en, or are able to do so because of infertility or othe rwis e. La stly, Appellee s posit that the m arriage statute is not linked sufficiently to the interests in procreatio n becaus e allowing same-sex couples to m arry will not imp act interests in procreation in that [o]pposite-sex couples will continue to bring children into their families through traditional procreation rega rdless of whether sam e-sex couples are permitte d to ma rry. 69 69 Judge B attaglia s dissen t, in response to the State s assertion that it has an interest in marriage as an institutio n of transc endent im portance to social welf are, posits tha t, until the recent advances in assisted reproductive technology, there was a close[ ,] albeit imperfect fit[,] between opposite-sex marriage and the inherent biological fact that reproduction of our species could result only from the sexual union of a man and a w oman . . . . The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today. Judge Battaglia s Dissent, slip op. at 77. In that vein, the dissent argues that [t]he phenomena of assisted reproduction and same sex marriage are so new and radical that there exists no evide nce thus fa r to support or refute the asserted link [between reproduction and the State s asserted interest in marriage as an institution of transcendent importance to social welfare ] and its concomitant external effect s. Thus far, courts that have w eighed this argument favorably have done so under rational basis review. The State s contention that the same-sex marriage ban arises organically from the nature of marriage itself, and that the much later codification accomplished by [Family Law §] 2-201 merely clarifies society s compelling interest in the h istoric family unit (contin ued...) 101 69 (...continued) as a mechanism for protecting the progeny of biolo gical un ions, actually asserts the Sta te interest in promoting an orderly, stable society. On the present state of the record, I believe neither party has explo red this issue in the depth appropriate to an issue of such permanent, transcendent magnitude. Judge Battaglia s Dissent, slip op. at 80 (citations omitted). As such, Judge Battaglia and Chief Judge Bell would remand, pursuant to Maryland Rule 8-604(d) ( If the Court concludes that the substantial m erits of a case will not be determined by affirming, reversing or modifying th e judgme nt, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower c ourt ), in order to conduct an evidentiary hearing regarding what it refers to as the State s unrebutted contention regarding the broad societal interest in retaining traditional marriage. Id. In ordering a r emand f or the purp oses of ad ditional evidentiary hearings, a Court exercising appellate jurisd iction must e xplain expressly its reasons fo r doing so. M d. Rule 8-604(d)(1). The prob lem with re manding in the presen t case lies in the fact that neither the record nor the briefs of the litigants reflect a dispute of material fact of the kind imagined by the dissent. Alth ough A ppellees arg ue genera lly that the distinction made by Family Law § 2-201 is over-inclusive and, at the same time, under-inclusive, they do not point to an evidentiary conflict necessitating remand for the purpose of an evidentiary hearing and resolution of a factual dispute. Appellees instead a ssert that they are entitled to summary judgment by virtue of what they deem to be a flaw fatal in the constitutionality of the marriage statute. If this Court were to acc ept the reasoning of Ju dge Battaglia s dissent and reverse the grant of summary judgment, pursuant to Maryland Rule 2-501 (a), (f) (providin g that a motion for summ ary judgmen t may be granted only when there exists on the record no genuine disputes of material fac ts and the m ovant is entitled to judgment as a matter of law), we essentially would be recognizing in the record an illusory dispute of fact fatal to the grant of summary judgment when one does not exist. This we should decline to do. See Hass v. Lockheed Martin Corp., 396 Md. 469, 478, 914 A.2d 735, 740 (2007) (holding that, when reviewing a circuit c ourt s g rant of s umm ary judge ment, [w]e c onside r, de novo, first, whether a materia l fact was pla ced in gen uine dispu te, thus requiring a trial, and . . . whether the Circuit Co urt was legally correct in granting summary judgment. ) (citing Livesay v. Baltimore County , 384 Md. 1, 9, 862 A.2d 33, 38 (2004 )) (empha sis added); Neifert v. Dep t (contin ued...) 102 There is some m erit to these arg uments. There appears to be a trend towards the gradual erosion of the traditional nuclear family in today s society to the extent that the classic family structure, consisting of a mother, father, and children born to them during the marriage, is less and less the norm. In 2000, of the 104.7 million households counted by the U.S. Census Bureau, only 55.3 million of them were com posed of married co uple households. Jason Fields & Lynne M . Caspe r, U.S. C ensus B ureau, America s Families and Living Arrangements: March 2000, Current Population Reports, P20-537, at 1 (2001), available at http://www.censu s.gov/prod/2001pu bs/p20-537.pdf (h ereinafter America s Families 2000"). Of th ose 10 4.7 million households, only 24.1 pe rcent were represented by the nuclear family (married couples with their ow n childr en). Id. at 3. This number represented a drastic decline from 40 percent of all house holds in 1970. Id The percentage of married opposite-sex households without children, however, remained constant from 1970 to 2000 at approximately 29 percent of all households in the United States. Id. As of 2000, therefore, there were just as many married households in the United States without marital children as those households with marital children. The period of time from 1970 to 1990, furthermore, saw an increase in births among unmarried women, raising the proportion of 69 (...continued) of Env t, 395 Md. 486, 910 A.2d 1100 (2006) ( In reviewin g a grant o f summ ary judgm ent, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. ) (citing Livesay, 384 Md. at 9, 862 A.2d at 38) (emp hasis added). 103 children living w ith a sing le paren t. Id. at 4 (quoting Amara Bachu, U.S. Census Bureau, Trends in Premarital Childbearing: 1930-1994, Current Population Reports, P23-197 (1999)). In 2000, there were 10 million single-mother families in the United States (up from 3 million in 1970), and 2 m illion single-father families (up from 393,000 in 1970 ). Id. at 6-7, 8. The statistics are not limited to households in which children live with on e or both biological/ge netic parents. Indeed, reports from the U.S. Census Bureau show that of the 72.1 million childre n in the United States in 2000, on ly 68 percent live in a married couple family home . Households Terry Lu galia, Ju lia Ove rturf, U .S. Cen sus Bu reau, Children and the They Live In: 2000, CEN SR-1 4, http://www.census.gov/prod/2004pubs/censr-14.pdf at 8 (200 4), (hereinafter available Children and at the Households They Live In ). Four million, four hundred thousand children (6.1% of the total children in the United States) lived with one or both grandparents, whereas 5.9 million children lived with someone other than a b iological/g enetic p arent. Id. at 2, 3. See also Brent Benn ett, et al., To Gra ndmoth er s Hou se We G o: Exam ining Trox el, Harrold, and the Future of Third-Party Visitation, 74 U. C IN. L. R EV. 1549, 1553 (2006). In 2000 and closer to home, according the Census Bureau, 67 percent of all children in Baltimore lived outside of a married couple household, while 25.7 percent of all children live d with someone other than a biologica l/genetic pare nt. The C ity ranked in the top five nationwide in both of these categories. Children and the Households T hey Live In, supra, at 18. Thus, reasonable doubt 104 exists that the traditional m odel of w hat constitute s a family doe s not constitu te the majority of households an y longer. A legislative enactment reviewed under a rational basis standard of constitutional review need not be drawn with mathematical exactitude, and may contain imperfections that result in some degree of ineq ualit y. Piscatelli v. Bd. of Liquor License Comm rs, 378 Md. 623, 644-45, 8 37 A.2d 931, 944 (2003) ( [ A] state do es not violate the Equal Protection Clause merely becau se the classific ations mad e by its laws are im perfect. If the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not mad e with mathem atical nicety or because in practice it results in some inequality. ) (citations om itted); Whiting-Turner, 304 Md. at 352, 499 A.2d at 185 ( [A] classification [subject to rational basis review] having some reasonable basis need not be made with mathematical nicety and may result in some inequality ). Looking beyond the fact that any inquiry into the ability or willingness of a couple actually to bear a child during marriage would v iolate the fundamental right to marital privacy recognized in Griswo ld, 381 U.S. at 484-86, 493, 85 S. Ct. at 1681, 14 L. Ed. 2d 510, the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation. In such a situation, so long as the Leg islature has no t acted wh olly unreason ably in granting recognition to the only relationship capable of bearing children traditionally within the m arital unit, we may no t substitute [o ur] social and econom ic beliefs 105 for the judgment of legislative bodies . . . . Md. Ag gregates A ss n, Inc. v. State , 337 Md. 658, 655 A.2d 88 6 (1995); see also Heller, 509 U.S. at 321, 113 S. Ct. at 2643, 125 L. Ed. 2d 257 ( [C ]ourts are co mpelled under rational-based review to a ccept a legislature s generalizations even when there is an imperfect fit between mean s and en ds. A classification does not fail rationa l-basis review because it is n ot made w ith mathematical nicety or because in practice it results in some inequality. ) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970)). In light of the deference owed to the General Assembly under rational basis review, we shall not declare Family Law § 2-201 unconstitutio nal, even though it may be under- or over-inclusive, or otherwise create a distinction based on imperfectly drawn criteria.70, 71 70 Because we find that the State s interest in fostering procreation sufficient to sustain Family Law §2-201, we need not address the alternative, and rather circular, justification offered by Appellants based on the State s interest in maintaining its police power over the social institution of marriage. 71 Judge Raker s dissent, which follows closely the legal reasoning employed by the New Jersey Supreme Court in Lewis v. H arris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006), essentially rests on two strata: (1) the Due Process Clause of Article 24 of the Maryland Declaration of Rig hts; and (2) the E qual Pr otection Clause embo died in A rticle 24 . See, e.g., State v. Good Samaritan Hospital of Md., Inc., 299 Md. 310, 326 n.7, 473 A.2d 892, 90 0 n.7 (1984) ( The Maryland Constitution does not contain an express equal protection clause; the concept of equal p rotection is, ho wever, em bodied in Article 24 of the Declaration of Rights. ) (citing Hornbeck v. Somerset Co. Bd. of E duc., 295 Md. 597, 616, 458 A.2d 758 (1983 )). In line with the majority opinion h ere, Judge R aker s dissen t posits initially that, even though Maryland s citizenry is a diverse and tolerant group, and there exists in Maryland precedent and statutory authority that evidence increasing social acceptance of homosexual persons, the same-sex couples do not have a fundamental right to marry. Despite the absence (contin ued...) 106 71 (...continued) of a fundamental right of same-sex couples to marry, however, the dissent reasons additionally that Article 24's equal protection guarantee mandates that same-sex couples otherwise be afforded the various rights and benefits currently available under Maryland law only to opposite- sex coup les. Dissent slip op. at 32; see also Lew is, 908 A.2d at 200. In that vein, the dissent concludes essentially that the General A ssembly must either a mend F amily Law § 2-2 01 to allow same-sex couple s to m arry, or create a substitute scheme under which same-sex couples may enjoy the same rights and benefits, as well as bear the same obligations, as married opposite-sex couples. Judge Raker s Concurring and Dissenting Opinion , slip op. at 38-3 9; see also Le wis, 908 A .2d at 20 0. We disagree with Judge Raker s dissent for, other than the reasons advanced in the body of the ma jority opinion, the simple reason that Appellees here expressly disavowed any present desire to obtain the alternate relief s he propo ses. Ordina rily in Maryland, a c ourt, whether trial or appellate , does not fa shion relief w here the rec ord reflects th at the parties to be ben efitted re pudiate d expre ssly the pro posed relief. Appellees, in this record, cited a number of intangible protections of marriage for themselves and especially for their children. One such benefit relates to the sense of dignity that would accompany recognition of same-sex marriage in Maryland. Appellees refer, not only to the dig nity th at ma y be felt by the same-se x couples themselve s, but also to the ir children in that the children , if their same-s ex parents were able to marry, would feel proud of who they are and where they come from. One Appellee stated, in support of Appellees motion for summary judgment, that [t]he legal sanction of [their] relationship through the institution of civil marriage would greatly diminish the stig ma that [the ir] daughters will otherwise bear, simply because their parents are a same-sex couple. Another Appellee noted that she su ffer[s] dig nitary harm on account o f the fact tha t the law ef fectively requires [her] to choose between [her] life in Maryland and [her] relationship with [her partner], simply because [they] are not recognized as spouses. Several Appellees iterated, in support of their motion for summary judgment, that the grant of benefits of marriag e without a ctually recogniz ing same- sex marriag e only wou ld perpetuate the dignitary harm that they now claim to experience. Charles B lackburn wrote that anything short of civil marriage fo r same-sex couples would perpetuate second-class citizenship for lesbian a nd gay fam ilies. While w e respect the freedom of religious organizations to decline to perform religious wedding ceremonies for same-sex couples, we believe that such religious freedom cannot prevent our state from recognizing our (contin ued...) 107 VI. Conclusion Because Family Law § 2-201 does not abridge the fundamental right to marriage (as we understand that right), does not discriminate on the basis of sex in violation of Article 46, and does not otherwise implicate a suspect or quasi-suspect class, the marriage statute is subject to rational review. As such, it carries a stro ng presu mption o f con stitutionality. Under rational review, [w]he re there are plausible reasons for [the General Assembly s] action, our inquiry is at an end. . . . [Rationale basis review] is a paradigm of judicial restraint. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process that the judicial 71 (...continued) relationship. We believe that, rather than undermining the institution of marriage, a commitment such as our[s] honors it. We believe that we, too, are entitled to the dignity and respect that marriage bestows. Steven Palmer wrote that he and his partner [s]till risk discriminatio n fostered by the stigmatizin g messag e about the worth of [their] relations hip that [their] government sends to [the] c omm unity by exc luding [them ] from m arriage . Fina lly, Patrick Wojahn w rote that [m]ost of all, [he and his partner] wish for [their] relationship to enjoy that sam e social reco gnition as w ell as legal reco gnition as the relationships of [their] heterosexual peers. [Their] relationship can attain this level of respect only throu gh the in stitution o f marria ge. Thus, notwithstanding the statements of Appellees counsel at oral argument that Family Law § 2-201 denies same-sex couples that full citizenship th at is constitution ally guaranteed to them, no less than all other Marylanders, (emphasis added), Appellees appear to have disav owed, b oth impliedly and expressly, the alternate remedy Judge Raker w ould offer. Her dissent attempts to bestow upon Appellees the benefits of marriage , without actually granting them the right to marry, proposing exactly that which Appellees in the present case expressly chose not to seek in this litigation. 108 intervention is genera lly unwarranted no matter how unwisely we may think a political branch has acted. F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S. Ct. 2096, 2101, 12 4 L. Ed. 2d 211 (199 3) (citations om itted). In declaring that the State s legitimate interests in fostering procreation and encouraging the traditional fa mily structure in which children are born are re lated reason ably to the means employed by Family Law § 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same s ex. JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE CITY REVERSED; STAY VACATED; CASE REMANDED TO THAT COURT W ITH DIRECTIONS TO D E C L A R E C O N S T I T U T IO N A L T H E STATUTE AT ISSUE AND TO DENY INJUNCTIVE RELIEF TO APPEL LEES. COSTS TO BE PA ID BY APPELLEES. 109 In the Circu it Court for B altimore C ity Case No. 24-C-04-005390 IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2006 Frank C onawa y, et al. v. Gitanjali D eane, et al. Bell, C.J. Raker *Wilner *Cathell Harrell Battaglia Greene, JJ. Concurring in Part and Dissenting Opinion by Raker, J., w hich Bell, C .J., Joins in Part. Filed: September 18, 2007 *Wilner and Cathell, JJ., now retired, participated in the hearing and conf erence of this case w hile active membe rs of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Raker, J., co ncurring in part and dis senting, in w hich Bell, C .J., joins in part: I respectfully concur and dissent. Appellees assert that Maryland excludes them and their children from the protections unique to marriage solely because the person whom they love is a perso n of the same s ex. Appellee s seek the rig ht to marry, und erstanding that a civil marriage license entitles married couples to a vast array of economic and social benefits and privileges the rights of marriage as well as other intangible benefits. Because in my view entitlement to the rights of marriage and the right to marry are distinct issues, I analyze them sepa ratel y. I would adopt the same analysis that the S upreme C ourt of N ew Jersey em braced in Lewis v. Harris, 908 A.2 d 196 (N .J. 2006), in which same-sex couples sued state officials, seeking both a declaration that New Jersey s laws banning same-sex marriage violated the equal protection guarantees of the New Jersey Constitution as well as injunctive relief compelling the State to grant them marriage licenses. The New Jersey Court noted that the legal battle in the case had been waged over one overarchin g issue the right to marry. The court rejected this all-o r-nothin g app roach. Id. at 206. Instead, the court distinguished between the right to marry, on the one hand, and the rights of marriage on the other hand. Id. Specifica lly, the court considered appellees equal protection claim to consist of two components: whether committed same-sex couples h ave a con stitutional right to th e benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name marriage. I view the instant case be fore thi s Cou rt in the sa me w ay, i.e., the issue presented as having two components. 1 I would h old that den ying rights and benefits to committed same-sex couples that are given to married heterosexual couples violates the equal protection guarantee of Article 24 of the Maryland Declaration of Rights.2 As did the State of New Jersey, I would find that to com ply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex co uples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. Harris, 908 A.2d at 200. 1 The majority analyzes whether appellees have a cons titutional right to h ave their relationships recognized by the name marriage, but fails to consider whethe r appellees are entitled to the same benefits, rights and privileges afforded to married heterosexual couples. I write separately to address only this latter issue. 2 Article 24 of the Maryland Declaration of Rights states [t]hat no man ought to be taken or imprisoned or disseized of his freehold, li berties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his p eers, or b y the Law of the la nd. The Equal Protection Clause of the Fourteen th Amendment of the United States Constitution provides that no State shall deny to any person within its jurisdiction the equal protection of the laws. Although Article 24 does not contain an express equal protection clause, this Court has held that the same concept of equal treatment is embodied in the due process requirement of Article 24 of the Declaration of Rig hts. Frankel v. Board of Regen ts, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (quoting Renko v. McLean, 346 Md. 464 , 482, 697 A.2d 4 68, 477 (1997)). United States Supreme Court cases applying the E qual Protec tion Clause of the Fo urteenth Amendment are binding on this Court when applying that clause and are persuasive when we undertake to interpret and apply Article 24 of the Declaration of Rights. Id. at 313, 761 A.2d at 332. We reiterate that each provision is independent, however, and a violation of one is not necessarily a violation of the o ther. See, e.g., Dua v. Comcast, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002). It is well accepted that this Court may apply a more stringent standard of review as a matter of state law under Maryland s equivalent to the Equal Protection Clause. See Minnesota v. Clover Leaf Creamery Company, 449 U.S. 456, 461-63 n.6, 101 S. Ct. 715, 722 -23 n.6, 66 L. Ed. 2d 659 (1981). -2- The Vermont Supreme Court reached the same conclusion and adopted a similar approach. Baker v. State, 744 A.2d 864 (1999). Like the New Jersey plaintiffs, (and the Maryland plaintiffs), the Vermont plaintiffs sought injunctive and declaratory relief designed to secure a marriage license, their claims and arguments here have focused primarily upon the consequences of official exclusion from the statutory benefits, protections, and security incident to marriage under Vermont law. Id. at 886. Although the Vermont decision is based upon the Common Benefits Clause of the Vermo nt Constitutio n, the courtordered remedy for the deprivation of rights protected by the State Constitution makes eminent se nse. The c ourt held as follows: We hold that the State is co nstitutionally required to e xtend to same-sex couples the common benefits and protections that flow from marriage under Vermont law . Whethe r this ultimately takes the form of inclusion within the marriage laws themselves or a parallel domestic partnership system or some equivalent statutory alternative, rests with the Legislature. Whatever system is chosen, h oweve r, must conf orm with the constitutio nal imperative to afford all Vermonters the common benef it, protecti on, and security o f the law . Baker, 744 A.2d at 867.3 3 The Vermont court made clear that the Legislature could and should fashion the appropriate remedy, stating as follows: We hold only that plaintiffs are entitled under C hapter I, Artic le 7, of the Ve rmont C onstitution to o btain the sam e benefits and protections afforded by Vermont law to married opposite-sex couples. We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate, (contin ued...) -3- I. 3 (...continued) other than to note that the record h ere refers to a number of potentia lly constitutional statutory schemes f rom other jurisdictions. T hese include what are typically referred to as domestic partnership or registered partnership acts, which generally establish an alternative legal status to marriage for same-sex couples, impose sim ilar formal re quiremen ts and limitations, create a parallel licensing or registration scheme, and extend all or most of the same rights and obligations provided by the law to married p artners. See R eport, Haw aii Comm ission on Sexual Orientation and the Law (Appendix D-1B) (1995) (recommending enactment of Universal Comprehensive Dome stic Partnersh ip Act to establish equivalent licensing and eligibility scheme and confer upon domestic partners the same rights and o bligations un der the law that are conferred on spous es in a marriage relationship ) (emphasis adde d); C. Christe nsen, If Not Marriage? On Securing Gay an d Lesbian Family Values by a Simulacrum of Marriage , 66 Fordham L. Rev. 1699, 1734-45 (1998) (dis cussing va rious dom estic and fo reign dom estic partnership acts); A. Friedma n, Same-S ex Mar riage and the Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based Definitions of Marriage, 35 How. L.J. 173, 217-20 n. 237 (1992) (reprinting Den mark's R egistered Partners hip A ct ); see g ener ally, Note, A More Perfect Union: A Legal and Social Analysis o f Dome stic Partnersh ip Ordinances, 92 Colum. L.Rev. 1164 (1992) (discussing local dome stic partn ership la ws); M . Peders en, Denmark: Homosexual Marriage and New Rules Regarding Separation and Divorce, 30 J. Fam. L. 289 (1992) (discussing amendments to Denmark's Registered Partnership Act); M . Roth, The Norwegian Act on Registered Partnersh ip for Hom osexual Couples, 35 J. Fam. L. 467 (1997) (discussing Norway's Act on Registered Partnership for Homosexual Couples). We do not intend spec ifically to endorse any one or all of the referenced acts, particularly in view of the significant benefits omitted from several of the laws. Baker v. S tate, 744 A.2d 864, 886-87 (1999). -4- Under Maryland s traditional eq ual protectio n jurisprudence, a legislative classification which does n ot discrim inate on th e bas is of sex, burd en signif ican tly a fundamental right, or otherwise draw a classification based on suspect or quasi-suspect criteria may be sustained if the classification is rationally related to a legitimate governmental interest. See, e.g., Broadwater v. State, 306 Md. 597, 603, 510 A.2d 583, 585-86 (1986) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 87 L. Ed. 2d 3 13 (1985 )); Ehrlich v. Perez, 394 M d. 691, 7 16-17 , 908 A.2d 1220, 1235 (2006). In consideration of the majority s an alysis, I agree that ratio nal basis is the proper standard for reviewing Family Law § 2-201. As the majority notes, a statute subject to ratio nal basis rev iew will be upheld generally unless the classification is wholly irrelevant to the achievem ent of the State s objective. Attorney General v. Waldron, 289 Md. 683, 707, 426 A.2d 929, 942 (1981) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 1104, 6 L. Ed. 2d 393 (1961) and McDonald v. Bd. of Election, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739 (1969)). Furthermore, a classification subject to ratio nal basis rev iew may resu lt in some inequality so long as the state can produce any conceivable state of facts to justify the distinctio n. Whiting-Turner Contract. Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178, 185 (198 5); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511 (19 76). -5- It is incorrect, however, to presume that rational basis review is effectively no review at all, p artic ularly where vital personal interests are affected by a statutory classification.4 In Frankel, the Court noted its willingness to strike down, under rational basis review, laws that lack a ny reasonable justification.5 Frankel, 361 Md. 298, 315, 761 A.2d 324, 333 (2000). We stated as follows: We have not hesitated to carefully examine a statute and declare it invalid if we cannot disc ern a rational basis for its enactmen t. The vitality of this State s equal protection doctrine is demonstrated by our decisions which, although applying the deferential standard embodied in the rational basis test, have nevertheless invalidated many legislative classifications which impinged on privilege s cherished by our citizens. 6 4 Professor Cass Sunstein has documented that the United States Supreme Court has departed from the deferential rational basis standard with out d efin ing a new leve l of scrutiny. See Cass S unstein , Foreword: Leaving Things Undecided, 110 H ARV. L.R EV. 4, 59-61 (1996). These cases include Romer v. Evans, 517 U.S . 620, 635, 1 16 S. Ct. 1620, 1628-29, 134 L. Ed. 2d 855 (1996) (holding Colorado statute that banned state or local laws forbidding sexual-orien tation discrimination was not rationally related to legitimate governmental objective), City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450, 105 S. Ct. 3249, 3259-60, 87 L. Ed. 313 (1985) (applying rational basis review, Court invalidated zoning discrimination against mentally retarded as based on irrational prejudice ), and United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 2825-26, 37 L. Ed. 2d 782 (1973) (invalidating regulation that excluded nonfamily members of household from food stamp program). In each of these decisions, the Court e mployed a h ighly contextu al, fact-based analysis balancing private rights and public interes ts even w hile ostensibly applying minim al ration al basis r eview . 5 We note d that, such invalid regu lations have often imp osed eco nomic burdens, in a manner te nding to favor some Maryland residents over other Maryland residents. Frankel, 361 Md. at 315 (quotations omitted) (citing Maryla nd Agg regates v. Sta te, 337 Md. 658, 672 n. 9, 655 A.2d 88 6, 893 n. 9 (1995)). 6 See Lawrence v. Texas, 539 U.S. 558, 580, 123 S. Ct. 2472, 2485, 156 L. Ed. 2d 508 (contin ued...) -6- Id., at 315, 761 A.2d at 333 (quoting Verzi v. Baltimore County , 333 Md. 411, 419, 635 A.2d 967, 971 (199 4)). In practice, we have reviewed closely a legislative classification when important personal interests of distinct groups of Maryland residents are at stake or when legislation distributes benefits and burdens unequally between residents of the State.7 With this equal protection jurisprudence in mind, I turn to whether appellees are entitled to the same b enefits , rights an d privile ges aff orded t o married hete rosexu al coup les. II. 6 (...continued) (2003) (O Connor, J., concurring) ( We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits person al relationships. ). 7 See, e.g., Frankel, 361 M d. 298, 721 A.2d 32 4 (striking do wn, on ra tional basis review, tuition policy discriminating against certain in-state residents); Verzi v. Ba ltimore County, 333 M d. 411, 635 A.2d 96 7 (1994) (s triking dow n, on rationa l basis review, ordinance discriminating against tow operators w ithout a place of business in th e county); Attorney General v. Waldron, 289 Md. 683, 426 A.2d 929 (1981) (striking down, on rational basis review, statute discriminating again st retired judge pra ctitioners); Kirsch v. Prince George s County , 331 Md. 89, 626 A.2d 372 (1993) (striking down, on rational basis review, zoning ordinance discriminatin g against un iversity student ten ants); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973) (striking down, on rational basis review, statute discriminating against cos metologists) ; Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 276 A.2d 20 0 (1971) (striking dow n, on rational basis review, statute discriminating against out-of-co unty crabbers and oysterm en); City of Balto. v. Charles Ctr. Parking, 259 Md. 595, 271 A.2d 14 4 (1970) (s triking dow n, on rationa l basis review, ordinance discriminating against pain ted signs); Md. Coal Etc. Co. v. Bureau of Mines, 193 Md. 627, 69 A.2d 471 (1949) (striking down, on rational basis review, mining statute discriminating aginst non-exempt co unties); Dasc h v. Jac kson, 170 Md. 251, 183 A. 534 (1936) (striking down, on rational basis review , statute discrim inating aga inst paper-h angers); Havre de Grace v. Johnson, 143 Md. 601, 123 A. 65 (1923) (striking down, on rational basis review, an ordinance discrimin ating against out-of-city automobiles fo r hire). -7- Maryland s marriage law, Family Law § 2-201, entitles only opp osite-sex co uples to the rights of marriage. Md. Code (1984, 2006 Repl. V ol.), § 2-201 of the Family Law Article. As a resu lt of the classif ication in § 2-201, two similarly situated classes of people are established: committed same-sex couples and married opposite-sex couples. The State asserts that the classification is rationally related to a legitimate governmental in terest in encouraging marriage between two members of the opposite sex as a means of fostering a stable environment for procreation.8 Appellees, on the other hand, assert that the distinction between same-sex couples an d opposite -sex coup les does no t rationally further the State s interest in child welfare. A. Curre nt Laws Rig hts and Lim its In order to determine whether Maryland s marriage law is rationally related to a legitimate governm ental interest, it is first necessary to review how the M arylan d statutory, regula tory, and case la w has ev olved to ex pand righ ts to gays and les bians. It is highly significant that throughou t this State, base d on statutes and ordin ances, discrim ination against gays and lesbians is not tolerated or acceptable . As I will ou tline, discrimina tion on the b asis of sexual orien tation is against the law in this State. This context is important for analyzing 8 To reiterate, I do not address whether same -sex partners have the rig ht to define their relationship by the name of marriage or whether the State h as a legitimate interest in protecting the traditional institution of marriage by name. In this dissent, I analyze solely whether same-sex couples are entitled to the same rights of marriage that are provided in Maryland to heterosexual partners. -8- whether the State s proffered interest is legitimate, and whether the State s means fit sufficiently the ends sought by the statute. 1. Rights Over the past decade, Maryland has sought to eliminate discrimination based on sexual orientation an d to reduce the disparate treatment of people based on sexual orientation, particularly in the areas of family law, criminal law, and anti-discrimination legislatio n. Starting in the mid-1990's, Maryland appellate courts rejected the notion that homosexual individuals s hould be tre ated differently than heterosexual individuals when determining parental righ ts. Specifically, M aryland courts h ave rejected the notion th at a person is unfit f or visitati on righ ts becau se of h is or her s exual o rientatio n. Boswell v. Boswe ll, 352 Md. 204, 237-238, 721 A .2d 662, 678 (199 8); North v. N orth, 102 Md. App. 1, 15-17, 648 A .2d 1025, 1032-3 3 (1994). In North, the Court of Special Appeals, en banc, held that the trial cou rt abused its d iscretion in denying a homosexual father overnight visitation rights by focusin g on the perceived harms of expos ing his childre n to his homosexual lifestyle instead of focusing on the proper question o f whethe r visitation wa s in the best interests of his c hildren . North, 102 M d. App. at 1 5-17, 648 A.2d at 10 32-33. Th is Court has held subsequently that the sexual preference of the non-custodial parent whose visitation is being challenged is not relevant, and that restrictions on visitation should be -9- reviewed under the best interests of the child standa rd. Boswe ll, 352 Md. at 236-238, 721 A.2d at 678. Indeed, we noted in Boswe ll that the only relevance that a parent s sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children s emotional and/or physical well-being. Id at 237-38, 721 A.2d at 678. Maryland appellate courts have not considered sexual orientation as a factor when determining third party custod y rights. In a custo dy dispute betw een two homosexual women, the Court of Special Appeals held that the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by the biological mother s former samesex partner under the Uniform Child Custody Jurisdiction Act, even if Tennessee was the more conve nient fo rum. Gestl v. Frederick, 133 Md. App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000). Th e court note d that the fo rmer partne r, who w as not a biolo gical paren t, would lack standing to bring an action in Tennessee absent a finding that parental custody would result in substantial harm to the child, whereas Maryland law entitled the third party an opportun ity to show that exceptional circumstances existed that would make it in the child s best interests to grant her custody. 9 Id. The sexu al orientation o f the individ uals 9 This Court stated recently that where private third parties are attempting to gain custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of the ir children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a tria l court shou ld consider the best inte rests of the ch ild standard as a means of deciding the dispute. McD ermott v. D ougherty , 385 Md. 320, 325, 869 A.2d 751, (contin ued...) -10- raising the custody cla im was n ot a relevant factor in the court s holding the former samesex partner was viewed as any other third party who had a role in the ch ild s life and c ould show excep tional cir cumsta nces. See, e.g., Shurupoff v. Vockroth, 372 Md. 639, 814 A.2d 543 (2003) (af firming gra nt of custod y to grandpare nts); Dietrich v. Anderson, 185 Md. 103, 116, 43 A.2d 186 (1945) (denying father s petition for custody when child had been living with foster parents fo r five years); Pastore v. Sharp, 81 Md. App. 314, 322, 567 A.2d 509, 513 (1989 ), cert. denied, 319 Md. 304, 572 A.2d 182 (1990) (finding exceptional circumstances when child had been in custody of third party fo r two of h is five years, child had beco me a ttach ed to third party, and his future would lack stability and certainty if placed with the natural m other); Newkirk v. Newkirk, 73 Md. App. 588, 595, 535 A.2d 947, 950-51 (1988) (finding exceptional circumstances in awarding custody of teenage children to half-br other, ra ther than natural f ather). 9 (...continued) 754 (2005); see also Shu rupoff v. Vo ckroth, 372 Md. 639, 662, 814 A.2d 543, 557 (2003) ( [W]hen the dispute is between a parent and a third party, it is presumed that the child s best interest lies with parental custody. If there is a sufficient showing that the p arent is unfit, however, or that exceptional circumstances exist which would make parental custody detrimental to the child s b est interest, the pr esumption is rebutted and custody should not be given to the parent, for, in either situation, parental custody could not possibly be in the child s best interest. So long as the best interest of the child remains the definitive standard and there is any reasonab le alternative, it def ies both logic and com mon sen se to place a child in the custody of anyone, including a parent, wh en either that p erson is unf it to have custody or such action, because of exceptional circumstances, would be detrimental to the child s best interest. ) -11- Although the issue of same-sex adoption h as not been addressed by this Court, Maryland law does not appear to preclude same-sex couple adoptions. The plain language of Family Law § 5-3A-29 permits any adult to ado pt. 10 Md. Cod e (1984, 2006 R epl. Vol.), § 5-3A-29 of the Family Law Article. Thus, the statute does not appear to distinguish between the adoption of children by homosexuals or same-sex couples.11 Individuals in a 10 The statutory requirements for adoption do not specifically address sexual orientation. Section 5-3A-29 of the Fam ily Law Artic le of the Maryland Code sets forth the requireme nts as follow s: (a) Age Any adult may petition a court for an adoption under this subtitle. (b) Minimum period of placement A petitioner may petition for adoption of a child 18 0 days or more after a child placement agency places the child w ith the petitioner. (c) Marital status (1) If a petitioner under this section is married, the petitioner's spo use shall join in the petition unless the spouse: (i) is separated from the petitioner under a circumstance that gives the petitioner a ground for annulment or divorce; or (ii) is not competent to join in the petition. (2) If the marital status of a petitioner changes before entry of a final order, the petitioner shall ame nd th e pet ition acco rdingly. Md. Code (1984, 2006 Repl. Vol.), § 5-3A-29 of the Family Law Article. 11 Other states expressly prohibit adoptions by gays and lesbian s. See F LA. S TAT. A NN. § 63.042(3) (West 2005) ( No person eligible to adopt under this statute may adopt if that person is a homosexua l. ); M ISS. C ODE A NN. § 93-17-3(5) (2004 & Supp. 2006) ( Adoption by couples of the same gender is p rohibited. ); U TAH C ODE A NN. § 78-30-9(3)(a) (2002) ( The Legislature specifically finds that it is not in a child s best interest to be adopted by a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the law s of this state. ). -12- same-sex relationship may adopt, even though currently they are not allowed to marry under Maryland law, because there is no requirement that an adult seeking to adopt a child be married. Md. Code (1984, 2006 Repl. Vol.), § 5-349(b) (stating that a petition for adoption may not be denied solely becau se the petitioner is single or unmarr ied. ). In traditional adoptions and single-perso n adoption s, a child is ado pted by one o r two new parents and all legal relationships with prior parents are terminated. Maryland also recognizes second-parent adoptions, where a child with one parent is adopted by a second parent without severing the prior-existing parental relationship.12 Id. § 5-331(b)(2) (adoption without prior termination of parental rights). Maryland s trial courts have granted same-sex couples second -parent ado ptions and have note d that such a doptions a re in the best interests of the c hild. See In re Petition of D.L.G. & M.A.H., No. 95-179001/CAD, 2 MFLM Supp. 21 (1997) (Cir. Ct. Balt. City, June 27, 1996); Letter from Kathryn M. Rowe, Assistant Att y Gen., Office of the Att y Gen., Sharon Grosfeld, Delegate, Maryland Gen. Assemb. (June 9, 2000). Thus, sexual orientation is not a factor in adoption proceedin gs in Maryland, 12 See In re Petition of D.L.G. & M.A.H., No. 95-179001/CAD, 2 MFLM Supp.21 (1997) (Cir. Ct . Balt. C ity, June 27 , 1996) . According to www.thetaskforce.org, Maryland is one of 15 states where trial courts have granted second-parent adoptions. Second-Parent A d o p t i o n i n t h e U . S . ( 2 0 0 7 ) , http://www.thetaskforce.org/downloads/reports/issue_maps/2nd_parent_adoption_5_07_c olor.pdf. Only three states provide for second-parent adoptions by statute. See C ONN. G EN. S TAT. 45a-724 (3) (2005); V T. S TAT. A NN. tit. 15A, § 1-102(b) (2002); 2007 Colo. Sess. Laws 837. -13- and the children adopted by same-sex couples are treated under Maryland law in the same way as children adopted by a heterosexual or married couple. Maryland has acted to protect gays and lesbians in the area of criminal law. The General Assemb ly has amend ed Mar yland s hate crim e statutes to prohibit committing a crime upon a persons or property because of sexual orientat ion. See Md. Code (2002, 2006 Cum. Supp.), §§ 10-301 to 10-306 of the Criminal Law Article. Maryland has addre ssed the de criminalization of sexual ac ts for both h eterosexua l and homosexual couples. In Schoche t v. State, 320 Md. 714, 580 A.2d 17 6 (1990), this Court held that Maryland s statute criminalizing unnatural or perverted sexual practices did not encompass private, con sensual, no ncomm ercial, heterosexual activity between adults.13 See Md. Code (1957 , 1987 Repl. Vo l.), Art. 27, § 554. In 1998, a M aryland circuit court extended the Schochet ruling to hold that the unnatural or perverted sexual practices statute, § 554, did not encomp ass consen sual, nonco mmercia l, heterosexu al or homosexual activ ity. See Williams v. Glendening, No. 98036031/CL-1059, 1998 WL 965992 (Md. Cir. Ct. Oct. 15, 1998). It is worth noting that the defendant State of Maryland specifically argued that § 554 should be construed so as not to apply to private, consensual, noncommercial homosexual activity because any other interpretation gives rise to an equal 13 A jury had convicted Schochet of participating in the unnatural or perverted sexual practice of fella tio und er the M d. Cod e (1957 , 1987 R ep. Vo l.), Art. 27 § 554. Schochet v. State, 320 Md. 714, 718, 580 A.2d 176, 178 (1990 ). Schochet did not directly address homo sexual acts. See id. -14- protection question. Id. at *6. The C ircuit Court h eld that [i]t canno t be dou bted . . . that there would be an equal protection violation if acts, considered not criminal when committed by a heterosexual couple, could be prosecuted when practiced by a homosexual couple. There is simply no basis fo r the distin ction. 14 Id. at *7. Thus, four years prior to the U.S. Supreme Court s de cision in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), which invalidated Texas homosexual sodomy law, Maryland s courts and executive branch had already determined that private, consensual, noncommercial sex is noncriminal. 15 Maryland public polic y prohibits discriminatio n based o n sexual o rientation in p ublic accommodation, housing, and employment. See Anti-discrimination Act, 2001 Md. Laws Chap. 340. The Anti-discrimination Act of 2001 bans discrimination based on sexual orientation, defined as the identification of an individual as to male or female 14 Interestingly, although this Court has not opined on Williams, the Maryland Office of the Attorney General issued an Advice Letter to Delegate Sue Hecht on October 29, 1999 stating that, although Williams is a circuit court decisio n, the Cou rt of App eals wou ld likely reach the same conclusion. See Advic e Letter s, A DVICE AND L EGISLATION Q UARTER LY N EWS, Office of the Attorney General, October-December 1999, at 2 -3, available at http://www.oag.state.md.us/Opinions/news/99-4.htm. 15 The Am erican Civil Liberties Union reports that The Office of the Attorney General, in a consen t decree sign ed on Jan uary 19, 1999 , agreed to b oth not appea l Williams v. Glendening, No. 98036031/CL-1059, 1998 WL 965992 (Md. Cir. Ct. Oct. 15, 1998) and not enforce Maryland s sodomy statute. See In Historic Settlement with ACLU, Maryland Clears Last of its Sodomy Laws From the Books, (1991), http://aclu.org/lg bt/discrim/11 991prs19 990119 .html; see also Scott C alvert, Ruling on Gays Stirs Up Emotions, B ALT . S UN, June 2 8, 2003 , at 1A. -15- hom osex ualit y, heterosexual ity, or bisex uality. 16 Id. The Act states that it, may not be construed to authorize or validate a m arriage betw een two in dividuals of the same-sex and it may not be construed to require or prohibit an employer to offer health insurance benefits to unm arried d omestic partner s, but the Act as a w hole firmly establishes that Maryland s public p olicy proh ibits adv erse trea tment b ased on sexual orientat ion. Id. There are a multitud e of other s tate-wide law s and regu lations that pro hibit discrimination based on sexual orientation in a variety of categories. It is unlawful for social workers, judges, and the W ashington Suburba n Sanitary Co mmission , for exam ple, to discriminate based on sexual orien tation. Md . Code (19 81, 2005 Repl. Vo l, 2006 Cum. Supp.), § 19-311 of the Health and Occupations Article; Md. Rule 16-813 Canon 3A ( A judge shall perform the duties of judicial offic e . . . impartially, and w ithout having or manifesting bias or prejudice, including bias or prejudice based on ... sexual orientation.... ); Md. Code (1957, 2002 Repl. Vol), Art. 29, § 1-107. Maryland has regulated several other area s to f urther the goal of sexu al orienta tion equality. 17 16 Maryland is one of twenty-one jurisdictions that have passed sexual orientation nondiscrimination laws. See Thetas kforce .org, State Nondiscrimination Laws in the U .S. (2007), http://www .thetaskforc e.org/dow nloads/reports/issue_maps/non_discrimination_07_07_c olor.pdf. The other jurisdictions are: California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Washington, Wisconsin, Vermo nt. 17 See Grego ry Care, Something Old, Something New, Something Borrowed, Something Long O verdue: T he Evolu tion of a Sexual Orientation-Blind Legal System in Maryland and the Recognition of Same-Sex Marriage, 35 U. B ALT . L. R EV. 73 at n. 111 (contin ued...) -16- 17 (...continued) (2006) ( Md. Code Regs. 01.01.1995.19(I)(A)(11) (2004) (executive order to establish an equal employment opportunity program for state government to ensure personnel actions taken without re gard to ... [s]ex ual orientation ); id. 01.04.04.04(B)(7) (200 4) (requiring the board of directors of Residential Child Care Programs to ensure that such programs do not discriminate on the bas is of sexua l orientation); id. 05.04.11.18(A) (200 5) (prohibiting sexual orientation discriminatio n by sponso rs or contrac tors in the Special Housing Opportunities Program); id. 05.05.0 2.14(A) (2005) (prohibiting sexual orientation discrimination in the Multi-Fa mily Housing Revenu e Bond Financing Program ); id. 05.17.01.10(A) (2005) (prohibiting sexual orientation discrimination by sponsors in the Community Legacy Program); id. 07.03.03.07(I)(9)(b) (2004) (deeming quitting a job because of sexual orientation discrimination as good cause for purposes of th e Family Investment Prog ram); id. 07.03.08.02(B)(1)(h) (2004) (same in Emergency Assistance to Families with Children program); id. 07.03.16.08(D)(2) (2004) (same in Refugee Cash Assistance pro gram); id. 07.05.03.09(A)(2) (2004) (prohibiting private child placement agencies from denying an application because o f the applica nt's or the ado ptive child's sexual orie ntation); id. 07.05.03.15(C)(2) (2004) (prohibiting the delay or denial of the placement of an adoptive child because of the adoptive p arent or child 's sexual orien tation); id. 10.18.06.03(A)(6) (2004) (requiring Maryland AIDS Drug Assistance Program providers to provide services without regard to sexual orien tation); id. 10.26.03.03(D)(5) (2004) (prohibiting licensees of the Board of Acupuncture fro m discrimin ating on the basis of sex ual orientation ); id. 10.34.10.06(A)(1) (2004) (prohibiting pharmacists from discriminating on the basis of sexual orientation); id. 10.41.02.04(E) (2005) (prohibiting licensees of the Board of Examiners for Audiologists, Hearing Aid Dispensers, and Speech-Language Pathologists from discriminating on the basis of sex ual orientation ); id. 10.42.03.03(B)(5) (2005) (prohibiting licensed social wo rkers from discriminating on the b asis of sexu al orientation); id. 10.43.14.03(D)(5) (2005) (prohibiting lic ensed ch iropractors a nd registered chiropractic assistants of the Board of Chiropractic Exam iners from discriminating on the basis of sexual orientation); id. 10.43.18.03(D)(5) (2005) (prohibiting licensed massage therapists of the Board of Chiropractic Examiners from discriminatin g on the ba sis of sexua l orientation); id. 10.46.02.01(A)(1) (2005) (prohibiting licensees of the Board of Occupational Therapy Practice from disc riminating o n the basis o f sexual or ientation); id. 10.47.01.07(C) (2005) (prohibiting a program administered under the Alcohol and Drug Abuse Administration from discriminating on the bas is of sexua l orientation); id. 10.51.04.01(C)(2)(x) (2005) (prohibiting providers of Maryland PrimaryCare from discriminating on the basis of sexual orientation); id. 10.53.01.01(D)(5) (2005) (prohibiting an electrologist from discriminating on the basis of sexua l orientation); id. 10.58.03.05(A)(2)(b) (2005) (prohibiting a counselor (contin ued...) -17- Many Ma rylanders are similarly and further protected by county or municipal laws. Howard County, Prince Geo rge s Cou nty, B altim ore C ity, Montgomery County, and Anne Arundel County have ordinances that, in some form, prohibit sexual orientation discrimination. Howard County Code § 12.200 (2007) (prohibiting discrimination based on sexual orientation g enerally); Id. § 12.207 (p rohibiting ho using discrim ination); Id. § 12.208 (prohibiting employme nt discrimina tion); Id. § 12.209 (prohibiting discrimination by law enforcement personne l); Id. § 12.210 (prohibiting public accommodation discrimination ); Id. § 12.211 (prohibiting financing discriminatio n); Id. § 19.513 (prohibiting discriminatio n in use of open space area s ); Prince G eorge s C ounty Cod e § 2-210 (2003) (pro hibiting 17 (...continued) or therapist certified or licensed by the Board of Professional Counselors and Therapists from discriminating on the basis of sexual orien tation); id. 11.02.04.02(A) (2005) (mandating that departmental actions of the Department of Transportation not discriminate on the basis of sexual orientation); id. 11.07.06.13 (2005) (mandating that proposals submitted to the Transpo rtation Public -Private Partnership Program may not be subjected to discrimination on the basis of sexual orien tation); id. 11.15.29.02(E)(6) (2005) (permitting the rejection of motor vehicle reg istration plates which [c]o mmun icates a mes sage of an y kind about sexual orientation); id. 13A.0 1.04.03 (2005 ) (guara nteeing a safe, a dequate, and harassment-free educational environment for students without regard to sexual orientation in Maryland's public scho ols); id. 14.27.02.03(B) (2004) (calling for the implementation of an equal em ploym ent o pportunity pro gram in the Maryland Env ironmenta l Service to administer the human resources policies and provisions without discriminatin g on the ba sis of sexual orien tation); id. 14.29.04.09(C)(1) (2004) (prohibiting borrowers from the Maryland Heritage Areas Loan Program from discriminating on the basis of sexual orientation); id. 14.30.04.04(B)(3)(e)(i) (2004) (requiring election petitions of employe e organizations for the State Higher Education Labor Relations Board to certify that they accept members w ithout regard to sexual orientation); 27:23 Md. Reg. 2130 (Nov. 17, 2000) (executive order for commission to study sexual orientation discrimination in Maryland). ) -18- housing discriminatio n); Id. § 2-231.01 (prohibiting comme rcial real estate discrimination); Id.. § 5A-117 (proh ibiting cable s ervice discrim ination); Id. § 10A-122 (prohibiting discrimination in award of con tracts); Id. § 16-101 (prohibiting discrimination based on sexual orientation in the personnel system of the County); Baltimore City Code art. 4, § 3-1 (2000) (prohibiting employment discrim ination); Id. § 3-2 (prohibiting p ublic accommodations discrimination); Id. § 3-3 (prohib iting educa tion discrimin ation); Id. § 3-4 (prohibiting health and welfare a gency discrim ination); Id. § 3-5 (prohibiting housing discrimination); Id. art. 5, § 31-3 (providing for an annual review of licensed medical service providers to certify that they do not deny service on th e basis of se xual orienta tion); Id. art. 19, § 23-2 (providing for the tracking of hate crimes motivated by the victim s sexual orientation); Montgomery County Code § 27-1 (200 4); Id. § 8A-15 (prohibiting cable service discrimination); Id. § 27-11 (p rohibiting pu blic accom modation s discrimina tion); Id. § 27-12 (prohibiting housing d iscrimination ); Id. § 27-16 (p rohibiting co mmercia l real estate discrimination); Id. § 27-19 (p rohibiting em ployment dis crimination); Id. § 27-22 (prohibiting discrimination through intimidation); Id. app. D, § 6.19 (prohibiting sexual orientation discrimination by licensees granted licenses by the Board of Licensing Commission); Code of M ontgomery County Regulations § 21.02.18.04 (2004) (prohibiting discrimination by fire rescue p ersonnel); Id. § 27.26.01.01 (including crimes committed against a person bec ause of the ir sexual orien tation as ha te crimes ); Id. § 33.07.01.05 -19- (prohibiting employme nt discrimina tion in coun ty operations); Anne Arundel County Code § 10-8-111 (200 5) (prohibiting cable service discrim ination). Amongst these counties, Montgomery County is unique because it has extended certain employment benefits to the same-sex domestic partners of County employees rights previously only enjoyed by heterosexual couples through the civil contract of marriage.18 See Emp loyee Benefits E quity Act of 1 999 (the A ct ), Mon tgomery Co unty 18 Certain req uirements must be met for a couple to qualify as a domestic partnership. Section 33-22(c)(1) of the County Code provides: (c) Requirem ents for dom estic partnership. To establish a domestic partnership, the employee and the employee's partner must . . . (1) satisfy all of the following requirements: (A) b e the sam e sex . . . ; (B) share a close personal relationship and be responsible for each other's welfare; (C) have shared the same legal residence for at least 12 months; (D) be at least 18 years old; (E) have volu ntarily consente d to the relation ship, without fraud or duress; (F) not be married to, or in a domestic partnership with, any other person; (G) not be related by blood or affinity in a w ay that would disqualify them from marriage under State law if the employee and partner were . . . opposite sexes; (H) be legally competent to contract; and (I) share sufficient financial and legal obligations to satisfy subsec tion (d)( 2). Section (d) addresses the acceptable evidence o f domes tic partnership . Pursuant to subsection (d)(1), such evidence consists of either an affidavit signed by both the employee and the employee s partner under penalty of p erjury or an of ficial copy of th e domes tic partner registration, an d under su bsection (d )(2), evidenc e that the em ployee and p artner (contin ued...) -20- Code § 33-22 (2004) (providing certain insurance and financial benefits to same-sex domestic partnership s); Id. § 52-24 (e xtending ta x exemp tion for prope rty transfers to same-sex couple s). The Act, generally, extends benefits, such as health, leave, and survivor benefits comparable to those afforded the spouses of County employees, to th e domes tic partners of County employees, including those benefits available under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the federal Family and Medical Leave Act, and other federal laws that apply to County employment benefits. Id. at § 33-22(b). This Court upheld the constitutionality of the M ontgom ery Cou nty Act. See Tyma v. Montgomery County , 369 Md. 497, 801 A.2d 148 (2002) (holding that a home rule county does not exceed its local lawmaking authority or otherwise undermine State and federal law by provid ing ben efits to th e dom estic par tners of its empl oyees). We held that the Ac t did not implicate M aryland s marriag e laws. Id. at 514-15, 801 A.2d at 158. Instead, we determined that the County had demonstrated a valid public purpose for extending employment benefits, na mely recruit[in g] and retain [ing] quali fied employees a nd . . . promot[ing] employee loyalty. Id. at 512, 8 01 A.2 d at 157 . Thus, under this State s home rule authority, Mo ntgomery C ounty was with in its right to prov ide for the h ealth and welfare 18 (...continued) share certain of several enu merate d items, s uch as a joint leas e, see § 33-22(d)(2)(A), or check ing acc ount, see § 33-22(d)(2)(C), that may document a domestic partnership. -21- of the County not already provided for by the public general law. Md. Code (1957, 1985 Repl. Vol., 2001 C um. Supp.), Art. 25A , § 5(S). B. Limitations Despite Maryland s recent statutory, regulatory, an d case law that has evo lved to equalize some legal protections of heterosexuals and homosexuals, same-se x couples are denied the protection of hundreds of laws simply because they are not yet entitled to the rights and benefits flowing from marriage. Appellees have directed us to ov er 425 statutory protections that are afford ed to marrie d couples and, as a resu lt, to their children un der state law, protections that appellees are denied.19 See E QUALITY M ARYLAND., M ARRIAGE INEQUALITY IN THE S TATE OF M ARYLAND (2006), http://www.equalitymaryland.org/ marriage/ marriage_ inequality_in_ maryland.pdf. I briefly examine the extent to which these 19 As the m ajority notes, there a re literally over a thousand federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. See A.B.A . S EC. OF F AM. L., A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unio ns, and Domestic Partnerships, 38 F AM. L. Q. 339, 366 n. 98 (citing U.S. G EN. A CCOUNTING O FFICE, GAO Rep. No. 04-4353R, Defense of Marriage Act: Update to Prior R eport (2 004), available a t http://www.gao.gov/new.items/d04353r.pdf). The majority notes correctly, in footnote 6 of their opinion, that [a]lthough disposition of the present case would have no effect on Appellees eligibility for those federal benefits under the Federal Defense of Marriage Act, it illustrates the current regulatory landscape regarding same-s ex ma rriage a nd the m arital ben efits fro m wh ich Ap pellees a re exclu ded. -22- laws continue to restrict comm itted same-sex couples from enjoying the full benefits and privileges available through marriage, unlike similarly situated heterosexual couples.20 Health related benefits are among the rights afforded to married couples but denied to committed same-sex c ouples. A spouse is au tomatically entitled to act as a surr ogate regarding health care decisions necessary for an incapacitated spouse absent the existence of an appointed guardian. Md. Code (1982, 2005 Repl. Vol., 2006 Cum. Supp.), § 5-605 of the Health -Gene ral Artic le. A sp ouse m ay share a room in health c are fac ility. Id. § 19344(h). A spouse is also permitted to secure health insurance for the other spouse. Md. Code (1997, 2003 Repl. Vol., 2006 Cum. Supp.), § 12-202 of the Insurance Article. Same-sex couples do not enjoy these automatic protections. Married individuals benefit also from certain default provisions associated with the death of a spouse. A surviving spouse automatically has the right to arrange for the final disposition of the body of a decedent spouse in absence of written instructions. Md. Code (1982, 2005 Repl. Vol., 2006 Cum. Supp.), § 5-509 of the Health-General Article. A spouse is exempt from inheritance tax on benefits plans or real property passed on by the deced ent. Md. Code (1988, 2004 Repl. Vol., 2006 Cum. Supp.), § 7-203 of the Tax General Article. A spouse is en titled to a fam ily allowance o f $5,000, w hich is exem pt from an d has priority over all claims aga inst the estate. M d. Code (1 974, 200 1 Repl. Vol., 20 06 Cu m. Sup p.), § 20 It is not practical to fully discuss here the privileges that are provided to married individuals and denied to committed same-sex couples. For a full description see E QUALITY M ARYLAND., M ARRIAGE INEQUALITY IN THE S TATE OF M ARYLAND (2006), http:// www.equalitymaryland.org/marriage/ marriage_inequality_in_ maryland.pdf. -23- 3-201 of the Estates and Trusts Article. A spouse may bring a cause of action for the wrongful death of a spouse. Md. Code (1974, 2006 Repl. Vol.), § 3-904 of the Courts and Judicial Proceedings Article. Furthermore, health insurance prov iders are requ ired to continue coverage for surviv ing spouses. Md. Code (1997, 2006 Repl. Vol., 2006 Cum. Supp.), § 15-407 of the Insurance Article. Same-sex couples must incur the expense of attemp ting to g ain and to prote ct these r ights thr ough w ills and o ther lega l instrum ents. Beyond the realm of health and death benefits, married couples enjoy the right to freely transfer joint ownership in property to a spouse without having to pay transfer or recordation tax. Md. C ode (198 6, 2001 R epl. Vol., 2006 Cum. Supp.), §§ 12-108, 13-403 of the Tax - Prop erty A rticle . Ma rried couples may o wn p rope rty as tenan ts by th e ent irety, Md. Code (1974 , 2003 Repl. Vo l., 2006 Cum. Sup p.), § 4-204 o f the Rea l Property Article, which can, for example, protect the property from forfeiture in certain circumstances. Md. Code (2001, 2001 Repl. Vol., 2006 Cum. Supp.), § 12-103 of the Criminal Proced ure Article. In judicial proceeding s, married ind ividuals ma y not be com pelled to testify ag ainst their spouse or to disclose confidential commu nications. M d. Code (1 974, 200 6 Repl. Vol.), § 9105 of the Courts and Judicial Proceedings Artic le. One spo use cann ot be com pelled to testify against a defendant spouse as an adverse w itness unless th e charge in volves ch ild abuse or assau lt in wh ich the s pouse is a victim . Id. § 9-106. In the area of education, dependent children and spouses of armed forces members further benefit under Maryland law -24- because they are exempt from paying non-resident tuition at a public institution of higher educa tion. M d. Cod e (1978 , 2006 R epl. Vo l.), § 15-1 06.4 of the Ed ucation Article. The statutes determining rela tionships be tween ch ild and pare nt are particu larly relevant. Maryland C ode (197 4, 2001 R epl. Vol., 200 6 Cum . Supp.), § 1-2 06 of the T rusts and Estates Article states as follows: (a) A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in § 1-207,[21] a child born at any time after his parents have participated in a marriage ceremo ny with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents. (b) A child co nceived b y artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presum ed. Although a child conceived by artificial insem ination of a married w oman ca n automa tically be the legitimate child of both individuals in the marriage, a same-sex couple must go through the process of second-parent adoption, which necessarily involves a period of some delay. It cannot be argued that same-sex couples are not denied significant b enefits accorded to heterosexual couples. It is clear that there are significant d ifferences in the bene fits provided to married couples and same-sex couples in the areas of taxation, business 21 Md. C ode (19 74, 2001 Repl. Vol., 2006 Cum. Supp.), § 1-207 of the Estates and Trusts Article states that an adopted child shall be treated as a natural child of his adopting parent o r paren ts. -25- regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding spousal health care, insurance, labor and emp loyment, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements. Significantly, the inequities directed to individuals in same-sex couples have an im pact on the ir children. C hildren in same-sex couple households are treated differently because their care providers are denied certain benefits and rights despite comparable needs to children of married couples. Thus, under Marylan d s curr ent law s, committed same-sex couples and their children are not afford ed the b enefits and pro tections availab le to hete rosexu al hous eholds . 2. Analysis of State s Interes ts As the m ajority notes, the State as serts two ratio nales in sup port of the s tatute governing marriag e, Fam ily Law § 2-201 . First, the State argues that, Maryland law preserving the historic definition of m arriage to inc lude a ma n and a w oman is em inently reasonab le and unquestionably bears a fair and substantial relation to the State s legitimate interest in maintaining and promoting the traditional institution of marriag e. This ration ale addresses solely the definition of marriage, as opposed to the rights and benefits that flow from marriage. Because I write separately to address the rights and benefits, I do not address this proffer ed State intere st. The State asserts also that, encouraging the definition of marriage to include a man and woman is rationally related to a legitimate government interest in providing for the -26- offspring that may result from heterosexual intimacy. Again, my focus is on whether the State may rationally deny same-sex couples the full rights and benefits of marriage in order to foster its asserted interest in a stable environment for procreation and child rearing.22 Under our equal projection jurisprudence, a law will survive ratio nal b asis s crutiny, generall y, if the distinction it makes rationally furthers a legitimate state purpose. As the majority acknowledges, the classification established in Family Law § 2-2 01 is both overinclusive and under-inclusive. Th e statute is over-inclusive because c hildren may be born into same-sex relationships through alternative methods of co ncep tion, includin g sur roga cy, artificial insemination, in vitro fertilization, and adoption. Co nversely, the statute is underinclusive because not all opposite-sex couples choose to procreate, not all opposite-sex couples are able to have children, and many opposite-sex couples utilize the same alternative methods of conception as same-sex couples.23 We hav e recogniz ed, how ever, that a classification subject to rational basis review having some reasonable basis need not be made with mathematical nicety and may result in some inequality. Whiting-Turner, 304 Md. at 352, 499 A.2d at 185 (emphasis added); but see Waldron, 289 Md. at 713-14, 426 A.2d at 946 ( A loose fit between the legislative ends and the means chosen to accomplish those 22 There is no doubt that the State has a legitimate interest in the welfare of children. The que stion is whe ther Family L aw § 2-2 01 rationally fu rthers this interes t. 23 As noted in Baker, 744 A.2d at 88 1, it is undisputed that most of those who utilize nontraditional means o f concep tion are infer tile marrie d couples, and that many assistedreproductive techniques involve only one of the married partner s genetic material, the other being supplied by a third party through sperm, egg, or embryo donation. (citations omitted). -27- goals, which leaves a significant measure of similarly situated persons unaffected by the enac tmen t, or c onversely, which includes individuals within the statute s purview who are not afflicted w ith the evil the sta tute seeks to rem edy, is intolerable. ) . The que stion, in this case, is whether the State has a reasonable basis for its classification in Family Law § 2-201, particularly in light of the extensive inequality that resu lts from the c lassification an d its impacts on vital interests. See Waldron, 289 Md. at 704, 426 A.2d at 940 (noting that where a legislative enactment invade s protected rights to life, liberty, prope rty or other interests secured by the fundamental doctrines of our jurisprudence, there is reason to be especially vigilant in the exercise of rational basis rev iew.) Maryland public policy supports procreation that occurs in both opposite-sex and same-sex couple environments. Maryland appears to grant adoptions to both homosexual and heterosexual couples, and adop tion agencies may not den y an individual s application to be an adoptive parent b ecause . . . [o]f the applica nt s . . . sex ual orien tation. COMAR 7.05.03.09(A); see also COMAR 7.05.03.15(C)(2). Maryland courts also grant secondparent adoptions to same-se x partners and the Department of Health & Mental Hygiene issues birth certificates recognizing same-sex partners as co-parents. Furthermore, Maryland courts must disregard the sexual orientation of each parent in child custody and visitation disputes. See Bosw ell, 352 Md. 204, 721 A.2d 662. These laws do not demonstrate that Maryland has an interest in favoring heterosexu al parents ov er homo sexual cou ples with -28- regard to procreation and child rearing. Indeed, the State specifically treats homosexual couples an d heterosex ual couple s similarly in this con text. Despite the fact that Maryland provides some rights and benefits in the area of procreation to same-sex couples, the State asserts it has a rational basis for excluding samesex couples from the full benef its of m arriage . This is n ot a ratio nal asse rtion. There is no doubt that the State has a legitimate interest in promoting procreation and child rearing, but it cannot rationally further th is interest by only gran ting the full righ ts of marriag e to opposite-sex couples when it already provides some legal protections regarding procreation and child rearing to same-sex couples.24 Maryland s equal protection jurisprudence requires that a legislative distinction reasonably relate to the achiev ement of a legitimate S tate interest. See Murphy v. Edmonds, 325 Md. 342, 355, 601 A.2d 102, 108 (2002) (noting that a court will not overturn the classification unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [governmental] actions were irrational. ) (quotations omitted; internal citations omitted). Here, where Maryland has granted some rights regarding procreation and child-rearing to same-sex couples, it can not rationally claim that its interest 24 Whether a child was conceived through accidental heterosexual sex or entered a family after planning by a different or a same-sex couple does not alter the State s interest in encourag ing that eve ry child be raised in the most s table setting possible. There is no rational basis for concluding that excluding same-sex couples from the rights of marriage will influence heterosexual couples to have procreative sexual relations only within marriage or to pu rsue m arriage after pr ocreatio n. -29- in providing a stable environment for procreation and child rearing is then actually furthered by the exclusion of same-sex couples from the equal rights and benefits of marriage.25 What is striking, in fact, is that the State s proffered interest p roviding a s table environment for procre ation and c hild rearing is actually compromised by denying samesex familie s the be nefits a nd righ ts that flo w from marriag e. That is, there is not a sufficient link between the State s pro ffered leg itimate interest and the means utilized by the State to further that inter est. The State has determined arbitrarily which benefits may be extended to same-sex couples and the ine quality that results is more than merely some inequality. For example, there is no rational basis why a surviving spouse of a state employee killed in the performance of his or her duties should be denied payment of a death benefit if the individual is part of a same-s ex cou ple. Md. Code (1994, 2004 Repl. Vol., 2006 Cum. Supp.), § 10-404 25 Maryland s equal protection jurisprudence requires that the legislative distinction further a legitimate state interes t. Chief Ju dge Judith Kaye, writing for the disse nt in Hernandez v. Robles, 7 N.Y.3d 338, 391, 855 N.E.2d 1, 30 (2006), explained as follows: Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discrim inatory law itself. Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In o ther word s, it is not enough that the State have a leg itimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State s interests in recognizing or supporting opposite-se x marriage s are rationally furthered by the ex clusion . (citation omitted ). -30- of the State Personnel and Pensions Article. A surviving spouse, regardless of sexual orientation, and his or her child or children would benefit from the additional financial security provided from a de ath benef it. It is rational to presu me that suc h a financ ial benefit would contribute to a stable environment for procreation and child rearing, regardless of the couples sexual orientation. Simila rly, there is no rational basis for requiring a group life insurance policy to cover a spouse and dependent children in a heterosexual family, when children of same- sex coup les would benefit just as much from life insurance. Md. Code (1997, 2006 Repl. Vol., 2006 Cum. Supp.), § 17-209 of the Insurance Article. This disparate treatment of committed same-sex couples, exhibited in a multitude of Maryland laws discussed supra, directly disadvantages the children of same-sex couples, and there is no rational basis to allow suc h disadva ntages w hen the Sta te s proffer ed interest is to promo te a stable environment for procreation and child rearing. Each child raised in a househ old headed by a same-se x couple in Maryland needs and is entitled to the same legal protections as a child of married parents. I agree with the Supreme Court of Vermont, which recognized both the multitude and significance of the benefits and protections incident to a marriage. The Vermont Supreme Court stated as follows: While other statutes c ould be ad ded to this list, the p oint is clear. The legal benefits and protections flowing from a marriage licen se are of s uch sign ifica nce t hat a ny statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned. Considered in light -31- of the extreme logical disjunction between the classification and the stated purposes of the law protecting children and furthering the link between procreation and child rearing the exclusion falls substantially short of this standard. The laudable governmental goal of promoting a commitment between married co uples to pro mote the se curity of their children and the community as a whole p rovides no reasonab le basis for denying th e legal bene fits and protections of marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex cou nterparts. Promoting a link between procreation and childre aring similarly fails to suppo rt the exc lusion. Baker, 744 A.2d at 884. The classification in Family Law § 2-201 is significantly over- and under-inclusive, and creates mo re than me rely an imperf ect fit between means and ends with regard to the disbursement of the rights and bene fits of marriage. Den ying same-se x couples the rights and benefits appurtenant to marriage is not a means to legitimately meet the State s interest in further ing pro creation and ch ild-rearin g. Moreover, the classification creates more than merely some inequality it creates a grossly unequal distribution of benefits and privileges to two sim ilarly situated classes of peo ple. The State has failed to provide a legitimate State interest in denying the protections and respo nsibilities of m arriage that is rationally furthered by the clas sificatio n in Fam ily Law § 2-201 . As disc ussed, supra, this State has dem onstrated tha t it is on a path to providing full equality regardless of sexual orientation, and it is unrea sonable and irrational for the State to arbitrarily grant to same-sex couples certain rights and benefits inciden t to marriage considering the full range of protections and responsibilities that come with marriage. In short, while there may be a -32- legitimate basis for retaining the definition of marriage as one between a man and a woman, there is no legitim ate basis for denying committed same-sex couples the benefits and privileges of marriage. The reality of Maryland to day is that heterosexual couples are not the only people that participate in procreation and child rearing. Maryland s laws recognize and pro mote this reali ty, and each child raised in a househ old heade d by a comm itted same-se x couple in Maryland needs and is entitled to the same legal protections as a child of heterosexual married parents. Thus, in order for the State to rationally further procreation and child rearing, the benefits and rights incident to m arriage mu st be equally av ailable to both comm itted sam e-sex a nd com mitted o pposite -sex co uples. C. Remedy The State has not demonstrated a rational relationship between denying committed same-sex couples the benefits and privileges give n to their ma rried heteros exual cou nterparts and the legitimate government purpose of promoting procreation and child-rearing. Under the equal protection guarantee of Article 24 of the Maryland D eclaration of Rights, the S tate must provide committed same-sex couples, on equal terms, the same rights, benefits, and respon sibilities e njoyed b y married heteros exual c ouples . It is up to the G eneral As sembly to meet the equal protection guarantee of Article 24 of the Maryland Declaration of Rights. It is not this Court s role to craft a constitutional -33- statutory scheme, but the General Assembly could satisfy the constitutional mandate by creating a separate statutory structure similar to the civ il union or do mestic partn ership laws present in our sister jurisdictions.26 Each state s statuto ry scheme differs in the rights and benefits granted to same-sex couples,27 but the schemes are similar in that they afford rights to committed same-sex couples on equ al terms with th eir heter osexu al coun terparts. The New Je rsey experienc e is important and instructive. On October 25, 2006, the Supreme Court of New Jersey decided Lewis v. Harris, 908 A.2d 196. The Court held that there is no t a fundam ental right to marriage under the New Jersey Constitution, but that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex coupes must be afforded on e qual terms th e same righ ts and ben efits enjoyed b y married opp osite-sex couple s. Id. at 220-21. The Supreme Court of New Jersey stated that the legislature had 26 The focus of this dissent is not on the definition of marriage, but it should be noted that the General Assembly could also act to remedy the current equal protection violations by modifying the definition of marriage in Family Law § 2-201 to include committed samesex couple s. Alternative ly, the Legislature could elect to title all partnerships between two people, whether heterosexual or homosexual, as civil unions, domestic partnerships, etc. 27 Conne cticut, New Jersey, New Hampshire and Vermont, for example, have passed legislation that allow s or auth orizes c ivil unio ns for s ame-se x coup les. See C ONN. G EN. S TAT. §§ 46b-38aa to -38pp (2006 Supp.); 2007-2 N.H. Rev. Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis); N.J. S TAT. A NN.§ 26:8A -1 to A-12 (West 20 07); V T. S TAT. A NN. tit. 15, §§ 1201-1207 (2002). California, the District of Columbia, Hawaii, Maine, Oregon, and Washington enacted legislation providing for the registrati on of d omestic partner ships. C AL. F AMILY C ODE, §§ 297 -299.6 (West 2004); D.C. C ODE § 32-701 et seq. (2001 ); H AW. R EV. S TAT. 572C-1 et seq. (2006 Supp.); M E. R EV. S TAT. A NN. tit. 22, § 2710 (2003); 2007 O r. Laws 168; 2007 Wash. Sess. Laws 616-37. -34- 180 days to either am end the ex isting marriag e statutes to inc lude same -sex coup les, or it could create a separate and parallel statutory structure, such as a civil union, affording samesex couples all of the same rights and responsibilities as heterosexual married couples. Id. New Jersey s legislature acted and chose to establish civil unions by amending the State s current marriage statute to in clude s ame-se x coup les. See 2006 N.J. Law s 975. In doing so, the legislature stated that it was continuing its longstanding history of insuring equality under the laws for all New Jersey citizens by providing same-sex couples with the same rights and benefits as heterosexual couples who choose to marry. N.J. S TAT. A NN. § 37:1-28(f) (West 20 07). The New Jersey Legislature set forth three requirements that two persons seeking to establish a civil union must meet: (1) not be a party to ano ther civil unio n, domes tic partnership or marriage in New Jersey; (2) be of the same sex; and (3) be at least 18 years of age, with certain exceptions.28 Id. § 37:1-30. Regarding benefits and rights, the New Jersey legislature stated that [c]ivil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage. Id. § 37:1-31(a). The statute specifically note s, for exam ple, that, [t]he rig hts of civil union c ouples w ith respect to a child of whom either becomes the parent during the 28 Certain marriages or civil unions are prohibited outright, such as those between relatives . See N.J. S TAT. A NN. § 37:1-1 (West 200 7). -35- term of the civil union, shall be the same as those of a marrie d couple w ith respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriag e. Id. § 37:1-31(e). Moreover, the statute enumerates a list of legal benefits, protections and responsibilities of spouses [that] shall apply in like manner to civil union couples, but shall not b e construed to be an exclusive list of such benefits, protections and respon sibilities. 2 9 Id. § 37:1-32 . Finally, the 29 The non-exclusive list of legal benefits, protections and responsibilities stated in the New Jersey Civil Union statute, N.J. S TAT . A NN. § 37:1-32 (West 2007), includes the following : a. laws relating to title, tenure, descent and distribution, intestate succession, survivorship, or other incidents of the acquisition, ownersh ip or transfer, inter vivos or at death, of real or personal p roperty, includin g but not limited to eligib ility to hold real a nd perso nal p rope rty as tenan ts by th e ent irety; b. causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, or other torts or actions under contracts reciting, related to, or dependent upon spousal status; c. probate law and procedure, including n onprobate transfer; d. adoption law and procedures; e. laws relating to insurance, health and pension benefits; f. domestic violence protections pursuant to the Prevention of Dome stic Violence Act of 1991, P.L.1991, c. 261 (2C:25-17 et seq.) and domestic violence programs; g. prohibitions against discrimination based upon marital status; h. victim's compensation benefits, including but not limited to compensation to spouse, children and relatives of homicide victims; i. workers compensation benefits pursuant to chapter 15 of Title 34 of the Re vised Statute s, including b ut not limited to survivors' benefits and payment of back wages; (contin ued...) -36- 29 (...continued) j. laws relating to emergency and nonem ergency medical care and treatment, hospital visitation and notification, a nd any rights guaranteed to a hospital patient pursuant to P.L.1989, c. 170 (C.26:2 H-12 .7 et seq.) or a nursing home resident pursuant to P.L.1976, c. 120 (C .30:13-1 et seq.); k. advance directives fo r health care a nd design ation as a he alth care representative pursuant to P.L.1991, c. 201 (C.26:2H-53 et seq.); l. family lea ve ben efits pu rsuant to P.L.19 89, c. 261 (C.34:11B-1 et seq .); m. public assista nce bene fits under S tate law, inclu ding, but not limited to: Work First New Jersey benefits pursuant to P.L.1997, c. 38 (C.44 :10-55 et se q.); medical a ssistance pu rsuant to P.L.1968, c. 413 (C.3 0:4D-1 e t seq.); Supp lemental S ecurity Income pursuant to P.L.1973, c. 256 (C.44:7-85 et seq.); pharmaceutical assistance p ursuant to P.L.1975, c. 194 (C.30:4 D-20 et seq.) and P.L.2001, c. 96 (C.30:4D-4 3 et seq.); hearing aid assistance p ursuant to P.L.1987, c. 298 (C.30:4D-36 et seq.); and utility ben efits pursua nt to P.L.1979, c. 197 (C.48:2-29.15 et seq.) a nd P.L .1981, c. 210 (C.48:2-29.30 et seq.); n. laws relating to taxes imposed by the State or a municipa lity including but not limited to homestead rebate tax allowances, tax deductions based on marital status or exemptions from realty transfer tax based on marital status; o. laws relating to immunity from compelled testimony and the marital communication privilege; p. the home ownership rights of a surviving spouse; q. the right of a spouse to a surname change without petitioning the court; r. laws relating to the making of, revoking and objecting to anatomical gifts pursuant to P.L.1969, c. 161 (C.26:6-57 et seq.); s. State pay for military service; t. application for absentee ballots; u. legal requirements for assignment of wages; and v. laws related to tuition assistance for higher education for (contin ued...) -37- legislature established a Civil Union Review Commission, which it charged with, amongst other things, studying the implementation of the law, evaluating the effect on same-sex couples, their children and other family members of being provided civil unions rather than marriage, and reporting its findings to the Legislature and Governor on a semi-annual basis. Id. § 37:1-36. Under Md. Rule 8-606, the disposition of an appeal is evidenced by the issuance of a mandate by the Clerk of Court in conformance with the opinion, not by the opinion itself. Gen erall y, the mandate the judgment of the Court is issued 30 days after the filing of the opinion, but Rule 8-606(b) permits the Court to advance or delay the issuance of the mandate and we have, on occasion, exercised this discre tion. See Massey v. Dept. of Corrections, 389 Md. 49 6, 886 A.2d 58 5 (2005) (Clerk of Court direc ted to withh old mandate for 120 days in order to give the Secretary of Public Safety and Correctional Servic es time to comp ly with the Adm inistrativ e Proce dure A ct). Similar to the situation in New Jersey prior to passage of that State s civil union law, there is an unconstitutional disparity of rights, benefits, and responsibilities between committe d same-sex couples and heterosexual couples in Maryland. The constitutional relief to which appellants are entitled would necessarily require the cooperation of the General Ass emb ly. As a result, such relief could not be immediate. The General Assembly should, 29 (...continued) surviving spouses or children. -38- however, work to create a scheme that safeguards the individual liberties protected by the Maryland Decla ration o f Righ ts. In this c ase, I would retain jurisdiction in this Court and instruct the Clerk to withhold the mand ate for 180 days to give the General Assembly time to consider and enact legislation consistent with the views expressed in this dissenting opinion. In my view, the General Assembly should either amend the marriage statutes or enact an appropriate statutory scheme to provide appellees with their full rights under Maryland s equal protec tion guarantee in a timely mann er. Chief Judge Bell authorizes me to state that he agrees with, and joins this dissenting opinion to the extent that it endorses and advocates that committed same-sex coup les are entitled to the myriad statutory benefits that are associated with and flow from marriage. He does not jo in the part of this opinion that accepts the majority s analysis and determination that rational basis review is the appropriate standard to be applied in this case. See Bell, C .J., dissenting opinion. -39- IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2006 FRAN K CO NAW AY, et al. v. GITA NJAL I DEA NE, et al. Bell, C.J. Raker *Wilner *Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Battaglia , J., which Bell, C.J., joins. Filed: September 18, 2007 *Wilner and Cathell, JJ., now retired, participated in the hearing and conference of this case w hile active m embers o f this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Battaglia, J., dissenting. I respectfully dissent. In this case, the m ajority erroneously relies on the opinion of Chief Judge Robert C. Murphy in Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 501 A.2d 817 (1985) (Burning Tree I),1 as authority to hold that Section 2-201 of the Family Law Article, Maryland Code (1984, 2006 Repl. Vol.) ( Only a marriage between a man and a woman is valid in this State. ), does not implicate Article 46 of the Maryland Declaration of Rights.2 Despite the fact that Ch ief Judge Mu rphy s opinion did not reflect the view of a majority of this Co urt as he so recognized, Burning Tree I, 305 Md. at 80, 501 A.2d at 830, the majority in the instant case adopts Chief Judge Murphy s reasoning to hold that Section 2-201 benefits and burdens both men and women equally and therefore, escapes strict scrutiny analysis. Conaway v. Deane, No. 44, Sept. Term 20 06, slip op. at 22-32. Contrary to the majority s co nclusion, this Court has declined to restrict the scope of Article 46 through the use of the equal application approach.3 In State v. Burning Tree Club, Inc., 1 There have been three Burning Tree cases decided b y this Court: State ex rel. Attorney Gen. v. Burning Tree Club, Inc., 301 Md. 9, 481 A.2d 78 5 (1984) (Burning Tree); Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 501 A.2d 817 (1985) (Burning Tree I); and State v. Burning Tree Club, Inc., 315 Md. 254, 554 A.2d 366 (1989) (Burning Tree II ). Both the opinion of the trial court and the majority opinion of this Court address only the second and third cases and adopt the designations indicated. In order to prev ent con fusion , I have adopted the same meth odology. 2 Article 46 of the M aryland Dec laration of R ights also is known as the Equal Rights Ame ndment ( ER A ). 3 See Giffin v. Crane, 351 Md. 133, 149 , 716 A.2d 102 9, 1037 (1998); Burning Tree I, 305 Md. at 70, 501 A.2d at 825 (opin ion of M urphy, C.J.). Ac cording to the equal application approach, the ERA generally invalidates governmental action that imposes a burden on, or grants a ben efit to, one sex but not the other one. Giffin, 351 Md. at 149, (contin ued...) 315 Md. 254, 293 , 554 A.2d 366 , 386 (1989) (Burning Tree II ), this Court h eld that the enactment of legislation which on its face draws classifications based on sex is state action sufficient to invoke the E.R.A., citing the opinions of a majority of the Court in Burning Tree I. Although many of our prior cases implicated government action directly imposing a burden o r conferring a benefit en tirely upon either males or females, Burning Tree I, 305 Md. at 95, 501 A.2d at 838 (opinion of Eldridge, J.), it would be erroneous, just because of the factual situations heretofore presented, f or this Cou rt to hold that th e ERA is so narrow ly limited, rather than to look to its language and purpose, which mandate strict scrutiny analysis of Section 2-201. See, e.g., Giffin v. Crane, 351 Md. 133, 148-49, 155, 716 A.2d 1029, 1037, 1040 (1998) (applying strict scrutiny to invalidate consideration of whether a parent and child are of the same or opposite sex as a factor in c hild custody determinations); Rand v. Rand, 280 Md. 508, 511-12, 516, 374 A.2d 900, 902-03, 905 (1977) (applying a standard beyond strict scrutiny4 to require child support obligations be allocated without regard for the sex of th e parents). I. Determining the Applicable Standard of Review 3 (...continued) 716 A.2d at 1037. Under this approach, without a denial or abridgment of equal rights under the law as betw een m en and wom en, the ERA is not im plicated . Burning Tree I, 305 Md. at 70, 501 A.2d at 825. 4 The Rand Court cited Darrin v. G ould, 540 P.2d 882, 893 (Wash. 1975), for the proposition that the ERA itself was the compelling state interest in a strict scrutiny analysis under the W ashington State version of the E RA. See also Burning Tree I, 305 Md. at 97, 501 A.2d a t 839, where Judge John C. Eldridge pointed out that the Rand standard may be stricter . . . than the strict scrutiny test. -2- A. Burning Tree I 1. The Primary C ase In Burning Tree I, Stewart Bainum , in his role as taxpayer, 5 and Barbara Ren schler, a taxpayer and a wom an seeking mem bership in the Burning Tree Club, a private co untry club that excluded women, sued the State, the Department of Assessments and Taxation, and the Club, seeking a declaratory judgment that the primary purpose exception found in Section 19 (e)(4)(i) of Article 81, Ma ryland Code (1957, 19 80 Repl. Vol.), 6 violated the 5 At the time the s uit was orig inally filed, Stewart Bainum was also a Maryland State Senator fr om M ontgom ery County; however, this fact bore no relationsh ip to his standing to bring su it. Burning Tree II, 315 Md. at 260 n.2, 291, 554 A.2d at 369 n.2, 385; Burning Tree I, 305 Md. at 59-60, 501 A.2d at 820. 6 Section 19 (e) of A rticle 81, Maryland Code (1957, 1980 Repl. Vol.), provided in relevant part (emphasis ad ded): (e) Country clubs. (1) The State Department of Asses sments and Taxation shall have the power to make uniform a greemen ts pursuant to this subsection relative to the assessment and taxation of lands activ ely devoted to use as a country club as defined herein. (2) Pursuant to such agreement or any extention thereof with the State Departm ent of As sessments and Tax ation, land w hich is actively devoted to use as a co untry club as d efined he rein shall be assessed on the basis of such use for the period of time provided for in the ag reement o r any extension thereof an d shall not be assessed as if subdivided or used for any other purpose, except in accordance with subparagraph (3) hereof. (3) Whenever any land assessed according to subparagraph (2) hereof has an assessable value greater than its assessable value as land devoted to use as a country club, such land shall also be assessed on the basis of such greater value, provided how ever, that no taxes shall be due a nd payable upon suc h greater (contin ued...) -3- ERA. Burning Tree I, 305 Md. at 59-60, 501 A.2d at 820. The Plaintiffs also sought to enjoin the State from extending preferentia l tax treatmen t to the Club , and soug ht a mand ate that the Club entertain applications for female membership.7 Id. at 60, 501 A.2d at 820. 6 (...continued) assessment except pursuant to the provisions of subparagraph (7) hereof. (4)(i) . . . In order to qualify under this section, the club may not practice or allow to b e practiced a ny form of d iscrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons. The determination as to whether or not any club practices discrimination shall be made by the office of the Attorney General after affording a hearing to the club. The provisions of this section with respect to discrimination in sex do not app ly to any club whose facilities are operated with the primary purpose, as determined by the Attorney G eneral, to serv e or benef it members of a particular sex, nor to the clubs which exclude certain sexes only on certain days and at certain times. *** (7) If, prior to the e xpiration of the agreem ent, or any extension thereof, part or all of the property is conveyed to a new own er, or said property ceases to b e used a s, or fails to qualif y as, a country club, as defined herein, then at such time as part or all of the property is conveyed, or at such tim e as said pro perty ceases to be used as, or fails to qualify as, a country club, whichever is the earlier date, the unpaid taxes, calculated at the tax rates applica ble for the p articular year or years involved, upon the difference betw een the assessmen t or assessmen ts made pursuant to subparagraph (2) and the assessment or assessme nts made pu rsuant to subparagraph (3) hereof, for the taxable years included in the following tim e period sh all immed iately beco me du e and p ayable[.] 7 The plaintiffs also alleged that Section 19 (e)(4)(i) violated Articles 15 and 24 (contin ued...) -4- Section 19 (e) authorized the Departmen t to make agreem ents with private country clubs such as Burning Tree whereby, in exchange for an agreement to preserve open spaces from development for a term of years, the club would receive a reduced real property tax rate. Id. at 56-57, 501 A.2d at 818-19. The statute established a dual system of assessments, one calculated under the o rdinary assum ption of b est use, the other, lower a ssessmen t, calculated under t he assu mption that the la nd rem ain und evelop ed. Id. at 57, 501 A.2d at 818-19. So long as the agreement was in effect, the State collected property tax only on the lower assessed value. In case the country club breached the agreeme nt, the State co uld collect taxes prospectively on the higher assessed value; moreover, a portion of the tax that would have been due based on the difference between the lower and higher assessed values wou ld ha ve been a ccelerate d and becom e paya ble im med iately. 7 (...continued) of the M aryland Dec laration of R ights. Article 1 5 provide s, in relevant p art: [A]ll taxes therea fter provide d to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes , shall be uniform within each class or sub-class of land . . .; yet fines, duties or taxes m ay properly and ju stly be imposed , or laid with a political view for the good government and benefit of the com mun ity. Article 24 states: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed , or depr ived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. -5- In 1974, the General Assembly amended Section 19 (e) to add an anti-discrimination provision, which conditioned the tax benef it on an agre ement no t to discrimina te on account of race, color, creed, sex, or national origin, unless the clubs were operated with the primary purpose, as determin ed by the Atto rney Gener al, to serve or benefit members of a particular sex. Burning Tree I, 305 Md. at 57, 501 A.2d at 819 (emphasis added); 1974 M d. Laws, Chap. 870. The amended statute also contained a so-called periodic discrimination clause, exempting from the anti-discrimination provision those clubs which exclude certain sexes only on certain d ays and at certain times. Burning Tree I, 305 Md. at 57, 501 A.2d at 819; 1974 Md. Laws, Chap. 870. There were several issues8 before the Cou rt in Burning Tree I: whether the roles of the State and the Department under Section 19 (e) of Article 81 in conjunction with the Club s participation in the open s pace prog ram, amo unted to state action,9 Burning Tree I, 8 The circuit court did not reach the plaintiffs claims under Articles 15 and 24, and ne ither did we. Burning Tree I, 305 Md. at 61, 501 A.2d at 821. 9 The Equal Protection Clause of the Fourtee nth Amen dment ha s been he ld to proscribe discrimination by private entities whose activities so involve the government as to implicate the state action doctrine. Burning Tree I, 305 Md. at 65, 501 A.2d at 822-23. Under th e ERA , the state action doctrine has been held in pari ma teria with the under the law provisio n. Id. at 90 n.3 , 501 A .2d at 83 6 n.3. See, e.g ., Brentw ood A cad. v. Tenn. Secondary Sch. Athletic Ass n, 531 U.S. 288, 295 n.2, 121 S. Ct. 924, 930 n.2, 148 L. Ed. 2d 807, 817 n.2 (2 001) (state ac tion equiva lent to under color of state law ); Blum v. Yaretsky, 457 U.S. 991, 1004, 10 2 S. Ct. 277 7, 2786, 73 L. Ed. 2d 5 34, 546 (1 982) (me re fact a business is regulated by the state does not automatically transform such regulation in to state action for purposes of the Fo urteenth Amen dment); Lugar v. Edmondson Oil Co., 457 U.S. 922, 942, 102 S. Ct. 2744, 2756, 73 L. Ed. 2d 482, 498-99 (1982) (prejudgment attachment of debtor s property constituted state action); Jackson v. Metro. Edison Co., 419 U.S. 345, (contin ued...) -6- 305 Md. at 85, 501 A.2d at 833; whether the primary purpose clause violated the ERA; and whether the primary purpose clause was severable from the statute s overall prohibition against discrimination.10 Id. at 80, 501 A .2d at 830-3 1. The C ourt issued th ree separate opinions. Id. at 56, 501 A.2d at 818 (Chief Judge Murphy, joined by Judges Smith an d Orth); id. at 85, 501 A .2d at 833 (J udge R odows ky, concurring ); id. at 88, 501 A.2d at 835 (Judge Eldridge, joined by Judges C ole and Bloom ). Chief Judge Murphy, joined by Judges Charles E. Orth, Jr. and Marvin H. Smith, took the position that the involvement of the State and the Department in the open space program did not constitu te state ac tion. Id. at 64-65, 501 A.2d at 822-23. In Chief Ju dge Murp hy s opinion, Section 19 (e)(4 )(i) was facially ne utral, id. at 71, 501 A.2d at 826, and the State bore no responsibility for the Club s discrimination, because the State did not initiate the Club s discriminato ry members hip policy, the S tate did not ca use the Clu b to implement 9 (...continued) 351, 95 S. Ct. 449, 453, 42 L. Ed. 2d 477, 484 (1974) ( [T]he inq uiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. ) (cancellation of service by regulated public utility for non-payment h eld not state action); Moose Lodge No . 107 v. Irvis, 407 U.S. 163, 177, 92 S. Ct. 1965, 1973, 32 L. Ed. 2d 627, 640 (1972) (granting state liquor license to racially discrimina tory private club not state action); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724, 81 S. Ct. 856, 861, 6 L. Ed. 2d 45, 51-52 (1961) (operation of racially discriminatory restaurant in premises leased from government agency was state action); Shelley v. Kraemer, 334 U.S. 1, 19, 68 S. Ct. 836, 845, 92 L. Ed. 1161, 1183 (1948) (judicial enforcement of racially restrictive covenant running with the land was s tate action). 10 The complaint challenged only the primary purpose clause, not th e periodic discrimination clause; therefore, the circuit court limited its ERA analysis to that issue. Burning Tree I, 305 Md. at 80, 501 A.2d at 830-31. -7- those policies through coercion or inducement, and the statutory purpose 11 bore no relationship to sex d iscrimin ation. Id. at 75-76, 5 01 A.2d at 828-29. Judge Lawrence F. Rodowsky agreed only to the extent that the actions of the Attorney General and the Department in certifying compliance with the terms of Section 19 (e)(4)(i), did not, in his view, become state action as a result of the Club s participation in the open space program, id. at 85-86, 501 A.2d at 833-34, although he maintained that the statute itself constituted state action, because the statute drew sex-based distinctions on its face. Id. at 85-86, 501 A.2d at 833-34. Judge John C. Eldridge, joined by Judges Harry A. Cole and Theodore G. Bloom, totally disagree[ d] with C hief Judg e Murp hy s view tha t the statute and its administration by the State were gender neutral, id. at 91, 501 A.2d at 836; furthermore, Judge Eldridg e believ ed there clearly [w as] state a ction, id. at 91, 501 A.2d at 836, because Section 19 (e)(4)(i) drew a distinction between sex-based discrimination and other forms of discrimination, and because the administrative mechan ism set up b y the statute clear ly involv e[d] the State in t he disc riminatio n by the Club. Id. at 91-93, 501 A.2d at 836-37. A majority o f the C ourt, co nsisting of Jud ge Ro dows ky, id. at 88, 501 A.2d at 834-35, 11 Chief Judge Murphy regarded the open space program as the statutory purpose, a contention the plaintiffs, and Judge Eldridg e, dispu ted. Compare Burning Tree I, 305 Md. at 76, 501 A.2d a t 828 ( The purp ose of the statute [was] to p reserve open spaces . . . . ), with id. at 100, 501 A.2d at 841 ( It is undisputed that the sole purpose of the provision was to allow Burning Tree to continue discriminating against wome n and still rece ive the state subsidy. ). In Judge Eldridge s view, the problem was the conflation in the Ch ief Judge s opinion of the original statute and the amended version, 1974 Maryland Law, Chapter 870, which contained the disputed anti-disc riminatio n prov ision. Burning Tree I, 305 Md. at 10102, 501 A.2d at 842. -8- and Judges Eldrid ge, Co le and B loom, id. at 91, 501 A .2d at 836, h eld that the p rimary purpose clause on its face violated the E RA. B ecause Ju dge Ro dowsk y disagreed w ith Judge Eldridg e abou t severa bility, id. at 91 & n.5, 501 A.2d at 836 & n.5, a different m ajority consisting of Chief Judge Murphy, and Judges Orth an d Smith , id. at 84, 501 A.2d at 832-33, agreed with Judge Rodo wsky, id. at 85, 501 A.2d at 833, holding that the primary purpose clause was not se verable fro m Section 19 (e)(4)(i), ther eby invalidating the entire antidiscrimination provision (and rendering the periodic discrim ination clause moot). On the ERA issue, Chief Judge Murphy, writing for himself and two other judges, concluded that the primary purpose clause did not implicate the ERA and therefore, was not subject to strict scrutiny, because the clause benefitted and burdened both sexe s equ ally, id. at 71, 501 A .2d at 826, a nd becau se the ER A was essentially limited in its scope to unequal treatment imposed by law as between the sexes. Id. at 65, 501 A.2d at 823 (emphas is added). A ccording to Chief Ju dge M urphy, enactm ent and administration of Section 19 (e)(4 ) constitu ted ac tion by the State, id. at 70, 501 A.2d at 826; nevertheless, the statute [did] not apportion or distribute benefits or burdens unequally among the sexes, but rather [made] the tax be nefit equally available to all single sex country clubs agreeing to participate in the State s open space program. Id. at 71, 501 A.2d at 826. Furthermore, [t]he only burden [was] that imposed on the public treasury as a result of the preferential tax assessment afforded to qualifying country clubs, a burden born equally by all Maryland citizens, men and women alike. Id. Likewise, the public benefits which accrue[d] from -9- the preservation of open spaces [were] shared equally by each sex. Id. Although acknowledging that separate but equal facilities for men and women may be subject to strict scrutiny because of inherent inequality of treatment for one sex or the other in the separation process itself, id. at 79, 501 A.2d at 830, Chief Judge Murphy determined that heightened scrutiny was not implicated under the facts of Burning Tree I because the primary purpose clau se w as pe rmis sive, not m andatory.12 Id. Judge Eldridge, writing for himself and two other judges, rejected the Ch ief Judge s gender neutral analysis, warning that Ch ief Judge Mu rphy s opinion seems to em brace a type of separate but equal doctrine for pu rposes of the E .R.A. Id. at 91, 501 A.2d at 836. Judge Eldridge stated that regardless of whether the sexes are b enef itted or bu rden ed eq ually, any statute that implicates gender classifications on its face must be subject to strict scru tiny, id. at 99, 501 A.2d at 840, and explained the scope of the ERA: While it is true that many of our prior cases have involved government action directly imposing a burden or conferring a benefit entirely up on eithe r males or fem ales, we have never held that the E.R.A. is narrowly limited to such situations. On the contrar y, we hav e view ed the E .R.A. m ore bro adly, in accordance with its language and purpose. Id. at 95, 501 A.2d at 838 (emphasis added). He then looked to our jurisprudence in Rand, 12 Chief Judge Murphy said that under the facts of Burning Tree I, it was unnecessary to give de tailed consid eration to w hether state a ction in providing separate but equal facilities for me n and w omen violates the E.R .A. Although conceivably such a law might be subject to challenge, Sectio n 19 (e)(4) does not require separate but equal facilities, but s imply recognizes that single sex c lubs may be e ligible to particip ate in the state program. 305 M d. at 79, 501 A.2d at 8 30 (emphasis add ed). -10- in which we stated that the language of the ERA was unambiguous and can only mean that sex is not a factor , id. at 95, 501 A.2d 838, quoting Rand, 280 Md. at 512, 374 A.2d at 903 (emphasis added), and also in Maryla nd State Board of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973), in which the Court took the position that under the E.R.A. classifications based on sex were suspect classifications subject to stricter scrutiny. Burning Tree I, 305 Md. at 95, 501 A.2d 838, quoting Kuhn, 270 Md. at 506-07, 312 A.2d at 222. In a concurring opinion, Judge Rodowsky agreed with Judge Eldridge that the primary purpose clause on its face violated the ERA, which represented the holding of the case. Id. at 85 , 501 A.2d at 8 33. Indeed, in Judg e Ro dow sky s view , not o nly was the primary purpose clause constitutionally infirm, but the periodic discrimination provision failed for exactly the same re asons. Id. at 86-87, 501 A.2d at 834. Judges Eldridge and Rodowsky differed on the severability issue; Judge Rodowsky agreed with the Chief Judge that the primary purpose clause was nonseverable, and hence, the entire anti-discrimination provisio n was void. Id. at 85, 501 A.2d at 833. A principal point of contention in Burning Tree I was the particular level of application of the disputed anti-discrimination provision. The Chief Judge regarded Section 19 (e)(4)(i) as neutral, because in principle an all-fem ale club could operate as a mirrorimage of Burning Tree and enjoy the state tax benefit, so that the universe of consideration was the set of all eligible country clubs. Id. at 71, 501 A.2d at 826. According to this view, -11- all country clubs were situated equally with respect to the open spa ce program ; all-female clubs and all-male clubs were free to discriminate equally, and hence, there was no ERA violation. The fac t that a single all-m ale club just happened to be the only eligible e ntity under Section 19 (e)(4)(i) was, in this view, an irrelevant coincidence. A majority of the Court, however, held that the universe of consideration was each particular participa ting club . Jud ge R odowsk y state d this pro posi tion explicitly: It is not an answ er to the sub ject argum ent of the a ppellees to say that at the elevated level of the statewide open space program established by § 19(e) the program is neutral w ith respect to sex, in the se nse that an a ll female or an all ma le country club is eligible to participate. The ostensible prohibition against sex discrimination applies to each individual country club particip ating in t he ope n space progra m. The universe of consideration for the particular prob lem crea ted by this antidiscrimination law is any participating country club, in and of itself. Id. at 87, 501 A .2d at 834 (e mphasis a dded), and Judge E ldridge agre ed, becau se he directly refuted the pos ition of t he Ch ief Jud ge. Id. at 95, 501 A.2d at 838 ( [T]he th ree appare ntly do not view the express sanctioning of single sex clubs as imposing a burden upon the excluded sex, as long as the governm ental action in theory equally sanctions discrimination by single sex facilities against persons of the o ther sex. ). Iron ically, the positions set out by Judges Eldridge and Rodowsky find support in an article by Barbara A. Brown, Thomas I. Emerson, Gail Fa lk & A nn E. F reedm an, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 889-93 (1971), cited at several points as support in the minority opinion of Chief Judge -12- Mu rphy. Burning Tree I, 305 Md. at 64 & n.3, 70, 79, 501 A.2d at 822 & n.3, 825, 830. The Brown article defines why the separate but equal theory implicit in the C hief Judge s opinion ultimately subverts the meaning and purpose of the ERA. Because the basic principle of the ERA is that sex is not a permissible factor in determining the legal rights of women and men, it follows that the treatment of any person 13 under the law may not be based on the circumstance of a pa rticular p erson s sex. Br own, supra at 889 ( emph asis add ed). Accord Burning Tree I, 305 Md. at 64, 71, 501 A.2 d at 822, 82 5; Rand, 280 Md. at 512, 374 A.2d 13 That Judges Eldridge and Rodowsky were prescient in their views on the individualized level of strict sc rutiny was co nfirmed in the recent S upreme C ourt decision Parents Involved in Community Schools v. Seattle S chool D istrict No . 1, 551 U.S. ___, ___, 127 S. Ct. 2738, 2753, 168 L. Ed. 2d 508, 524-25 (2007) (Nos. 05-908, 05-915, September Term 2006), where Chief Justice John G. Roberts, Jr. said: The entire gist of the analysis in Grutter[ v. Bollinger, 539 U.S. 306, 123 S . Ct. 232 5, 156 L. Ed. 2d 304 (2003),] was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants b y race upheld in Grutter was only as part of a h ighly indiv idualize d, holistic review , 539 U.S. at 337, 12 3 S. Ct. [at 2343, 156 L. Ed. 2d at 338]. The analog y to the inst ant case is clear. See also Miller v. Johnson, 515 U.S. 900, 911, 115 S. Ct. 2475, 2486, 13 2 L. Ed. 2d 762 , 776 (1995) ( At the heart of the Constitution s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class. ). Accord Adarand Constructors, Inc. v. Pena, 515 U.S. 200 , 227, 115 S . Ct. 2097, 2112-13, 132 L. Ed. 2d 158, 182 (1995) ( It f ollows fro m the b asic principle that the Fifth and Fourteen th Amen dments . . . pro tect persons, not groups that all governmental action based on race a group classification long recognized as in most circumstances irrelevant and therefore prohibited, should be subjected to detailed judicial inquiry to ensure that the personal right to equa l protection o f the laws has not been infringed. ) (citation omitted) (emphasis in original). -13- at 903. To summarize, in Burning Tree I a majority of this Court applied strict scrutiny to invalidate an ostensibly neutral statute that drew sex-based classifications. The analysis focused on the individual level to determine whether the State had granted a benefit or imposed a burden on the bas is of sex. Fo ur Judges of this Co urt rejected th e separate but equal approach suggested in Chief Judge Murphy s minority opinion. 2. Maryland ERA Jurisprudence Before Burning Tree I Because I disagree with the majority about the meaning and purpose of the ERA, and because the legislative history of the ERA is so sparse,14 I set out in some detail the principal cases interpreting the ERA decided by this Court before Burning Tree I, in the period between 1972 and 1985, because they afford better guidance regarding the interpretation of the ERA than any other extant source. That case law provides the backdrop for the opinions in Burning Tree I and supports the position that strict scrutiny applies in the instant case. In Maryla nd State Board of Barber Examiners v. Kuhn, 270 Md. at 498, 312 A.2d at 14 The majority attempts to parse the meaning of the ERA from contemporaneous newspaper articles, see slip op. at 13-16 & n.17, although we have questioned the legitimacy of so doin g. See In re Jason W., 378 M d. 596, 6 07-11, 837 A.2d 168, 175-78 (2003) (Harrell, J., concurring); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 661, 458 A.2d 758, 792 (1983) (Cole, J., dissenting). To appreciate the weakness of reliance on newspaper articles, consid er the fact tha t an analysis of the interpretive methodology of this Court over the period from 1987 to 1994 revealed o nly one case o ut of sixty-six w here this Court even me ntioned ne wspape r accounts in the contex t of statutory inte rpretatio n. See Jack Schwa rtz & Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and Misuse of Legislative History, 54 Md. L. Re v. 432, 466-72 (19 95). -14- 217-18, a group o f cosmeto logists mounted a constitutional challenge to a statutory scheme that prohibited them from cutting and shampooing men s hair on the same basis as women s. One of the statutes at issue, Section 529 (a) of Article 43, Maryland Code (1957, 1973 Supp.), defined the professional services perfor med b y cosme tologists as wo rk . . . for the embellishm ent, cleanlin ess and beautif ication o f wom en s ha ir. 15 A different statute, Section 323 of Article 43, Maryland Code (1957, 1973 Supp.), defined the corresponding services perform ed by barbers without lim itation to the sex of the client. 16 Under th is 15 The statute stated, in releva nt part: (a) The term beauty culture includes any and all work done for compensation by any person which work is generally and usually performed by so-called hairdressers, cosmetologists, cosmetolo gists aides, cosm eticians, beau ticians or bea uty culturists and demonstrators of beauty preparations or equipme nt, and however denominated in so-called hairdressing and beauty shops ordinarily patronized by wo men, which w ork is for the embellishment, cleanliness and beautification of women s hair, such as arranging, d ressing, curlin g, waving, permanent waving, cleansing, cutting, singeing, arching of eyebrows, dyeing of eyebrows and eyelashes, bleaching, coloring, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, exercising, or similar work upon the scalp, face, arms or hands, by the use of mechanical or electrical apparatus or appliances or cosmetics, preparations, tonics, antiseptics, creams or lotions or by any other means, and of manicuring the nails of either sex, which enumerated practices shall be inclusive of the term beauty culture but not in limitation thereof. Md. Cod e (1957, 1973 S upp.), Art. 43, § 529 (a). 16 Before July 1, 1973, the statute stated: (contin ued...) -15- scheme, cosmetologists who applied to men s hair the same techniques they customarily used on women s hair, risked the loss of their licenses and even c riminal p rosecu tion. Kuhn, 270 Md. at 500-01, 312 A.2d at 218-19. In holdin g that A rticle 46 was in applica ble, id. at 505-06, 312 A .2d at 221-2 2, this Court said that the statute [did] not discriminate against cosmetologists of either sex; nor, for that matter, [was] there discrimination based on sex between barbers. Id. at 505, 312 A.2d at 221. The Court conceded that if a group of males, individually and on behalf of 16 (...continued) To shave, trim the beard or cut the hair of any person or to give shampoos, tonics or massages for hire or reward received by the person performing such service, or any other person, shall be construed as practicing the occupation of a barber within the meaning of this subtitle. Md. Code (1957 ), Art. 43 , § 323. Effective July 1, 1973, the statute was amended as follows: Within the meaning of this subtitle, the practicing of the occupation of a barbe r includes, bu t is not limited to, shaving, trimming the beard, cutting and razor cutting, styling, relaxing, body waving, shampooing, hair coloring, facial massaging, designing, fitting and cutting of hair pieces for hire or reward received by the person performing the service. These activities must be performed by a duly licensed barber or in a duly licensed barbering school except mere sales of wigs or hairpieces or wh ere in the discretio n of the Board , special circumstances merit exemption. This section shall not be construed as a limitation or restriction upon the services which licensed cosmetolo gists are perm itted to perform pursuant to the provisions of this article. Md. Code (1957, 1973 Supp.), Art. 43, § 323. -16- others similarly situated, were complaining that because of their sex, they were being denied the services of cosmetolo gists, the resu lt would h ave been different. Id. at 505-06, 312 A.2d at 221. Rather, Article 46 was inapplicable because the statute at issue treated every cosmetologist and barber exactly the same, and because the victims of discrimination were not parties to the case. T herefo re, Kuhn stands for the proposition that sex-based classifications trigger the ERA if the challenging party is the target of discrimination.17 In Rand v. Rand, 280 Md. at 510-11, 374 A.2d at 902, this Court considered whether the common law duty of paternal support of m inor children survived the enactment of the ERA. In a unanimous opinion, the Court held: The words of the E.R.A. are clear and unambiguous; they say without equivoca tion that Eq uality of rights under the la w shall not be abridged or denied because of sex. This language mandating equality of rights can o nly m ean that sex is not a factor. Id. at 511-12, 374 A.2d at 902-03. Therefore, the ERA mandated that the parental duty of child support w as shared jo intly by both parents, in deroga tion of th e com mon la w rule. Id. at 517, 374 A.2d at 905. In its interpretation of the Maryland ERA, the Rand Court examined cases from a 17 Kuhn is not inconsistent with Burning Tree I. Bainum had taxpayer standing in Burning Tree I because M aryland h as libera l rules of standin g for tax payer suit s. See Burning Tree II, 315 Md. at 29 3, 554 A .2d at 385 ( The case s in this Court generally stand for the principle that a taxpayer has standing to challenge a statute s constitutionality upon a showing that the statute, as applied, actually or potentially increases the plaintiff s tax burden. ). It is also noteworthy that Bainum s co-plaintiff Renschler was a victim of sex discrimination practiced by Burning Tree Club. -17- number of othe r states co nstruing similar p rovision s in their o wn co nstitution s. Id. at 512-16, 374 A.2d at 903-05. At the conclusion of its analysis, a unanimous Court stated: It is thus clear that the tests employed under constitutional provisions dealing w ith equality of rights range from abs olute to permissive. Like the Suprem e Court of Washington, ho wever, we believe that the broad, s weep ing, mandatory language of the amendment is cogent evidence that the people of Maryland are fully committed to equal rights for men and wo men. The adoption of the E.R.A. in this [S]tate was intended to, and did, drastically alter traditional views of the validity of sex-based classifications. Id. at 515-16, 374 A.2d at 904-05. Because the Supreme Court of Washington did not consid er whe ther the s ex-bas ed class ification at issue . . . satisfied the rational relation ship or strict scrutiny test, but instead found an overriding compelling state interest intrinsic to the ER A, id. at 512, 374 A.2d at 903,18 the clear implication is that this Court endorsed a near-absolute level of scrutiny for sex-based classifications. Other cases prior to Burning Tree I invalidated s ex-based classifications on the bas is of Article 46. For example, in Kline v. An sell, 287 Md. 585 , 414 A.2d 929 (1980), this Court considered whether the common law cause of action for criminal conversation remained viable in light of the ERA. At common law, the cause of action for criminal conversation was available only to a man. The gravamen of this action was ad ultery. Its elements consisted of a valid marriage and an act of sexual 18 See Darrin, 540 P.2d 882. The Supreme Court of Washington held that a ru le prohibiting girls from participating in high sch ool football violated that State s ERA, and that the ERA itself was th e com pelling s tate intere st. Id. at 893. -18- intercourse between a married woman and a man other than her husband. The fac t that the wife consented , that she was the aggressor, that she represented herself as single, that she was mistreated or neglecte d by her husb and, that she and her husband were sep arated throu gh no fau lt of her own, or that her husband was impotent, were not valid defenses. Id. at 586-87, 414 A.2d at 930 (citations omitted). The Court applied Article 46, as construed in Rand, to abro gate the cause o f action for crim inal con versatio n. Id. at 593, 414 A.2d at 933. In the present case, the majority interprets Kline to buttress its view that the ERA must be applied under a benefits/burdens analysis. See slip op. at 26 & n.24; Kline, 287 Md. at 592, 414 A.2 d at 932 ( e xplicating this Court s holding that it would be uncon stitutional to impose a burden on fathers which was not e qua lly imposed on moth ers ); id. at 593, 414 A.2d at 933 ( Thus, M aryland s law provides different benefits for and imposes different burdens upon its citizens based solely upon their sex. Such a result violates the ERA. ). That view is simply a consequence of the particular issue posed in Kline, where the common law rule, like most sex-based classification schemes, drew categorical distinctions between males and females as classes. A more accurate interpretation of Kline results from a comparison of the rights and obligations of the husband and wife in that case. Because the elements of the tort of criminal conversation were a valid marriage and an act of sexual interc ourse betw een the w ife and a m an other tha n her husb and, it is obvious that the wife la cked a leg ally cognizable cause of action against the (hypothetical) mistress of her husband, whereas, at common law, the husband had a valid cause of action against the -19- paramou r of his wife. Kline, 287 Md. at 586-87, 414 A.2d at 930. But for the fact that the husband was male, he would have been unable to sustain the cause of actio n. It was obvious to the Court that the unequal rights under the law enjoyed by the wife, compared to the husband, could n ot surviv e the scr utiny man dated b y the ER A. Id. at 593, 414 A.2d at 933 ( A man ha s a cause of action fo r criminal conversation, but a w oman does n ot. ). The same conclusion results from a comparison of the legal obligations of the paramour and a hypothetical female mistress of the h usban d. At common law as it existed in this State up to 1980, for the act of engaging in sexual relations with the wife, the paramour was liable for damages to the husband. But for the fact he was male, the paramour would have suffered no liability. The hypothe tical female mistress in our example could not have been sued for criminal conversation if she had engaged in sexual relations with the husband, even though she had engaged in the same conduct as the paramour. Clearly, such a sex-based classification scheme could not withstand the scrutiny mandated by the ERA. Id. ( The common law cause of action for criminal conversation . . . cannot be reconciled with our comm itment to equality of the sexes. ). Therefore, the conclusion drawn from Kline is that analysis of sex-based classifications focuses on the rights and obligations of the particular person affected by the classification. See also Burning Tree I, 305 Md. at 70, 501 A.2d at 8 25 (o pinion of Murph y, C.J.) ( The equality between the sexes mandated by the Maryland E.R.A. is of rights of individuals under the law . ) (emphasis added). Assum ing other personal chara cteristics are -20- held constant, the appropriate analysis under the ERA should compare the person affected by the challeng ed classifica tion with a similarly situated person of the opposite sex, and then determine whether her rights or obligations have been altered. Viewe d through this lens, it becomes clear that every sex-based classification that fails the benefits/burdens test must necessarily fail strict scru tiny at the in dividu al level. This Court applied that analysis in the time span from 1972 un til Burning Tree I. See Kline, 287 Md. at 591, 414 A.2d at 932, where the Court q uoted app rovingly from Rand s language that [t]he adoption of the E.R.A. in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classifications. Rand, 280 Md. at 515-16, 374 A.2d at 905. It is also noteworthy that the Kline Court examine d the legislative history surrounding criminal conversation and determined tha t, standing alone, history would have supported the inference that the General A ssembly had intended to leave the common law doctrine in place. 287 Md. at 590-91, 414 A.2d at 931-32. In 1945, the General Assembly had abolished the closely related cause of action for alienation of affections,19 but left standing the cause of action for crim inal con versatio n. Id. at 590, 414 A.2d at 931-32. The crucial intervening fact during that time was the adoption of Article 46, which additional factor was of sufficient significance to persuade us that the action for criminal conversation [was] no long er viable . 19 Alienation of affections was a common law cause of action that arose when a man induced a married woman to leave her husband, or otherw ise interfered with the marital relationship. Unlike criminal conversation, alienation of affections did not require proof of adultery as a separa te elem ent. See Kline v. Ansell, 287 M d. 585, 5 90, 414 A.2d 9 29, 932 (1980). -21- Id. at 591, 414 A.2d at 932. In Condo re v. Prince George s County , 289 M d. 516, 425 A.2d 10 11 (1981 ), this Court considered whether the common law doctrine of necessaries survived the enactment of the ERA . The majo rity determined that the ERA abrogated the doctrine, under which the husband had a lega l duty to supply his wife w ith necessarie s suitable to the ir station in life, but the wife had no corresponding obligation to support her husband, o r supply him w ith necessaries, even if she had the financial means to do so. Id. at 520, 425 A.2d at 1013. The Court agreed unanimously that the ERA mandated sex-neutrality for the doctrine of necessaries. Compare id. at 532, 425 A.2d at 1019 ( [E]xtend[ing] the common law necessaries doctrine to impose liability upon wives, or eliminating the necessaries doctrine in its entirety, both w ould satisfy the general pu rpose of th e ERA to proscribe sex-based classifications. ), with id. at 533, 425 A.2d at 1019 (Rodowsky, J., dissenting) ( I agree that this Court has the power to decide, based on the ERA . . . that the necessaries doctrine applies alike to both sexes. ). The majority relied on Rand in its determination that the words of the ERA clearly and unambiguously mandated equality of rights between men and women and can only mean that sex is not a factor. Id. at 524, 425 A.2d at 1015, quoting Rand, 280 Md. at 512, 374 A.2d at 903. The dissenters likewise believed the ERA and acts of the General Assemb ly have made it plain beyond doubt that family support obligation s are no lon ger exclusiv ely imposed on the male. Id. at 533, 425 A.2d at 1020. Nowhere did the Court invoke -22- comparisons of men and women as classes. See slip op. at 20. To summarize, in the years prior to Burning Tree I, our cases construing the ERA consistently applied strict sc rutiny to sex-base d classification s. This Co urt repeated ly affirmed its commitment to uphold the will of the People of Maryland to eradicate state sanctioned unequal treatment based on the happenstance of a particular person s sex. 3. Cases from Other States Analyzed by Judge Eldridge in Burning Tree I In Burning Tree I, Judge Eldridge also examined cases from other jurisdictions interpreting state con stitutiona l amen dmen ts similar to Ma ryland s E RA, Burning Tree I, 305 Md. at 96-98, 501 A.2d at 839-40, and recognized that courts in Massachusetts, Washington and Illinois interpreted ERA provisions in their own constitutions to require strict scrutiny of sex classifications.20 Id. That body of case law helped shape our own interpretation of the ERA, and supports the idea that strict scrutiny should apply here.21 See, e.g., Rand, 280 Md. at 512, 374 A .2d at 903 ( Cases from other state jurisdictions interpreting the breadth and 20 See, e.g., Opinion of the Justices to the House of Representatives, 371 N.E.2d 426, 427-28 (M ass. 1977) (a pplying strict scruti ny to invalidate exclusion of girls from state-sanctioned contact sports); Darrin, 540 P.2d at 893 (sam e); People v . Ellis, 311 N.E.2d 98, 101 (Ill. 1974) (applying strict scrutiny to invalidate statute that perm itted 17-year-old boys to be charged as ad ults, but precluded like treatment of 17-year-old girls). 21 Unlike the ma jority, see slip op. a t 33-35 , the opinions I cite actually were decided on the bas is of equal rights amendments in the various states. After quoting the exact same passage from Rand, the majority purports to analyze relevant cases, but fails to mention that the following w ere not decide d under a state ERA : In re Kandu, 315 B.R. 123 (Bankr. W.D. W ash. 2004 ) (decided u nder fede ral law); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 20 06) (no state ERA ); Baker v. Vermont, 744 A.2d 864 (Vt. 1999) (same); and Baker v. Nelson, 191 N.W.2d 185 (Minn. 19 71) (same). -23- meaning of their equal rights amendments are instructive in ascertaining the reach of Maryland s E.R.A . ). For exam ple, the Supreme Judicial Court of Massachusetts interpreted the Massac husetts ERA 22 to require application of the strict scrutiny compelling State interest test to assess any governmental classification based solely on sex. Opinion of the Justices to the House of Representatives, 371 N.E.2d 426, 428 (Mass. 1977) (emphasis added). The court considered wh ether a proposed statute, H ouse No. 672 3, barring girls from participation with boys i n footba ll and wre stling, was pe rmitt ed by the ERA.23 The court compared decisions from a number of states that had adopted equal rights amendments, and held that the purpose o f the ER A was to require, when evaluating sex-based equal protection claims, strict scru tiny ra ther than inter med iate s crutiny, 24 the standard applied by federal and 22 Mass. Const. pt. I, art. I ( All people are born free a nd equal a nd have c ertain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of ac quiring, p osse ssing and pro tecting prope rty; in fine, that of se eking and obtaining th eir safety and ha ppiness. E quality under the la w shall not be denied or ab ridged because of sex, race, color, creed or national origin. ). 23 Unlike Maryland, in Massachusetts the Supreme Judicial Court is req uired to issue advisory opinions in response to questions presented by either house of the state legislature. See Mass. Const. pt. II, ch. 3, art II ( Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upo n important questions of law, and upon so lemn occasions. ). 24 The Supreme Court developed the so-called intermediate scrutiny test for certain equal p rotectio n claim s, includ ing tho se base d on se x classif ications . See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090, 1098 (1982) (classification must serve important governmental objectives , and the means employed must be substantially related to ach ieving the o bjectives); Frontiero v. (contin ued...) -24- state courts to sex-ba sed equ al protec tion claim s unde r the Fo urteenth Ame ndme nt. Opinion of the Justices, 371 N.E.2d at 428 ( To use a standard in applying the Commo nwealth s equal rights amendment which requires any less than the strict scrutiny test would negate the purpose of the equal rights amendment and the intention of the people in ad opting it. ). Application of strict scrutiny led the cou rt to conclud e that the pro posed leg islation wou ld be uncon stitutional: The enactment of House No. 6723 would violate [the Massac husetts ERA]. The absolute prohibition in the proposed legislation cannot survive the close scrutiny to which a statutory classification based sole ly on sex m ust be su bjected . A prohibition of all fema les from v oluntary particip ation in a particular sport under every possible circumstance serves no compellin g State interes t. Id. at 429-30. Judge Eldridge also relied upon Darren v. Gould , 540 P.2d 882, 893 (Wash. 19 75), in which the Supreme Court of Washington invalidated a ban on girls participation on high 24 (...continued) Richardson, 411 U.S. 677, 688, 93 S. Ct. 1764, 1771, 36 L. Ed. 2d 5 83, 592 (1 973) (Plura lity consisting of Justices Brennan, Douglas, White and Marshall argued that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must theref ore be sub jected to strict jud icial scrutiny. ); id. at 691-92, 93 S. Ct. at 1773, 36 L. Ed. 2d at 594-95 (concurrence unwilling to adopt strict scrutiny for sex classifications); Reed v. Reed, 404 U.S. 71, 75-76, 92 S. Ct. 251, 253-54, 30 L. Ed. 2d 225, 229 (1971) (early Supreme Court case invalidating sex-based classification under rational basis rev iew). But cf. Un ited States v. V irginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996) (emphasizing that justification proffered by the State for gender classifications must be exceedingly persuasive, perhaps signaling a shift by the Court toward a stan dard closer to strict scrutiny). -25- school football teams. A school district in Washington had prohibited two sisters from playing on a football team because their participation was barred by a rule of the Washington Interscholas tic Activities A ssociation ( WIAA ), a statewide association of high schools. Id. at 883-84. As a preliminary matter, the court addressed the applicable standard of review under the Equal Protection Clause of the Fourteenth Amendment, and its State coun terpart, Article I, Section 12 of the Washington Constitution.25 Having held less than two years prev ious ly, in a case where the ERA26 was inapplicable,27 that under Washington law, sex would be regarded as an inh erently su spect c lassifica tion trigg ering str ict scrutin y, Hanson v. Hutt, 517 P.2d 599, 603 (Wash. 1974), 28 the court held that adoption of the ERA required 25 The relevant provision states: No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not eq ually belong to all citizens, or corporations. Wash. Const. art. I, § 12. This provision is also known as the Privileges and Immunities Clause. 26 Wash. Const. art. XXXI, § 1. The Washington ER A states: Equality of rights and responsibility under the law shall not be denied or abridged on account of sex. 27 Hanson v. Hutt, 517 P.2d 599 (Wash. 1974). The ER A was in applicable because the cause of action aros e in 1971, before the December 7, 1972 effective date of the ERA . Id. at 601, 603 n.3. 28 The Hanson court based its holding on the plurality opinion of the Supreme Court in Frontiero, 411 U.S. at 688, 93 S. Ct. at 1771, 36 L. Ed. 2 d at 592 . See supra note (contin ued...) -26- an even m ore strin gent sta ndard t han stric t scrutiny. Darrin v. G ould, 540 P.2d 882, 889 (1975) ( P resumab ly the people in adopting Const. art. 31 intended to do more than repeat what was already contained in the otherwise governing constitutional provisions, federal and state, by which discrimination based on sex was perm issible unde r the rational rela tionship and strict scrutiny tests. ). Henceforth, in Washington, [t]he overriding compelling state interest as adopted by the people of this state in 1972 is that: Equality of rights and responsibility under the law shall not be denied or abridged on accou nt of se x. Id. at 893. Because the involvement of public high schools in the WIAA implicated th e state action doctrin e, id. at 891, the co urt applied th e overridin g compe lling state interest embodied in the ERA to invalidate the statewide ban on girls participation in high school intersch olastic f ootball. Id. at 893. A third case relied upon by Judge Eldridge in Burning Tree I was People v . Ellis, 311 N.E.2d 98, 101 (Ill. 1974), in which the Supreme Court of Illinois interpreted the ERA29 to require that classifications based on sex be regarded as suspect, and therefore, require strict judicial scrutiny. From the plain language of the E RA and its leg islati ve histor y, the court found inescapable the conclusion that the purpose of the ERA was to 28 (...continued) 24. 29 Ill. Cons t. art. I, § 18 ( The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts. ). -27- supplement and expand the guaranties of the equal protection provision of the Bill of Rights of the Fed eral Co nstitution . Id. Under a strict scrutiny analysis, the court he ld that a statute permitting 17-year-old b oys to be charg ed as adu lts for certain crimes, but requiring 17 -yearold girls to be tried as juveniles, violated the Illinois ERA.30 Id. at 99, 101. 4. Strict Scrutiny for Sex-Based Classifications Even Where Facially Neutral On the basis of Rand and its proge ny, and cases in sister states interpreting similar constitutional provisions, Judge Eldridge in Burning Tree I conclu ded tha t the E .R.A. renders sex-based classifications suspect an d subject to a t least strict scrutiny, w ith the burden of persua sion being upon those attempting to justify the classifications. Burning Tree I, 305 Md. at 98, 501 A.2 d at 840 (em phasis in orig inal). Theref ore, [i]n this re spect, the E.R.A. makes sex classifications subject to at least the same scrutiny as racial classific ations. Id. (emphasis added). Even a facially neutral statute can implicate strict scrutiny if the purpose and effect of the classification are discriminatory, Judge Eldridge conclu ded. Id. at 100, 501 A.2d at 841. Indeed, 30 The statute in force at the time of the crimes stated: Except as provide d in this Secti on, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof. Ill. Rev. S tat. 1971 , ch. 37, ¶ 702-7(1). The current gender neutral statute is codified at 705 Ill. Comp. Stat. 405/5-120 (1 999). -28- [i]f the purpose and effect of the p rimary purpose provision had related to single race rather than single sex clubs, the provision, regardless of any alleg ed neutra lity in the language, would clearly fall under the principles of Hunter v. Underwood[31]; Arlington Heights v. Metropolitan Housing Corp.[32]; Gomillion v. Lightfoot[33], and similar cases. Id. at 102, 501 A.2d at 842 (emphasis added). In Judge Eldridge s view, Sec tion 19 (e)(4)(1), which prohibited discrimination on the grounds of race, color, creed, sex, or national origin, but permitted sexual discrimination when the country club s primary purpose was to serve or benefit m embers o f a particular sex, was unconstitu tional both on its face a nd in its 31 Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 1923, 85 L. Ed. 2d 222, 231 (198 5), held that an Alabam a constitutional provision requiring the disenfranchisement of those convicted of any crime of moral turpitude violated the Equal Protection Clause of the Fourteenth Amendment, because the provision had a racially disparate impact, and because racial discrimination was a substantial or motivating factor behind the enactment. The Supreme Court found the Alabama constitutional provision invalid despite its facial neutralit y. Id. at 227, 105 S. Ct. at 1919-20, 85 L. Ed. 2d at 227-28. 32 Village of Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252, 270-71, 97 S. Ct. 555, 566, 50 L. Ed. 2d 450, 468 (1977), upheld a facially neutral local zoning restriction against an Equal Protection challenge despite its racia lly disproportion ate impact, because there was insufficient evidence of a racially discriminatory motive in the Village s zoning decision. 33 Gomillion v. Lightfoot, 364 U.S. 339, 340-42, 81 S. C t. 125, 12 7, 5 L. Ed. 2d 110, 113 (1960), held that action by a state legislature redefining the boundaries of a municipa lity was pote ntially unconstitutional on Fifteenth Amendment grounds, because the African-American plaintiffs below alleged a racially discriminatory purpose to deprive them of their voting rights. Because the procedural posture was an appeal from dismissal for failure to state a claim upon which relief could be granted, the Court declined to address the substan tive issu e. Id. at 348, 81 S. Ct. at 130, 5 L. Ed. 2d at 117. In a concurring opinion, Justice Whittaker argued tha t the Court should ha ve analyzed th e case und er the Fou rteenth Amendment Equal Protection Clause . Id. at 349, 81 S. Ct. at 131-32, 5 L. Ed. 2d at 118-19 (Whittaker, J., concurring). Subsequent Supreme Court decisions adopte d this ratio nale. See Shaw v. Reno, 509 U.S. 630, 645, 113 S. Ct. 2816, 2825-26 , 125 L. Ed. 2d 51 1, 527 (1993). -29- effect. Id. at 99-102, 501 A.2d at 840-42. Because at all times from the enactment of the primary purpose anti-discrimination provision, until the time the case was litigated, Burning Tree was the only entity to w hich the provisio n applie d, id. at 100, 501 A.2d at 841, it was und isputed that the purpose and effect of Section 19 (e)(4)(1) were to permit one country club to maintain its discriminatory policy while continuing to receive a substantial state benefit. Id. at 101, 501 A.2d at 841. In that re spect, Burning Tree I was indistinguish able from a line of Supreme C ourt cases that invalidated ostensibly neutral laws the effects of wh ich we re paten tly discrim inatory on groun ds of ra ce. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227, 233, 105 S. Ct. 1916, 1919-20, 1923, 85 L. Ed. 2d 222, 22728, 231 (1985) (facially neutral state constitutional provision disenfranchising disproportio nate numbers of African-Americans held in violation of Fourteenth Amendment Equal Protection Clause); Loving v. V irginia, 388 U.S. 1, 11-12, 87 S. Ct. 1817, 1823-24, 18 L. Ed. 2d 1010, 1017-18 (1967) (facially neutral anti-miscegenation statutes held in violation of Fourteenth Amendment Equal Protection and Due Process Cla uses); Gomillion v. Lightfoot, 364 U.S. 339, 341-42, 81 S. Ct. 125, 127, 5 L. Ed. 2d 110, 113 (1960) (local law altering municipa l boundar y to exclude n early all African -America n voters co nstitutionally suspect). To summarize, in Burning Tree I, a majority of this Court interpreted our prior cases to mandate a robust interpre tation of the ER A. Hencef orth, govern ment action resulting in sex-based classifications would be subject to strict scrutiny, with the burden placed on the -30- propone nts of the classifications to demonstrate they were narrowly tailored to further a compelling state interest. This Court took special care to look beneath ostensibly neutral classifications to their underlying purpose and effect, in order to ferret out state sanctioned discrimination masquerading as facially neutral law. B. Burning Tree II In Burning Tree II , this Court adopted Judge Eldridge s rationale in Burning Tree I and rejected the benefits/burdens analysis of Chief Judge Murphy, invalidating what was termed a sex neutral law . In response to the decisio n of this C ourt in Burning Tree I, the effect of which was to remove the anti-discrimination provision in its entirety from Section 19 (e), the Gen eral Assem bly enacted 1986 Maryland Laws, Chapter 334, which attempted to reenact the periodic discrimination provision.34 Burning Tree II , 315 Md. at 260-61, 554 34 The periodic dis crimination provision permitted a country club to exclude certain sexes on specific days or at specific times on the basis of sex. The relevant statutory section stated: (a) In General Except as provided in subsection (b) of this section, if a country club that meets the qualifications of § 8-212 of this subtitle allows or practices discrimination based on race, color, creed, sex, or national origin in granting membership or guest privileges, the country club may not make an agreement under this subtitle. (b) Exception If the country club excludes certain sexes on specific days or at specific times on the basis of sex , the country club does not discriminate under subsection (a) of this section. 1986 Md. Laws, Chap. 334, codified as Section 8-214 of the Tax-Property Article, Maryland Code (1986, 19 87 Supp .). In the time span between Burning Tree I and Burning Tree II , (contin ued...) -31- A.2d at 370. We held that any enactment of legislation which on its face draws classifications based on sex is state action sufficient to invoke the E.R.A. Id. at 293, 554 A.2d at 386 (em phasis added). For the precise reasons the primary purpose clause failed under Article 46, Chapter 334 failed a s well. Id. at 294-95, 554 A.2d at 386-87. Exactly like Section 19 (e), Chapter 334 drew sex-based classifications: first, Chapter 334 distinguished sex-based discriminatio n from other types of discrimination; second, Chapter 334 permitted some types of sex discrimination (period ic), but p roscribe d other s (total). Id. In addressing the State s contention that physical diff erences be tween the sexes justified the conteste d provision , this Court said: In order to justify a racially or sexually discriminatory statute, it is not enough for the State to cla im legitimate interests wh ich it seeks to further. Under strict scrutiny, legislation must be narrowly tailo red a nd p recis ely limited to achieving those legitimate ends. Id. at 296, 5 54 A.2 d at 387. We held 35 that the State had failed to meet its burden of demonstrating that Chapter 334 was narrowly tailored to achieving its purposes , id. ( Nothing in the statute narrowly confines the permitted sex discrimination to [single-sex 34 (...continued) Article 8 1 had b een rec odified as the T ax-Pro perty Arti cle. See supra note 6. 35 As the ma jority poin ts out, Burning Tree II also presented issues under, inter alia, the First Amendm ent, the Contract Clause (A rticle I, Section 10), and Article III, Section 33 of th e Mar yland Co nstitution . See slip op. at 23 n .21; Burning Tree II , 315 Md. at 261-62, 554 A.2d at 370. These issues are unrelated to the instant case. -32- golf tournaments]. ), regardless of whether those purposes were substantial, id. at 295, 554 A.2d a t 387, or legitim ate. 36 Id. at 296, 554 A.2d at 387. The majority in the present case fails to recognize that Burning Tree II clearly adopted strict scrutiny as the standard in ERA cases. Regardless of whether ostensibly the sexes are benefitted or bu rden ed eq ually b y a statutory classification, that statute must withstand strict scrutiny under t he ER A or els e be inv alidated . Id. at 293-96, 554 A.2d at 386-87. In order to justify a racially or sexually discriminatory statute, it is not eno ugh for th e State to claim legitimate interests which it seeks to further. Id. at 296, 554 A.2d at 387. Rather, the State must shoulder the heavy burden of demonstrating that the means chosen are the most restrictive possible consistent with achieving a compelling state inte rest. Furthermore, the holding of Burning Tree II on the ERA issue relied on the analytically indistingu ishable [Burning Tree I] case, Burning Tree II , 315 Md. at 294, 554 A.2d at 386, which, as I have demonstrated, traces its reasoning back to Rand and ultima tely, to the enactm ent of Ar ticle 46 itself. Therefore, the majority in the present case e rrs fundamentally in its assertion that [v]irtually every Marylan d case app lying Article 46 has dealt with situations where the 36 Whether the state interest was merely legitimate, substantial, or compelling was imm aterial to the case at hand. Subsequent decisions of this Court leave no doubt that th e approp riate state interest must be at least substantial. See In re R oberto d.B., 399 M d. 267, 2 79 n.13 , 923 A .2d 115 , 122 n.1 3 (200 7). I generally agree with the majority opinion s statement of the standards of review governing equal protection and substantive due pro cess cla ims, see slip op. at 41-4 7, with the a dded pro viso that under rational basis review, the burden of persuasion lies with those challenging the government action, whereas under both intermediate and strict scrutiny, the bu rden of p ersuasion re sts with the State. -33- distinction drawn by a particular governmental enaction or action singled-out for disparate treatment men and women as discrete classes. See slip op. at 26. C. Maryland Cases After Burning Tree II Apply Strict Scrutiny to Sex-Based Classifications Contrary to the assertion of the majority in the present case, our cases subseque nt to Burning Tree II have held that state action effecting classifications solely on the basis of sex is subject to strict scrutiny under the ERA. Tyler v. State, 330 Md. 261, 623 A.2d 648 (19 93), w as an appeal of a murder conviction in which th e defend ants contes ted the State s use of perem ptory challeng es to strike women from the jury pool. This Court extended Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82-8 3 (1986) (race-based peremptory strikes presump tively invalid under equal protection analysis), in light of Articles 24 and 46 of the Maryland Declaration of Rights, to hold that sex-based peremptory strikes are prohibited. In the wo rds o f Jud ge O rth, speak ing f or the ma jority: The equality of rights under law, without regard to gender, bestowed by Ar t. 46 o f the Maryland Declaration of Rights, flowing through the equal protection guarantees of Art. 24 of the Maryland Declaration of Rights to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (19 86), prohibits the S tate in a criminal prosecution from using peremptory challenges so as to exclude a person from service as a juror because of that person s sex. Tyler, 330 Md. at 270, 623 A.2d at 65 3 (emphasis adde d). Because the Su preme Cou rt had -34- not yet37 addressed the applicability of Batson to sex-based peremptory strikes, and because this Court had specifically reserved the question, Tolbert v. Sta te, 315 Md. 13, 23 n.7, 553 A.2d 228, 232 n.7 (1989), it was necessary that we construe the ERA to req uire substantial justification for state action providing for segregation based upon sex , just as the Fourteen th Amendment applies to segregation based u pon rac e. Tyler, 330 Md. at 265, 623 A.2d at 651. Indeed, the ERA was outcome determinative; we reversed the Court of Special Appeals, which h ad declined to extend Batson on the grounds that under Maryland common law, the peremptory challenge historically was regarded as conclusive and hence, unchallengeable, Eiland v. S tate, 92 Md. App. 56, 94, 607 A.2d 42, 61 ( 1992) , rev d sub nom Tyler, 330 Md. at 261, 623 A.2d at 648, and because the Supreme Court had not yet evinced a clear intent effectively to destroy the peremptory challenge through consistent application of the heavy artillery of the Equal Protection Clause. Eiland, 92 Md. App. at 88, 90, 607 A.2d at 58, 59. It is noteworthy that in extending Batson to sex-based peremptory strikes, we applied strict scrutiny to vindicate the right of an in dividual strick en juror no t to suffer state sanctioned discrimin ation, rej ecting a separa te but eq ual app roach. See Tyler, 330 Md. at 263, 623 A.2d at 649 ( [T]he State s p rivilege to strike individual jurors through peremp tory challenges, is subject to the commands of the Equal Protection Clause. ), quoting Batson, 37 Subsequ ently the Supreme C ourt would extend Batson to preclude sex-based peremptory challen ges. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31, 114 S. Ct. 1419, 1422, 128 L. Ed. 2d 89, 98 (1 994). -35- 476 U.S. at 89, 106 S. Ct. at 1719, 90 L. Ed. 2 d at 82. Compare Swain v. Alabama, 380 U.S. 202, 222, 85 S. C t. 824, 837, 13 L. Ed. 2d 759, 773 (1965) ( [W]e cannot hold that the Constitution requires an examination of the prosecutor s reasons fo r the exercise of his challenges in any giv en case . ), with Batson, 476 U.S. at 92 n.17, 106 S. Ct. at 1721 n.17, 90 L. Ed. 2d at 85 n.17 (In overruling Swain, the Court noted the practical difficulties faced by the defen dant wh o must de monstrate a systematic use of peremptory challenges to exclude African-Americans over a numb er of ca ses. ). Whereas Swain burdene d the defe ndant w ith the virtually impossible task of demonstrating a pervasive discriminatory pattern over the course of ma ny trials, Batson reduced the defendant s evidentiary burden by focusing on a single trial, and then shifting the burden of persuasion to the State upon satisfaction of a greatly diminished burden of production by the defenda nt. 476 U .S. at 96-97, 1 06 S. Ct. at 1723, 90 L. E d. 2d at 8 7-88. Moreover, the Batson Court noted the application of equal protection principles to the excluded jurors, not merely to the defen dant. Id. at 97-98, 106 S. Ct. at 1723-24, 90 L. Ed. 2d at 88. Ultimate ly, the Supreme Court recognized explicitly the equal protection right of an individual juror not to be excluded from [a petit jury] on account of race in Power s v. Ohio, 499 U.S. 400, 40 9, 111 S. Ct. 1364, 13 70, 113 L. Ed. 2d 411, 424 (1991 ), where the Cou rt extended Batson to cover instances of peremptory strikes exercised against potential jurors of a different race than that of a criminal defendant and repudiated the doctrine of separate but equal in the context of p eremptory challenges. The C ourt consciously reject[ed] . . . the -36- view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatmen t, which is to say that white jurors are subject to the same risk o f peremp tory challenges based on race as are a ll other jurors. Powers, 499 U.S. at 410, 111 S. Ct. at 1370, 113 L. Ed. 2d at 424-2 5. See also J.E.B. v . Alabam a ex rel. T.B., 511 U.S. 127, 15 9, 114 S . Ct. 141 9, 1437 , 128 L . Ed. 2d 89, 116 (1994 ) (Scalia , J., dissenting) (criticizing the majority for focusing unrealistically upon individual exercises of the peremptory challenge, and arguing unsuccessfully in favor of a group-based equal protection analysis of sex-based peremptory strikes). Thus, in adopting the Supreme C ourt s equal protection analysis under Batson and its progeny and applying that reasoning in light of the ERA , our holding in Tyler flatly contradicts the equal application approach espoused by the majority in the instant case. Giffin v. Crane, 351 Md. at 133, 716 A.2d at 1029, likewise was entirely consistent with the interpretation of the ERA as applicable to individuals. In Giffin, this Court faced the question whether Article 46 permitted a judge to weigh, as a relevant factor in a child custody proceedin g, the sex of either paren t in awardin g physical custody. Id. at 143, 716 A.2d at 1034. We noted that, under the best interest of the child standard, the trial judge exercises broad d iscretion . Id. at 144-45, 716 A.2d at 1035. That discretion is not unlimited, however; the judge cannot, co nsistent with the clear, un ambiguo us and un equivoca l language of Art icle 46, id. at 148, 716 A.2d at 1037, assume that a parent will be a better custodian of her c hild sole ly becaus e she is o f the sam e sex. Id. at 155, 716 A.2d at 1040. -37- We said that this Court has interpreted the Amendment s broad, sweeping m andatory langua ge, as the expression of Maryland s commitment to equal rights for men and women and the statemen t of its intention to alter traditional attitudes with respect to such rights. Id. at 151, 716 A.2d at 1038, quoting Rand, 280 Md. at 515, 374 A.2d at 905 (citation omitted). Furthermore, the equality between the sex es deman ded by the M aryland Equ al Rights Amendment focuses on rights of individuals under the law, which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens. Id. at 149, 716 A.2d at 1037, quoting Burning Tree I, 305 Md. at 70, 501 A.2d at 825 (emphasis added). We applied this understanding of the ERA to invalidate a custody award based on whether a parent and the child were of the same or opposite sex, despite the fact that a sex-matched custody determ ination w ould sa tisfy the eq ual app lication a pproac h. In Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998), a candidate running for Maryland State Senate filed suit in the Circu it Court for Anne Arundel County to strike the name of his opponent from the ballot on the basis of an alleged failure to satisfy the residency requirements. At issue w as wheth er the incum bent, Sena tor Clarenc e W. Blo unt, could run for re-election in a district entirely in Baltimore City despite the fact that he spent some 90 percent of his nights at a condo minium maintaine d by his wife in Pikesville, Baltimore Cou nty. Id. at 375, 718 A.2d at 1119. This Court conducted a thorough analysis of the law -38- of domicile in lig ht of Article III, Section 9 of the Maryland Constitution,38 because our case law has con strued resided to me an do miciled . Blount, 351 Md. at 365, 718 A.2d at 1113. Although the domicile of Mrs. Blount was not directly at issue , this Court no ted that [i]t is obvious that the general rule [that a married woman s domicile was determined by that of her husband regardless of her domiciliary intent] . . . was overruled by Article 46. Id. at 385 n.5, 718 A.2d at 1124 n.5. Other cases have affirmed that strict scrutiny is the rule applied to state action that draws classifications on the bas is of sex . See Ehrlich v. Perez, 394 Md. 691, 717 n.10, 908 A.2d 1220, 1236 n.10 (2006) ( [B]ecause of the Equa l Rights Amendment to the Maryland Constitution . . ., classifications based on gender are suspect and subject to strict scrutiny. ); 38 This constitutiona l provision g overns, inter a lia, residency requirements for members of the General Assembly. It provides as follows: A person is eligible to serve as a Senator or Delegate, who on the date of his election, (1) is a citizen of the State of Maryland, (2) has resided therein for at least one year next preceding that date, and (3) if the district w hich he ha s been ch osen to represent has been established for at least six months prior to the date of his election, has resided in that district for six months next preceding that date. If the district which the person has been chosen to represent has been established le ss than six m onths prior to the date of his election, then in a ddition to (1) an d (2) ab ove, he shall have resided in the district for as long as it has been established. A person is eligible to serve as a Senator, if he has attained the age of twenty-fiv e years, or as a D elegate, if he has attained the age of twenty-one years, on the date of his election. Md. Const. art. III, § 9. -39- Murphy v. Edmonds, 325 M d. 342, 357 n.7, 60 1 A.2d 1 02, 109 n .7 (1992) (sa me); Ritchie v. Donne lly, 324 Md. 344, 366, 597 A.2d 432, 443 (1991) (sex -based disc harge of S tate employee clearly not permitted b y Article 46); Briscoe v. P rince Ge orge s Co unty Hea lth Dept., 323 Md. 439, 452 n.7, 593 A.2d 1109, 1115 n.7 (1991) ( [B]ecause of Article 46 . . ., gen der-base d cla ssifi catio ns ar e sus pect and are s ubje ct to s trict s crutiny. Con sequ ently, a classification based on gender is in no way comparable to an employment classification based on differen t occupations. ) (citations omitted). D. Other States Have Interpreted Similar Constitutional Provisions to Require Strict Scrutiny. Because it is settled law in Maryland that sex-based classifications implicate strict scrutiny under t he ER A, Burning Tree II , 315 Md. at 293-96, 554 A.2d at 386-87, the majority must look , as it does, to cases from our sister states that refuse to acknowledge the sex-based classifications inherent in their same-sex marriage prohibitions, thereby avoiding ERA scrutiny a ltogethe r. See slip op. at 33-35. Several cases cited by the majority, however, were decided on grounds other than the ERA, and thus, are completely irrelevant to the question of the applicable standard of review und er our ERA . Among these are In re Kandu, 315 B.R. 123 (Ban kr. W.D. Wash. 2004) (decided u nder fede ral law); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (no state ERA); Baker v. Vermont, 744 A.2d 864 (Vt. 1999) (same); and Baker v. Nelson, 191 N.W.2d 185 (Minn. 19 71) (same). In cases that actually applied some version of the ERA to sex-based classifications, courts have consistently adopted strict scrutiny as the proper analytical framework. For -40- example, the Supreme Court of New Mexico considered whether the Secretary of the New Mexico Huma n Services Departm ent could im plement a regulation, R ule 766,39 restricting state reimbu rsemen t to abor tion pro viders u nder the Med icaid pro gram. N.M. R ight to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998). In 1995, the Department amended Rule 766 to restrict state funding of abortions to cases certified by a physician as necessary to save the li fe of the m othe r, to te rmin ate a n ect opic preg nancy, 40 or in cases of rape or incest, id. at 846, whereas the previous version of the rule permitted state funding under a much broader definition of medical necessity that included any pregnancy having a profound negative impact upon the physical or mental h ealth of an individual. Id. at 845. Because federal law prohibits reimbursement except in cases of rape or incest, or to save the life of the mo ther, but perm its states, at their own e xpense, to re imburse a ll medically nece ssary abortio ns, id., the plaintiffs argued that the New Mexico Constitution afforded 39 Pursuant to N.M . Stat. § 27-2-12 (1993), the Department was responsible for establishing r ules to administer New Mexico s Public Assistance Act. At the time the suit was filed, the statute stated: Consistent with the federal act and subject to the appropriation and availability of federal and state funds, the medical assistance division of the human services department may by regulation provide medical assistance, including the services of licensed doctors of oriental medicine, licensed chiropractic physicians and licensed dental hygienists in collaborative practice, to persons eligible for public assistance programs under the federal act. 40 An ectopic pregna ncy occ ur[s] els ewhe re than in the cav ity of the u terus. Stedman s Medical Dictionary 611 (28th ed. 2006). -41- greater protecti on than the fed eral law . Id. at 850. The court interpreted the New Mexico ERA41 as providing that enhanced protection, and that Rule 766 did not escape heightened scrutiny merely because it was based on a physical characteristic, the ability to become pregnant and bear children, unique to females. Id. at 851, 854 -55. Beca use Rule 7 66 did no t apply the sam e standard o f medica l necessity to both males and females, the rule was presumptively unconstitutional under the ERA, and the court found no compelling justifica tion for the rule. Id. at 857. Th e court base d its reasoning on the intent behind the enactment of the ERA; it cited Ellis, 311 N.E.2d at 101, and Darrin, 540 P.2d at 889, and adopted the same analysis, that the intent of the ERA was to provid[e] something beyond that already afforded by the general language of the Equal Protection Clause. N.M. Right to Choose, 975 P.2d at 851-52. The court said: Based on our review of the text and history of o ur state constitution, we conclude that New Me xico s Eq ual Rights Amendment is a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination that prevailed u nder the co mmon law and c ivil law traditions that preceded it. As such, the Equal R ights Amendment requires a searching judicial inquiry concerning state laws that employ gender-based classifications. This 41 N.M Const. A rt. II, § 18. The N ew M exico Co nstitution inco rporated its ERA into its guarantees of due process and equal protection. The entire section reads as follows: No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the la ws. Equality of rights under law shall not be denied on account of the se x of any pers on. The e ffective da te of this amendment shall be July 1, 1973. -42- inquiry must beg in from the premise that such classifications a re presump tively unconstitution al, and it is the Sta te s burden to rebut this presumption. Id. at 853. The Department argued that Rule 766 should not have been subjected to strict scrutiny because the classification at issue was based on a physical condition unique to one sex, and thus, males and females could not possibly be situated similarly with respect to that condition. Id. at 854. The court conceded that not all classifications based on physical characteristics unique to one sex are instances of invidious discrimination, and thus, the presumptive unconstitutionality of such cl assifica tions is re buttable . Id. See Brow n, supra at 893. The court emphasized, however, that similarly situated cannot mean simply that every member of the class possesses the classifying trait, because under that test, every classification would be reasonable. N.M. Right to Choose, 975 P.2d at 854. See Joseph Tussman & Jac obus te nBroc k, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 345 (1949). Instead, the court looked b eyond the classification to the purpo se of the law. N.M. Right to Choose, 975 P.2d at 854, qu oting T ussma n & ten Brock , supra, at 346. Accord Burning Tree I, 305 Md. at 100, 501 A.2d at 841 ( [A]n inquiry into the actual facts, to determine the existence o f a discriminatory purpose and impact, is appropriate. ). Because the statutory purpose was to provide qualified person s with necessary medical care, the court found that men and women who met a general need-based test for Medica id eligibility were s imilarly situ ated, N.M. Right to Choose, 975 P.2d at 855, but that -43- Rule 766 applied a different standard of medical necessity to women than to m en. Id. at 856. The Department alleged two compelling interests, cost reduction and the protection of potential life, but the court found them self-contradictory and ina dequa te, id. at 856-57, and that Ru le 766 w as not n arrow ly tailored to achiev ing tho se intere sts. Id. at 857. In Guard v. Jackson, 940 P.2d 642 (Wash. 1997), the Supreme Court of Washington addressed the constitutionality of a w rongful d eath statute 42 that required a father to have provided regular contributions to the support of a deceased, illegitimate child as a prerequisite to have standing, but imposed n o such requiremen t on the mother. The c ourt applied the ERA to invalidate the statute, and to sever the support provision, affirming the decision of the in termed iate app ellate co urt. Id. at 645, aff g Guard v. Jackson, 921 P.2d 544 (Wash. Ct. App . 1996). The court contrasted its standard of review of sex -based classifications with the m ore lenient federal equal protection standard,43 id. at 643, and noted that under Darrin and the 42 The relevant statutory provision stated: The mother or father or both may maintain an action as plaintiff for the in jury or death of a minor child, or a child on whom either, or both, are de pendent f or suppor t: PROV IDED , That in the case of an illegitimate child the father cannot maintain or join as a party an action unless paternity has been d uly established and the father has regularly contributed to the child s support. Wash. Rev. C ode § 4.24.010 (19 73). 43 Under the more lenient federal equal protection analysis, the Supreme C ourt (contin ued...) -44- ERA, the equal prote ction/suspe ct classification test is replaced by the single criterion: Is the classification by sex discriminatory? Id. at 644. Noting there had been few exceptions to the ERA-mandated prohibition of sex-ba sed clas sificatio ns, id., the court held that the sexbased classification in the wrongful death statute did not bear even a rational relationship to the statutory purpose of excluding as plaintiffs those p arents wh o fail to supp ort their children . Id. at 645. The Supreme Court of Colorado applied the closest judicial scrutiny under that state s ERA 44 to a sex-based classification in Colorad o Civil Rights Commission v. Travelers Insurance Co., 759 P.2d 1358, 1363 (Colo. 1988). The case involved statutory and administrative prohibitions against sex discrimination, allegedly violated by an employer whose group health insurance excluded coverage for expenses incurred for normal pregnancy and childbir th. Id. at 1359. The insurer argu ed that the ex clusion did n ot discrimina te against women, because there was no risk from which m en were protected but wom en were not; howe ver, the cou rt disagr eed. Id. at 1363. Instead, the court found discrimination because the insurance plan provided full coverage for men, including conditions for which 43 (...continued) has upheld a similar Georgia wrongful death s tatute. Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed . 2d 269 (1979). A plurality of the Court applied rational basis review to affirm, because in their view mothers a nd fathers of illegitimate children are not similarly situated, id. at 353-55, 99 S. Ct. at 1747-48, 60 L. Ed. 2d at 276-77; Justice Powell concurred in the judgment, but would have applied intermediate scru tiny. Id. at 359-60, 99 S. Ct. at 1749-50, 60 L . Ed. 2d at 279-80 (P owell, J., concurring). 44 Colo. Const. art. II, § 29 ( Equality of rights under the law shall not be denied or abridged b y the state of Colorado or any of its political subdivisions on account of sex. ). -45- men were un iquely susceptible, but did not cover pregnancy, a condition unique to women. Id. The court rejected the argument that the health plan treated all pregnant people alike, and held that the definition of the recipient class was inherently discriminatory, because the classification excluded all women from reimbursement for the expenses associated with a physiolo gical co ndition that aff ects on ly wome n. Id. at 1364. E. Singer v. Hara and Anders en v. King County not Persuasive The majority in the present case considers a number of cases from our sister states as persuasive author ity. See slip op. at 33-3 5. As I hav e pointed o ut, many of th ese cases d id not address the application of equal rights amendments. Of those that did, two are most significant: Anderse n v. King C ounty, 138 P.3d 963 (Wash. 2006), and Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). Because there have been close parallels between ERA jurisprudence in Maryland and Washington State, Burning Tree I, 305 Md. at 95-96, 501 A.2d at 838-39 ; Rand, 280 Md. at 512-15, 374 A.2d at 903-04, and because that State has interpreted its ERA to be inapplicable to same-sex marriage, it is important to examine Washington case law in this area. Unlike in Ma ryland, there was a legal challenge to the statutory ban on same-sex marriages in Washington shortly after that State ad opted its ERA . Singer, 522 P.2d at 1187. Two men who had been denied a marriage license soug ht a court order to com pel a coun ty official to issue the license, and when the trial court denied their motion to show cause why the license should not be issued, the men appealed on several grounds: first, they alleged the -46- trial court erred in construing the statute to prohibit same-sex marriage; second, the appellants claimed that the marriage statute as applied violated the ERA; and third, the appellants claimed violations of the Eig hth, Ninth a nd Fourte enth Am endmen ts to the U.S. Cons titution. Id. at 1188-89. During the relevant time period, the marriage statute stated as follows: Marriage is a civil contract which may be entered into by persons of the age of eighteen years, who are otherwise capable: Provided, That every marriage e ntered into in which eith er party shall not have attained the a ge of sev enteen years sh all be void except where this section has been waived by a superior court judge of the county in which the female resides on a showing of nece ssity. Id. at 1189 n.2; Wash. Rev. Code Section 26.04.010 (1970). The Court of Appeals of Washington interpreted the statute to prohibit same-sex marriage, relying in part on the plain language of the statute, which used the word female in singular form, thereby implying that a male was contemplated as the other m arriage partner , and relying also on the context provided by closely related statutes,45 which at several points referred explicitly to male and female. Singer, 522 P.2d at 1189 & n.3. The appellate court then rejected the contention that the s tatute as applied violated the ER A. Id. at 1190-95. The appellants argued that to construe state law to perm it a man to marry a wom an but at the same time to deny him the right to marry another man is to construct an unconstitutional classification on 45 Wash. Rev. Code §§ 26.04.020-040 (1970) (prohibited marriag es); id. at § 26.04.210 (affidav its required for issuance of m arriage license). -47- account of sex, but the court agree d with the State s contention that so long as marriage licenses are denied equally to both male and female pairs, th ere wa s no ER A viola tion. Id. at 1190-91. The court determined that the definition of marriage was the legal union of one man and one woman, and that, in previous cases, this definition was dee med by the court in each case to be so obvious as not to require recitation. Id. at 1191-92. The court then concluded that the appellants had been denied a marriage license because of the recognized definition of that relationship as one which may be enter ed into only by two persons wh o are members of the opposite sex, not because of their sex; thus, there was no sex-based classification. Id. at 1192. Therefore, in the court s view, Loving v. V irginia, 388 U.S. at 1, 87 S. Ct. at 1817, 18 L. Ed. 2d at 1010, and Perez v. Lip pold, 198 P.2d 17 (Cal. 1948), the seminal cases invalidating anti-miscegenation statutes, were in applica ble. Singer, 522 P.2d at 1192 n.8 (maintainin g that Loving and Perez did not change the basic definition of marriage as the legal union of one man and one woman ). Finally, the court applied rational basis review to affirm the trial court ruling o n the fe deral co nstitution al issues . Id. at 119597. More recently, the Supreme Court of Washington was faced with the same question addressed in Singer. In Andersen v. King County, 138 P.3d at 963, a challenge to the Washington Defense of M arriage Act ( DO MA ), 46 the court considered the constitutionality 46 The Washington Defense of Marriage Act ( DOMA ) amended two statutes; the amended versions, in relevant part, are as follows: (contin ued...) -48- of the same-sex marriage prohibition. The court followed the ERA analysis of the Singer court, stating: Men and women are treated identically under DOMA; neither may marry a person of the same sex. DOM A therefore does not make any classification by sex, and it does not discriminate on account of sex. Andersen, 138 P.3d at 988, citing Singer, 522 P.2d at 1195. In this respect, the Andersen court echoe s the op inion o f the m ajority in the instant c ase. See slip op. at 34. The d ifficulty 46 (...continued) (1) Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable. (2) Every marriage entered into in which either the husband or the wife has not attained the a ge of sev enteen years is v oid except where this section has been w aived by a superior court judge of the county in which one of the parties resides on a show ing o f nec essit y. Wash. Rev. C ode § 26.04.010 (1998). (1) Marriages in the following cases are prohibited: *** (c) When the parties are persons other than a male and a female. *** (3) A marriage between two persons that is recognized as valid in another jurisd iction is valid in this state only if the marriage is not prohibited or made unlawful und er subsection (1)(a), (1)(c), or (2) of this section. Wash. Rev. C ode § 26.04.020 (1998). -49- lies in the inability of the Andersen court to recognize the true na ture of the classification at issue; by failing to distinguish between sex-based classifications and those grounde d in sexual orientat ion, the c ourt av oids ap plication of the E RA a t the outs et. Andersen, 138 P.3d at 988 (denial of marriage license not based on their sex but upon the fact they wer e both of the same sex ), citing Singer, 522 P.2d at 1195. Cf. slip op. at 47 ( While Family Law § 2-201 does not draw a distinction based on sex, the legislation d oes differe ntiate implicitly on the basis of sexual preference. ). In all significant respects, the Andersen court adopted the ERA analysis of Singer, and thus, m akes the sam e errors. Furth ermore, the majority in the present case adopts the analysis of Singer and Andersen, and therefore, adopts those errors as w ell. In my view, the Singer court erred in two significant respe cts: first, the court misconstrued the nature of the classification established by the same-sex marriage prohibition; second, the court analyzed the impact of the classification scheme as it applied to couples, rather than to individuals, and cited no authority for so doing. The Washington same-sex marriage prohibition did classify on grounds of sex, because a homosexual was permitted to marry a partner of the opposite sex, but was prohibited from marrying a partner of the same sex. Indeed, Wash. Rev. Code Section 26.04.010 (1970) as construed by the Singer court effected a classification scheme identical to that contained in Family Law Section 2-201 in the instant case. Therefore, the Singer court avoided the ERA question though an analytical error whereby the court failed to recognize that the definition of -50- marriage itself was part of a sex-based classification scheme, and thus, the court analyzed the issue under an incorrect standard of review under its own state law. An interesting distinction may be drawn between Singer and the present case. Whereas the Singer court defined marriage as the legal union of one man and one woman on the basis of case law and the overall context of the statutory scheme, 522 P.2d at 1191, the present case differs because the plain language of Section 2-201 draws a distinction between a marriage between a man and a woman, and marriages between two men or two women. Furtherm ore, Section 2-201 clea rly contemplate s the possibility of marriages between two men or two w omen, be cause it singles out for special treatment only those marriages between a man and a woman. Therefore, the langua ge of Sec tion 2-201 itself refutes the notion that the definition of marriage necessarily does not include same-sex marriages.47 In its analysis of the impact of the same-sex marriage prohibition on the appellants, the Singer court implicitly adopted the separate but equal theory relied upon by the m ajority in the instant case. Compare id. ( [T]he sta te suggests th at appellants a re not entitled to relief under the ERA because they have failed to make a showing that they are somehow being treated differently by the state than they would be if they were females. Appellants suggest, however, that the holdings in [Loving, Perez] and J.S.K. Enterprises, Inc. v. City of 47 The argument about the plain meaning of Section 2-201 applies with equal force to the Washington DOMA at issue in Andersen. -51- Lacey,[48] are contrary to the position taken by the state . We di sagree . ), with slip op. at 32 ( [Family Law Section 2-201] prohibits equally both men and women from the same conduct. ). Thus, the majority in the present case commits the same error as the Singer court: in order to find no sex-based classification in the same-sex marriage prohibition, both analyses compare the rights of a male couple to those of a female couple. The majority offers no principle d basis for a pplying equa l protection an alysis to couples rather than to individuals, for the simple reason that there is no principled basis for the distinction. In order to get around this obstacle, the majority posits the notion that Family Law Section 2-2 01 is facially neutral, and hence, the proper test for evaluating whether sex discrimination has occurred is to search for a discrim inatory pu rpose. See slip op. at 39-40. Having determined, mistakenly in my view, that Section 2-201 does not classify on the basis of sex, the majority then reaches the conclusion that the purpose of the same-sex marriage prohibition cannot be linked to a design[] to subordin ate either men to women or women to men as a class. See slip op. at 39, quoting49 Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006) . Having avoided the sex-based classification at issue, and having found no invidious purpose, th e majority in the p resent case re treats to rationa l basis review. See slip op. at 28-33. In r eaching th is result, the majority breathes life into the corpse of separate but 48 In J.S.K. Enterprises, Inc. v. City of Lacey, 492 P.2d 600 (Wash. Ct. App. 1971), a city ordinance prohibiting massagists from performing services for clients of the opposite sex was invalidated on federal equal protection and state statutory grounds. 49 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), the recent New York samesex marriage case, is inapposite to the instant case because New York lacks an ERA. -52- equal that this Court laid to rest in Burning Tree II . It saddens me to say that Judge Eldridge s worst fears have now come to fruition: The principal purpose of this opinion is to respond to the positions taken in Parts VI-IX of Chief Judge Murphy s opinion announcing the judgment of the Court, even though that opinion is not an opinion of the Court. If the view s set forth in P arts VI-VIII of Chief Judg e Murphy s opinion were in the future to be adopte d by a majority of this Court, the effectiveness of the Equal Rights A mendm ent to the M aryland Con stitution wou ld be substantially impaired. Burning Tree I, 305 Md. at 88, 501 A.2d at 835. F. Strict Scrutiny and the Present Case Our cases stand for the pro position that a ll state action that draws sex-based distinctions, regardless of whe ther such action directly impos[es] a b urden or confer[s ] a benefit entirely upon either males or females, id. at 95, 501 A.2d at 838 (opinion of Eldridge, J.), implicates the ERA and m ust be su bjected to strict sc rutiny. See In re R oberto d.B., 399 Md. 267, 279 n.13, 923 A.2d 115, 122 n.13 (2007) ( T his Court has applied a strict scrutiny standard when reviewing gender-based discriminatio n claims. ); Murphy, 325 Md. at 357 n.7, 601 A.2d at 109 n.7 ( I n Maryland , because o f the Equ al Rights A mendm ent to the Marylan d Con stitution . . .,classifications based on gender are suspect and subject to strict scrutiny. ); Burning Tree II , 315 Md. at 293, 554 A.2d at 386 ( In [Burning Tree I], . . . a majority of this Court took the position that the enactment of legislation which on its face draws classifications based on sex is state action sufficient to invoke the E.R .A. ). Until toda y, this Court has never shied away from that standard when applying the ERA. See -53- Giffin, 351 Md. at 148, 716 A.2d at 1037 ( [T]he [Equal Rights] Amendment can only mean that sex is not, and can not be , a factor in the enjoyment or the determination of legal rights. ); id. at 149, 716 A.2d at 10 37 ( [T]h e Equal R ights Am endmen t flatly prohibits gender-based classifications , absent sub stantial justification, whether contained in legislative enactments, governmental po licies, or by application of commo n law rules. ); Burning Tree II, 315 M d. at 295, 55 4 A.2d a t 387 ( Plain ly, under prior ho ldings of th is Court, state action providing for segregation based upon sex, absent substantial justification, violates the E.R .A., just as segrega tion based u pon race v iolates the Fo urteenth A mendm ent. ); Rand, 280 Md. at 511-12, 374 A.2d at 902-03 ( The words of the E.R.A. are clear and unambiguous; they say without equivocation that Equality of rights under the law shall not be abridged or denied because of sex. This language mandating equality of rights can only mean that sex is not a factor. ). In a recent case we reviewed the constitutionality of a statutory scheme50 permitting challenges to paternity, and applied strict scru tiny, In re Roberto d.B., 399 Md. at 279 n.13, 923 A.2d at 122 n.13, to hold that the statutes m ust be c onstrue d in a se x-neut ral fash ion. Id. at 283, 923 A.2d at 12 4. On its fac e, Title 5, Subtitle 10 of the Family Law Article contemplated only the right of a man, fo und not g enetically linked to a child, to petition a 50 Md. Code (19 84, 2 006 Rep l. Vo l.), §§ 5-10 01 to -104 8 of the F amil y Law Article. -54- court to set aside a declaration of patern ity. 51 We applied the doctrine of constitutional avoidance to infer a jud icial gloss to a statutory scheme that was silent to the possibility that a gestational m other could challen ge ma ternity. Id. at 278-79, 283-84, 923 A.2d at 121-22, 124-25. Our analysis focused on the unequal application of Subtitle 10 to a particular woman, and was not predicated on a group-by-group comparison. We held that the ERA mandated a focus o n the uneq ual treatment of an individual under the law; just as the Supreme Court applied strict scrutiny to state-sanctioned discrimination against persons of all races on a purpo rtedly equ al basis, Powers, 499 U.S. at 410, 111 S. Ct. at 1370, 113 L. Ed. 2d at 4 25; Loving, 388 U.S. at 8, 87 S. Ct. at 1822, 18 L. Ed. 2d at 1016,52 so too have 51 Section 5-1038 (a )(2)(i) of the Family Law Article, Maryland Code (1984, 2006 R epl. Vol.), read s in relevant p art: A declaration of paternity may be modified or set aside: *** 2. if a blood or genetic test done in accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named as the father in the order. 52 In Powers, the Court said [t]he sugg estion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theo rem, Plessy v. Ferguson, 163 U.S. 537[, 16 S. Ct. 1138, 41 L. Ed. 256] (1896 ). Powers, 499 U.S. at 410, 111 S. Ct. at 1370, 113 L. Ed. 2d at 425. In Loving, the Court was equally emphatic, emphasizing that the State s proffer of equal application did not shield the statute from strict scrutiny. 388 U.S. at 8, 87 S. Ct. at 1822, 18 L. Ed. 2d at 1016 ( Because we reject the notion that the mere equal application of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Am endment s proscription of all invidious racial discriminations, we do not accept the State s contention that these statutes should be upheld if there is any possible basis for concluding that they (contin ued...) -55- we held that the e qual application of discriminatory laws does not preclude strict scrutiny under Article 4 6. In re Roberto d.B., 399 M d. at 282-84 , 923 A.2d at 124-25 ; Giffin, 351 Md. at 148-49 , 716 A.2d at 1037; Burning Tree II , 315 Md. at 293-95, 554 A.2d at 386-87; Rand, 280 Md. at 515-16, 374 A.2d at 904-05. In the instant case, the State argues on the basis of the equal application theory of the ERA that Section 2-201 does not implicate Article 46. In its brief, the State points to the dissenting opinion of Chief Ju dge M urphy in Burning Tree I, 305 Md. at 64, 501 A.2d 822, to support its view that Section 2 -201 passes mu ster because its prohibitions burden both sexes equally. To bolster its argument, the State quotes from Giffin, 351 Md. at 149, 716 A.2d at 1037, which in turn cites the opinion of Chief Judge Murphy in Burning Tree I. The State omits the following key portion from Giffin: [T]he equality between the sexes demanded by the Maryland Equal Righ ts Amen dment fo cuses on rig hts of indiv iduals under the law, which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens. Id. Thus, the passage from Giffin does not support the State s argumen t; neither doe s the Cou rt s holding in the case, as I exp laine d pre viou sly. Furthermore, as I have explained in great detail, the opinion of Chief Judge Murphy in Burning Tree I was a minority view insofar as its theory of the scope and effect of the ERA was conce rned. Therefore, the State s argument is fundamentally misplaced. Likewise, the 52 (...continued) serve a rational purpose. ). -56- State s reliance on Cannon v. Cannon, 384 Md. 537, 572 n.19, 865 A.2d 563, 583 n.19 (2005), is unpersuasive. Although Cannon was correct about the inapplicability of the ERA to the confidential relationship and concomitant duty to disclose inhering in antenuptial agreements, the reason for the legally imposed duty arises out of fundamental principles of contract law. Id. at 556 n.8, 570-71, 865 A.2d at 573 n.8, 582-83 (contrasting antenuptial and post-marital agreements, and noting that the ERA invalidated gender-based classification only in the latter case). To summa rize, in a long line of cases extending back to Giffin, Burning Tree I and II, Condore, Kline and Rand, we have consistently interpreted the ERA to require tha t the rights of any person cannot depend on sex-based classifications, unless the State demonstrates a compelling governmental interest, and then only if the classification is narrowly tailored and precisely limited to achieving that compelling interest. Today this Court denies the commitment to equal righ ts made by the General Assembly and ratified by the P eople of th is State in 1972. As we said in Giffin, 351 Md. at 148-49, 716 A.2d at 1037, and iterated in In re Roberto d.B., 399 Md. at 281, 923 A.2d at 123-24: The basic principle of the Maryland Equal Rights A mendm ent, thus, is that sex is not a permissible factor in determining the legal rights of w omen, or m en, so that the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other[;] that amendment generally invalidates governmental action which imposes a burden on, or grants a benefit to, one sex but not the othe r one. (emphas is added). Clearly, this language means that the analysis must focus on the -57- individual whose rights are infringed by the sex-bas ed classifica tion, becaus e rights accrue to the individual, not to couples, or to some abstract group entity. We emphasized that equal rights between the sexes are personal, not group, rights: [T]he equality between the sexes demanded by the Maryland Equal Rights Ame ndment f ocuses on rights of ind ividuals under the law, which encompasses all forms of privileges, immunities, benefits an d respons ibilities of citizens . As to these, the Maryland E.R.A. absolutely forbids the determination of such rights, as may be accorded by law, solely on the basis of one s sex, i.e., sex is an impermissible factor in making any such d etermin ation. Id. at 281-82, 923 A.2d at 124, quoting Giffin, 351 Md. at 149, 716 A.2d at 1037 (alteration in original). Th e majority in the present case deliberately misconstrues the passage quoted above through se lective quo tation, conve niently omitting the second sentence, to support its narrowly constrained view of th e ERA as someh ow perm itting separate bu t equal in matters of sex disc riminatio n. See slip op. at 25-26. Its strained interpretation ignores what until today had be en well-settle d in Maryland: the ERA is intended to address the rights of individuals, not the rights of men and women as classes. See slip op. at 25 (emphas is in original). Our predecessors stated a similar idea in Rand, 280 Md. at 511-1 2, 374 A.2d at 902-03: The words of the E.R.A. are clear and unambiguous; they say without equivocation that Equality of rights under the law shall not be a bridge d or den ied bec ause of sex. I repeat: the words of the ERA are clear and unambig uous and can only me an that the righ ts of any person under the law cannot be abridged because of sex. The majority today pursues -58- a results-based jurisprudence that distorts our case law construing the ERA, and in so doing, dilutes its effe ct. II. The State s Arguments Against Applicability of Article 46 The State focu ses most of its argumen t against app lication of strict scrutiny to the same-sex marriage ban, and I address those arguments now. First, the State argues that the legislative history of Article 46 and Family Law Section 2-201 compels the conclusion that the same-s ex marriag e ban is con stitutional. The State points to the voting records surrounding Article 46 of the Declaration of Rights and Section 1 of Article 62, Maryland Code (1957, 1979 Repl. Vol.), the predecessor to Family Law Section 2-201,53 to conclude that the framers of the ERA understood and intended that the same-sex marriage ban was compatible with the ERA. Thus, in 1972, House Bill 687 , a measure to add the ERA to the Maryland Declaration of Rights, passed the House of Delegates by the overwh elming m argin 120-1 , see 1972 Maryland House Journal 1281-82 (Mar. 22 , 1972); the S enate voted 39-0 in favor. See 1972 Maryland Senate Journal 1899 (Apr. 1, 1972). In 1973, the same legislature passed Senate B ill 122, a measure 53 1973 Maryland Laws, Chapter 213 amended Section 1 of Article 62, Maryland Code (1957, 1972 Repl. Vol.), to read: O nly a marriage between a man an d a wom an is valid in this State. If an y person with in this State shall marry within any of the degrees of kindred or affinity exp ressed in the following table, the ma rriage shall b e void. See Md. Code (1957, 1979 Repl. Vol.), Art. 62, § 1. The following table refers to Section 2 of Article 62 (recodified as Section 2-202 of the Family Law Article), the statute that lists the prohibited degrees o f consan guinity and affinity. The first sentence of Section 1 o f Article 62 is identical to the current statute , Section 2-2 01 of the F amily Law Article, M aryland Code (1984 , 2006 Repl. Vo l.). -59- adopting the sam e-sex m arriage ban. T he me asure p assed th e Hou se by 112 -1, see 1973 Maryland House Journal 2743 (Apr. 1, 1973 ); the Se nate vo ted 37- 1 in fav or. See 1973 Maryland Senate Journal 273 (Jan. 24, 1973). Detailed comparison of the roll call votes indicates that 94 Delegates voted in favor of both measures; if Delegates who co-sponsored but did not vo te for the E RA are included, the n the total nu mber of D elegates in fa vor of bo th the ERA and the same-sex marriage ban was 100 out of a total of 142.54 Out of 43 Senators, 33 voted both for the ERA and the same-sex marriage ban. From these facts the State concludes that those legislators who approved [the ERA] in 1972 did not see anything inconsistent about their decision in 1973 to vote for legislatio n cla rifying that the State recogn izes on ly a marria ge betw een a m an and a wom an. The difficulty with this argument is two-fold. First, the State offers no basis for distinguishing the situation in volving the unconstitutio nal statute 55 enacted by the General Assemb ly in 1974 and invalidated in Burning Tree I from that which is presented here. Clearly Chapter 870, the discriminatory anti-discrimination provision in Burning Tree I, was nearly contemp oraneou s with Sec tion 1 of A rticle 62 and Article 46; nevertheless, no one seriously contended that mere temporal nearness could save Chapter 870 from invalidation. The State is forced to combine the nearly contemporaneous enactment of the same-sex 54 In 1972-73, the total number of Delegates was 142, and the number of S enators was 4 3. See 1969 Md. Law, Chap. 785, amending Md. Const. art. III, § 2. 55 1974 M d. Law s, Chap . 870. See Burning Tree I, 305 Md. at 56, 501 A.2d at 817. -60- marriage ban and the ERA with the additional rule of constitutional interpretation elaborated in Hornb eck v. Som erset Cou nty Board of Education, 295 Md. 597, 620, 458 A.2d 758, 770 (1983): In this regard, it ha s been he ld that a contemporaneous construction placed upon a particular provision of the Maryland Constitution by the legislature, acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period, furnishes a strong presumption that the intention is rightly interpreted. I find this argument unpersuasive in the present context. The relevant time frame in the instant case extends only to 1972, not to a very early period, because [t]he adoption of the E.R.A. in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classifications. Rand, 280 Md. at 515-16, 374 A.2d at 905. Therefore, the undeniab le fact that marriage has always been recognized only between a man and a woman, although undoubtedly acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period, carries no greater legal weight in light of the ERA than the multitude of sex-based common law rules and presumptions that have been invalidated since 1 972. See, e.g., Giffin, 351 Md. at 133, 716 A.2d at 1029; Condore, 289 M d. at 516, 42 5 A.2d a t 1011; Kline, 287 Md. at 585, 414 A.2d at 929; Rand, 280 Md. at 508, 374 A.2d at 900. In a related vein, the State argues that the plain meaning of Article 46 and the case law interpreting it foreclose the interpretation given by the Appellees and adopted by the Circuit Court, that Family Law Section 2 -201 classifies on the basis of sex. In the State s view, -61- Section 2-201 is facially neutral and simply does not constitute sex discrimination. The State s argument focu ses on discrimination based on sexual orientation, a classification indisputably within the scope of Sec tion 2-2 01. Relying on the statutory scheme established by the Commission on Human Relations, Article 4 9B, M aryland Cod e (1957, 20 03 Rep l. Vol.), as amended, 2001 Maryland Laws, Chapter 340,56 the State maintains that the General 56 Representative excerpts from some of these statutes include: (a) Sexual orientation defined. In this subheading, sexual orientation means the identification of an individual as to male or fe male hom osex ualit y, hete rosexuality, or bisexuality. (b) Prohib ited. It is unlawful for an ow ner or operator of a place of public accommodation or an agent or employee of the owner or oper ator, bec ause of the race , creed, sex, age, color, national origin, marital status, sexual orientation, or disability of any person, to refuse, withhold from, or de ny to such person any of the accommodations, advantages, facilities and privileges of such place of public accommodation. Md. Code (1957, 2003 Repl. Vo l.), Article 49B , § 5. From a related statute p rohibiting discrimination in public accommodations: (a) In general. It is unlawful for any person, business, corporation, partnership, copartnership or asso ciation or any other individual, agent, employee, group or firm which is licensed or regulated by a unit in the Departme nt of Labor, Licensing, and Regulation as set out in § 2-108 of the Business Regulation Article to refuse, withhold from, deny or discriminate against any person the accommodations, advantages, facilities, privileges, sales, or services because of the race, sex, creed, color, national origin, marital status, sexual orientation, or disability of any person. Id. at § 8. Section 14 uses the phrase, race, color, religion, ancestry or national origin, sex, (contin ued...) -62- Assemb ly has demonstrated repeatedly its ability to distinguish sex from sexual orientat ion, and because Article 46 is silent on sexual orientation, the logical conclusion is that Family Law Section 2-201 was never intended to fall inside the scope of Article 46. The majority adop ts this interpretation, stating that [t]o accept [Appellees ] contention that Family Law § 2 -201 discrim inates on th e basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assembly and the State s voters who enacted and ratified, respectively, the amendment. See slip op. at 33. This argu ment is entire ly irrelevant to the question of constitutionality of sex-based classifications under Article 46 and hence, is a classic red h erring. Altho ugh the m ajority asserts that Family Law Section 2-201 draws classifications based on sexual orientation, on its face the statute actually classifies on the basis of sex, not sexual orientation. Section 2201 does not prohibit hom osexuals from m arrying; in fact, a homosexual m ale may marry either a heterosexual or homosexual female, and a homosexual female may marry either a heterosexual or homosexual male. Only by virtue of a person s sex is he or she prohibited from marrying a person of the same sex. Clearly, Section 2-201 draws distinctions based on sex and thus, the issue of sexual orientation simply does not enter into an ERA analysis. The Appellee s in the prese nt case allege that Section 2-201 h as a discriminatory 56 (...continued) age, marital status, sexual orientation, or disability, in a declaration of policy governing employment discrimination. Section 16 use s similar langu age in a relate d statute enumerating unlawful employment practices. Sections 19 and 22 use similar language in the context of housing discrimination. -63- effect, regardless of its alleged facial neutrality, and that the landmark Supreme C ourt decision in Loving, 388 U.S. at 1, 87 S. Ct. at 1817, 18 L. Ed. 2d a t 1010, sho uld control the outcome here. Loving involved the State ass ertion of an analogou s allegedly neu tral, generally applica ble statu te proh ibiting m iscegen ation. Id. at 2, 87 S. Ct. at 1818, 18 L. Ed. 2d at 1012 . The Co urt applied stric t scrutiny to the V irginia statute de spite its ostensib ly equal applica tion to b oth race s. Id. at 9, 87 S. Ct. at 1822, 18 L. Ed. 2d at 1016 ( In the case at bar, . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Am endmen t has traditiona lly required of sta te statutes draw n accordin g to race. ). Not only did the Court weigh the long history of white supremacy and racial segregation heavily agains t the State, but the Court f ound the a nti-miscege nation statute applied only to interracial marriages involving whites, and thus, was not facially neutral as asserted by Virgin ia. Id. at 11-12, 87 S. Ct. at 1823 , 18 L. Ed. 2d at 101 7-18. The Co urt reached its holding independently of the issue of discriminatory intent, however, find[ing] the racial classifications in these statutes repugnan t to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the integrity of all races. Id. at 11 n.11, 87 S. Ct. at 1823 n.11, 18 L. Ed. 2d at 1018 n.11. Clearly, the Court found no legitimate purpose in the racial classifications themselves, regardless of the proffered justifica tion. Id. at 11, 87 S. Ct. at 1823, 18 L . Ed. 2d at 1017 ( T here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. ). -64- The State attempts to distinguish Loving from the instant case on the basis that the same-sex marriage ban does not evince the intent to impose segregation based on sex. The State s position is reinforc ed by amici, The Maryland Catholic Conference, who argue that anti-miscegenation statutes were intended to keep persons of different races separate ; marriage statutes, on the other hand, are intended to bring persons of the opposite sex together. (emphasis in original). This argument begs the question whether Family Law Section 2-201 is facially neutral; it is well-settled that the question of discriminatory intent does not arise un less the thresh old question of facial ne utrality is answered in the affirmative. See, e.g., Hunt v. Crom artie, 526 U.S . 541, 546, 1 19 S. Ct. 1545, 1549, 143 L. Ed. 2d 731, 738 (199 9) ( Wh en racial class ifications are e xplicit, no inquiry into le gislative purp ose is necessary. ); Shaw v. Reno, 509 U .S. 630 , 642, 11 3 S. Ct. 2 816, 28 24, 125 L. Ed. 2d 511, 525 (1993) ( No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. ). Here, there is no plausib le assertion tha t Section 2-2 01 accrue s only to the benefit of either men or women as a class. Just as in Rand, Kline, Condore, Burning Tree I and Giffin, however, there is sex discrimination at the level of the individual who wishes to marry but is precluded from doing so because of the statute. Thus, a man who wishes to marry another man is prevented from choosing his marriage partner purely on the basis of sex; likewise, a woman who wishes to marry another woman is prevented from choosing her marriage partner purely on the b asis of s ex. Manifestly, Section 2-201 classifies on the basis of sex; because -65- it would be necessary to consider the underlying legislative intent only if the same-sex marriage ban did not draw sex-based distinctions, the question of legislative intent is irrelevant. Just as in Loving, it is the nature of the classifications themselves that implicates strict scru tiny. III. Application of the Correct Standard to the Instant Case I turn now to consider whether Family Law Section 2-201 ( Only a marriage between a man and a woman is valid in this State. ), survives strict scrutiny. A statutory classification will be upheld under strict sc rutiny only if it furthe r[s] a com pelling state inte rest, and if it is deemed to be suitably, or narrow ly, tailored to achie ving th at goal. Koshko v. Haining, 398 Md. 404, 438, 921 A.2d 171, 191 (2007); Burning Tree II , 315 Md. at 296, 554 A.2d at 387; Hornbeck, 295 Md. at 641, 458 A.2d at 781. Regardless of the strength of the governmental interest at stake, statutory clas sifications su bject to strict scrutiny mus t fit this compellin g goal so c losely that there is little or no possibility that the motive for the classification was illegitim ate . . . prejudice or stereotype. Adarand Constructors, Inc. v. Pena, 515 U .S. 200 , 226, 11 5 S. Ct. 2 097, 21 12, 132 L. Ed. 2 d 158, 1 81 (1995), quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854, 882 (1989). In other words, the classification at issue must fit with greater precision than any alternative mean s. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6, 106 S. Ct. 1842, 1850 n.6, 90 L. Ed. 2d 260, 272 n.6 (1986), citing John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev . 723, 727 n. 26 (197 4). -66- An example of a compelling state interest that survived strict scrutiny under the ERA is the sex-based classification scheme inherent in the crime of rape. At common law and under the current statutes,57 it is impossible for a woman to commit first or second degree 57 See, e.g., Md. Code (2002, 2006 Supp.), § 3-303 of the Criminal Law Article, entitled Ra pe in the first d egree, w hich states in re levant part: (a) Prohib ited. A person may not: (1) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; and (2)(i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; (ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime; (iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, im minently will be subject to death, suffocatio n, strangulatio n, disfigurem ent, serious physical injury, or kidnapping; (iv) commit the crime while aided and abetted by another; or (v) commit the crime in connection with a burglary in the first, second, or third degree. Similarly, Section 3-304 of the Criminal Law Article, entitled Rape in the seco nd deg ree, states in releva nt part: (a) Prohibite d. A person may not engage in vaginal intercourse with another: (1) by force, or the threat of force, without the consent of the other; (2) if the victim is a mentally defe ctive individu al, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defe ctive individu al, a mentally incapacitated individual, or a physically helpless individual; or (contin ued...) -67- rape other than a s a principal in the second degree, because vaginal intercourse is required,58 see, e.g., Wilson v. State, 132 Md. A pp. 510, 517-18, 75 2 A.2d 1250 , 1254 (2000); nevertheless, this sex- based d istinction has bee n uphe ld unde r strict scru tiny. See, e.g., People v. Green, 514 P.2d 769, 770 (Colo. 1973) (upholding Colorado rape statute 59 against 57 (...continued) (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim. Despite the sex neutral term person whose behavior is proscribed , the context m akes it clear that the only person capable of the enum erated c rimes is a male. See Brooks v . State, 24 M d. App . 334, 33 7-38, 3 30 A.2 d 670, 6 72, cert. denied, 275 Md. 746 (1975). 58 Because vaginal inte rcourse is required, necessarily [p]enetration, however slight is an essential element of the crime of rape. Craig v. Sta te, 214 Md. 546, 547, 136 A.2d 243, 244 (1957). 59 The appellant was convicted of first degree rape under the following statute: Rape . (1) (a) Rape is an act of sex ual intercourse, accomplished with, by or between a male and a female person or male and female p ersons, wh ere such fe male perso n is not the wife of the principal perpetrator, as distinguished from accessory to such offense, under any of the following circumstances: (b) By the male person w here the female person is unmarried, and where the female person is under, and the m ale person is over the age of eighteen years; and this is rape in the first degree. People v. Green, 514 P.2d 769, 77 0 (Colo. 1973); C olo. Rev. Stat. § 40-2-25 (1 )(a)-(b) (1963). A female could be charged only under subsection (k) of the same statute for the lesser crime of third degree rape: (k) By the female person of whatever age, not being an accessory as defined in subsection (1)(l), of this section, where (contin ued...) -68- an ERA challenge). Other example s of sex-ba sed classifica tions that we re upheld u nder an E RA an alysis include prohibitions on public n udity that prohibit display of female breasts, City of Sea ttle v. Buchanan, 584 P.2d 918 (Wash. 1978); City of Albuquerque v. Sachs, 92 P.3 d 24 (N .M. Ct. App. 2004); Messina v. State, 904 S.W.2d 17 8 (Tex. App. 19 95), and affirmative action programs designed to alleviate the effects of past d iscrimin ation. Brackett v. Civil Serv. Comm n, 850 N.E .2d 533 (M ass. 2006); S.W. Wash. Chapter, Nat l Elec. C ontractors Ass n v. Pierce C ounty, 667 P.2d 1092 (Wash. 1983). Thus, strict scrutiny of sex-based classifications under the ERA need not always be strict in the ory, but fa tal in fac t. Adarand, 515 U.S. at 237, 115 S. Ct. at 2117, 132 L. Ed. 2d at 188 (citation omitted) (holding that minority set-asides must pass strict scrutiny, but emphasizing that benign discrimination may constitute a com pelling state interest). Because the early equal protection cases typically examined racial classifications, subsequent jurisprudence in the area of gender discrimination necessarily ana logized to the 59 (...continued) the male person is under the age of eighteen years, where such sexual intercourse is had at the so licitation, induce ment, importuning or connivance of such fem ale person, or where such female p erson wa s at the time of commission of such offense, a free, com mon, pub lic or clandes tine prostitute, and the male perso n was, prio r and up to the time of commission of the offense, of good moral cha racter; and th is is rape in the third degree. Green, 514 P.2d at 770; C olo. Rev. Stat. § 40-2-25 (1 )(k) (1963). -69- preceden ts involving racial discrimination. One point of attack by opponents of equal rights for women has been to emphasize the limitations of the analogy between race and sex classifications; equal rights opponents have distinguished racial discrimination from sexbased discrim ination o n the ba sis of the inheren t differe nces be tween the sex es. See Brown, supra at 893-96. See also U nited States v . Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2276, 135 L. Ed. 2d 735, 752 (1996) (noting that inherent differences are no longer accepted as a basis fo r racial and n ational origin classifications , but that [p]hysical differences between me n and wom en . . . are enduring ). Evolution of the law in this area has been, in no sma ll measure, a process of sifting truly substantial gender differences from distinctions that masquerade as such but in reality merely embody traditional, often inaccurate, assumptions about the proper roles of men and women. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726, 102 S. Ct. 3331, 3337, 73 L. Ed. 2d 1090, 1099 (19 82). The movement among th e several state s to enact eq ual rights am endmen ts was mo tivated, in part, to counterac t the tenden cy of courts to extend deference to sexual stereotypes cloa ked as truly substantial differe nces. B rown , supra at 879-82. There can be no doubt that M arylanders overwh elmingly adopted this approach through enactment of the ERA . See Rand, 280 Md. at 515-16, 374 A .2d at 904-05 ( [W ]e believe . . . the people of Maryland are fully committed to equal rights f or men an d wom en. The ad option of the E.R.A. in this state was intended to, and did, dra stically alter traditional views of the validity of sex-based classifications. ). The only operative distinction between sex-based and race-based classifications -70- obtains from the inherent differences between the sexes ; thus, some sex-based classifications may survive strict scrutiny whereas comparable race-based classifications could not be sustained. Burning Tree I, 305 M d. at 98, 501 A .2d at 840. Ho wever, this distinction has been construed narrowly, generally applying only to cases of obvious anatomical differences. For example, the E RA ha s been interp reted to perm it separate bathro oms fo r each s ex in pu blic acc omm odation s, id. at 98 & n.8, 501 A.2d at 840 & n.8, and rape sta tutes tha t punish only men . Brooks v. State, 24 Md. App. 334, 337-39, 330 A.2d 670, 672-7 3, cert. denied, 275 Md. 746 (1975 ); 74 O p. Att y G en. 19, 2 2 (Md . 1989) . See also People v. Barger, 550 P .2d 128 1 (Colo . 1976); Green, 514 P.2d at 770. Chief Judge Murphy suggested, if anything, an even narrower construction of the inherent differences exception to strict sc rutiny. See Burning Tree I, 305 M d. at 64 n .3, 501 A .2d at 82 2 n.3 ( Dispara te treatment on account o f physical cha racteristics uniq ue to one s ex is genera lly regarded as beyond the reach of equal rights amen dmen ts. ). Accord Brow n, supra at 893 ( The fundamental legal principle underlying the Equal R ights Am endmen t, then, is that the law must deal with particular attributes of individuals, not with a classification based on the broad and im permis sible attrib ute of s ex. This principle, however, does not preclude legislation (or other official action) which regulates, takes into account, or otherwise deals with a physical characteristic unique to o ne sex. ). The implications of the inherent differences between males and females for the present case are unclear. There would appear to be a colorable argument that traditional -71- marriage arose out of an inchoate recognition that reproduction of our species and thus, the very f uture exi stence of society, is inextricably linked to the state interest in promoting the formation of stable, nurturing families be ginning w ith the intimate sexual union of a man and a wom an. Fornshill v. Murray, 1 Bland 479, 481 (1828) ( Marriage has been considered among all nations as the mo st impo rtant con tract into which individ uals can enter, as the parent no t the child of civ il society. ) (emphasis added). With regard to narrow tailoring, the Burning Tree cases themselves illustrate the concept through its exact opposite. The anti-discrimination provision invalidated in Burning Tree II, for instance, permit[ted] a club to engage in periodic sex discrimination in any of its facilities for any reason at all ; consequently, the statute failed the narrow tailoring requireme nt. 315 M d. at 296 , 554 A .2d at 387. The touc hstone of narrow ta iloring is whether, when faced with other, reasonable ways to achieve [its] goals with a lesser burden on constitutionally protected activity, the State has rejected the way of greater interference and chosen instead the least burden some m eans to further its interes t. Dunn v . Blumstein , 405 U.S. 330, 34 3, 92 S. Ct. 995, 1003 , 31 L. Ed. 2d 274 , 285 (1972). It is critical to bear in mind the allocation of burdens under the various equal protection review standards. R egardless of the applicab le standard, the plaintiff always bears the initial burden of production, just as in any other civil cause. Under rational basis review, the plaintiff also shoulders the burden of persuasion, because rational basis review presumes the validity of the challen ged cla ssificatio n. See, e.g., Heller v. Doe, 509 U.S. 312, 320-21, -72- 113 S. Ct. 2637, 2643, 125 L. Ed. 2d 257, 271 (1993) ( A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classific ation. . . . A statute is presumed constitutional, and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. ) (citations omitte d) (alteration in original). Un der both intermediate and strict scrutiny, on the other hand, the government has the burden of justifying the cha llenged classific ations. See, e.g., Johnson v. California , 543 U.S. 499, 505, 125 S. Ct. 1141, 1146, 160 L. Ed. 2d 949, 958 (2005) ( Under strict scrutiny, the government has the burden of proving that racial classifications are narrowly tailored measures that further compelling governmental interests. ), quoting Adarand Constructors, Inc., 515 U.S. at 227, 115 S. Ct. at 2113 , 132 L. Ed . 2d at 182; United Sta tes v. Virginia , 518 U.S. at 533, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751 (U nder intermediate scrutiny, [t]he burden of justification is demand ing and it rests entirely on the State. ); Hornbeck, 295 Md. at 641, 458 A.2d at 781 ( Laws which are subject to [strict scrutiny] violate the equal protection guarantee unless the State can demonstrate that the statute is necessary to promote a compelling gove rnmental interest. ). The compelling interests asserted in the State s brief are (1) maintaining the same definition of m arria ge as that m andated by the Federal DOMA, 1 U.S.C. § 7 (2006); (2) ensuring that dramatic cultural changes be adopted through vigorous public debate culminating in legislative decisions; and (3) maintaining the traditional institution of -73- marriage because it is so deeply ingrained in our history and traditions. The first state interest ex presses a ge neral public policy of prom oting com ity in relations with our sister states and the federal government; undoubtedly that interest could comport with rationa l basis review, because the desire to conform Maryland laws with those of other jurisdictions has been a touchstone of our jurisprudence in many areas of the law. See, e.g., Section 9.5-101 et seq. of the Family Law Article, Maryland Code (1984, 2006 Repl. Vol.) (Maryland Uniform Child Custody Jurisdiction and Enforcement Act); Section 7-101 et seq. of the Criminal Procedure Article, Maryland Code (2001 ) (Uniform Postconviction Procedure Act); Section 11-1201 et seq. of the Commercial Law Article, Maryland Code (1 975, 200 5 Repl. Vol.) (Maryland Uniform Trade Secrets Act). The policy of promoting uniform ity is not confined to our statutory law; our cases are re plete with instances where we look to our sister states for guidance in interpreting our own common law. See, e.g., Burning Tree I, 305 Md. at 66-70, 95-98, 501 A.2d at 823-25, 838-40. The examples illustrating the point are literally too numerous to mention. The fundam ental difficu lty with the State s argument, however, is that it has pointed to no case, no r am I aw are of a sing le case, wh ere this Cou rt has held tha t the desire to conform our laws to those of other jurisdictions rises to the level of a compelling interest. Indeed, the State s position inverts the fundamental legal hierarchy, because the values embodied in the Maryland Constitution take precedence over every Act of the General Assembly. The only recognized exception, inapplicable to the present case, is where our -74- organic law co nflicts w ith the U .S. Con stitution it self. Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (state constitutional amendment prohibiting any governmental action to afford protection to homosexuals held violation o f Fourteen th Amendment Equal Pro tection Clau se); Hunter, 471 U.S. at 227, 233, 105 S. Ct. at 1919-20, 85 L. Ed. 2d at 227-28, 231 (facially neutral state constitutional provision disenfranchising disproportio nate numbers of Africa n-Ame ricans held in violation of Fourteen th Amendment Equal Protection C lause). The State s argu ment that the re is a compelling interest in ensuring that social and economic change of this type is accomplished through a robust public debate, through the legislative process is w holly without m erit. If we w ere to accep t this argume nt, we w ould be ignoring the fact that robust public debate resulted in the adoption of the ERA. Moreover, the lone Maryland case cited by the State pertaining to legislative deference, Sugarloaf Citizen s Ass n v. Gudis, 319 M d. 558, 573 A.2d 13 25 (1990 ), is easily distinguished from the instant case, because that case dealt with a county ethics law purporting to confer authority on a c ourt to void le gislation wh enever it tho ught the pu blic interest so required, which w e determined violated the c onstitutional separation of pow ers mandated by Article 8 60 of the Declaration of Rights. Here we deal with a constitutional 60 That the Legislative, Executive and Judic ial powers of Gov ernment o ught to be forever separate and distinct from each other; and no person exercising the functions of one of sa id D epar tmen ts shall as sum e or d ischarge the d uties of an y other. Md. C onst., Decl. o f Righ ts, art. 8. -75- challenge to legislative ac tion; our auth ority to construe th e Maryland Constitution is mandated by Article IV, Section 161 of our Cons titution. See Galloway v. S tate, 365 Md. 599, 611, 781 A.2d 85 1, 858 (2001) ( If, how ever, a statute violates a mandatory provision of the Constitution, we are required to declare such an act unconstitutional and void. ). This proposition has been well-settled since the earliest days of our statehood; one year before Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), Chief Judge Jeremiah Townley Chase of the Maryland General Court stated the doctrine of judicial review in terms that s till rin g true tod ay: The power of determining finally on the validity of the acts of the Legislature cannot reside with the Legislature, because such power would defeat and render nugatory, all the limitations and restrictions on the authority of the Legislature, contained in the Bill of Rights and form of government, and they would become judges of the validity of their own acts, which would establish a despotism, and subvert that great principle of the Constitution, which declares that the powers of making, judging, and executing the law, shall be separate and distinct from e ach other. *** It is the office an d provinc e of the C ourt to decid e all questions of law which are judic ially brought be fore them , according to the established mode of proceeding, and to determine whether an Act of the Legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant 61 The Judicial power of this State is vested in a Court of Appeals, such intermedia te courts of a ppeal as the General A ssembly ma y create by law, C ircuit Courts , Orphans Courts, an d a District Court. These Courts shall be Courts of Record, and each shall have a seal to be used in the authentication of all process issuing from it. Md. C onst. art IV, § 1. -76- to the power vested by the Constitution in the Legislature; for if it is not the result of emanation of authority derived from the Constitution, it is not law, and cannot influence the judgment of the Court in the decision of the question before them. Whittington v. Polk, 1 H. & J. 236, 243 -44 (1802). The final argument posed by the State is the public s direct interest in marriage as an institution of transcendent importance to social welfare. Picarella v. Picarella, 20 Md. App. 499, 504, 316 A.2d 826 , 830 (1 974), ci ting to, in ter alia, Fornshill, 1 Bland at 479. Indeed, in Fornshill our predecessors expressed the view that [m]arriage has been considered among all nations as the mos t important c ontract into w hich individ uals can enter, as the parent n ot the child o f civil society. 1 Bland at 481. Thus, it has been recognized from time immemorial that marriage preceded its legal recognition; i.e., marriage originated as an organic constituent of society that predated the development of the legal system. Und oubtedly, until the recent advances in assisted reproductive technology, there was a close albeit imperfect fit between opposite-sex marriage and the inherent biological fact that reproduction of our spe cies could re sult only from the sexual union of a man and a woman. What had not bee n fatho med e xists tod ay, howe ver. In re Roberto d.B., 399 Md. at 279, 923 A.2d at 122. The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today. What had always been an imperfect fit between marriage and procreation 62 is now called into question. 62 The marriage statutes are silent about fertility and maximum age require ments (contin ued...) -77- Although infertility is not a bar to marriage, it is nonetheless true that traditional marriage remains the only way to create families in wh ich children are biologically related to both parents. Ce rtainly it is true that opp osite-sex co uples can a nd do co habit and produce offspring and thus create non-traditional families, but that very fact points to the substantiality of the state interest: the State asserts a strong interest in encouraging oppositesex couple s to form ally recog nize the ir child-b earing u nions. The difficulty faced by the State is that this interest has been posed and defended successfu lly only under the deferential rational basis standard. See, e.g., Andersen, 138 P.3d at 982-83 ; Hernandez, 855 N.E.2d at 7. Likewise, the argument that the State has an interest in promoting marriage between opposite-sex couples because the ir careless sexual unions pose a significant possibility of creating offspring and all the attendant burdens and duties, whereas same-sex couples cannot reproduce without extensive, expensive outside intervention that evinces a far greater level of responsibility and commitment, has been upheld on ly und er rational ba sis sc rutin y. Morrison v. Sadler, 821 N.E.2d 15 , 24-25 (Ind. Ct. App . 2005). The Appellees assert a number of reasons why Section 2-201 does not even rationally further a legitimate governmental interest, and thus purport to refute any compelling interest presented by the State on the theory that failure to survive the most deferential test obvious ly 62 (...continued) of the parti es. See Md. C ode (195 7, 2006 R epl. Vol.), § 2 -202 of th e Family Law Article ( Marriages within certa in degrees o f relationship void; pena lties. ); id. at §§ 2-301 to -302 ( Marriages of Certain M inors. ). Even insanity as a bar to capacity appears in the statutes only by imp lication. Id. at § 7-103 ( Ab solute divorce. ). -78- implies failure und er strict scrutiny. Lo gically that theory is una ssailable as fa r as it goes, but the Appellee s do not ad dress a cruc ial underlying as sumption : in order to dispose of the opponent s arguments, it is necessary in the first instance ac tually to address each opposing argumen t. Many of the arguments disposed of in the Appellees brief almost certainly wou ld fail under the strict scru tiny mand ated un der Ar ticle 46. Thus, arguments that the same-sex marriage ban prom otes cost sav ings or that the ban is justifie d on grounds of legislative hegemo ny obvious ly fail strict scru tiny. Indeed, such assertions approach the level of straw man arguments, a status undoubtedly applicable to the supposed state interest in discrimination for its ow n sake. The Appellees also dispute the notion that the same-sex marriage ban rationa lly furthers a legitim ate state interest in child welfare; here the Appellees stand on shakie r ground, a nd quite possibly wo uld fail to sustain their burden if the standard were rational basis review. However, the correct standard is strict scrutiny, a much greater burden for the State. Let us assume arguendo that the State has failed to meet its burden to demonstrate that there exist no other, reasonable ways posing a lesser burden on constitutionally protected activity, Dunn, 405 U.S. at 343, 92 S. Ct. at 10 03, 31 L. Ed. 2d at 285, to further the undoubtedly substantial state interest in prom oting child w elfare. At this stage there still remains the possibility that the Appellees are wrong in their assertion that there is no causal link between judicial recognition of same-sex marriage and the behavior of opposite-sex couples, an argum ent asserted w ith particular forc e by amici, The American Center for Law -79- & Justice. The phenomena of assisted reproduction and same-sex marriage are so new and radical that there exis ts no eviden ce thus far to support or r efute the asserted link an d its concomitant external effects. Thus far, courts that ha ve weigh ed this argu ment fav orably have done s o unde r rationa l basis re view. See, e.g., Hernandez, 855 N.E .2d at 7-8; Andersen, 138 P.3d at 983, 984. The State s contention that the same-sex marriage ban arises organically from the nature of marriage itself, and that the much later codification accomplished by Section 2-2 01 merely clar ifies society s com pelling interes t in the historic family unit as a mechanism for protecting the progeny of biological u nions, actu ally asserts the state inte rest in pr omotin g an ord erly, stable s ociety. See Goodridge v. Dep t of Pub. Health, 798 N.E.2d 941, 997 & n.20 (2003) (Cordy, J., dissenting) ( It is important to distinguish the individual in terests in domestic re lations from the social intere st in the fam ily and marriag e as soc ial institutio ns. ). On the present state of the record, I believe neither party has explored this issue in the depth appropriate to an issue of suc h perman ent, transcendent magnitude. Under our authority to order a remand so that justice will be served by permitting further proceedings, Md. Rule 8-604 (d), I would remand this case to the Circuit Court for a full evid entiary he aring. W ithout expressing a n ultimate op inion on w hether the S tate could meet its burden, I believe the State s unrebutted contention regarding the broad societal interest in retaining traditional marriage presents an issue of triable fact that requires a remand. If there is any issue of fact undisposed of and remaining to be determined by the -80- trier of the facts upon the weight of the evidence, summary judgm ent can not be g ranted. Tellez v. Canton R.R. Co., 212 Md. 423, 431, 129 A.2d 809, 813 (1957). Especially in light of the grave issues of constitutional dimension presented here , I believe it is inap propriate to reach this issue on the bas is of suc h an un develo ped rec ord. See Montgomery County v. Broad. Equities, Inc., 360 Md. 438, 457, 758 A.2d 995, 1005 (2000) ( [T]he constitutional exception to the exhaustion requirement does not a pply when the constitutio nal challeng e to a statute as a whole involves the need for some factual exploration, which may be necessary when statutory classifications are challenged on equal prote ction groun ds or unde r Article 46 of the M aryland Dec laration of R ights. ); Ins. Comm r v. Equitable Life Assura nce Soc y, 339 Md. 596, 623-24, 664 A.2d 862, 876 (1995). Consequently, I respectfully dissent from the majority opinion. Chief Judge Bell has authorized me to state that he joins in this dissenting opinion. -81- IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2006 ___________________________________________ FRA NK C ONA WA Y, et al. v. GITA NJAL I DEA NE, et al. ___________________________________________ Bell, C.J. Raker *Wilner *Cathell Harrell Battaglia Greene, JJ. ___________________________________________ Dissenting Opinion by Bell, C.J. ___________________________________________ Filed: September 18, 2007 *Wilner a nd Cathe ll, JJ., now retired , participated in the hearing and conference of this case while active membe rs of this Co urt; after being recalled pu rsuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adop tion of this opinion. I join Judge Battaglia s dissent. As Judge Battaglia carefully and correctly explains,1 sex-based classifications are analogous to race-based classifications and Maryland law, unlike federal law, by refusing to apply intermediate scrutiny to the review of sex-based classifications, does not draw a distinction between them. In State v. Burning Tree Club, Inc., 315 M d. 254, 294 , 554 A.2d 366, 386 (1989), this Court held that the burden of justifying sex-based classifications falls upon the State, and that the level of scrutiny to which the classifications are subject is at least the same scrutiny as racial classifications. See also Giffin v. Crane, 351 Md. 133, 148, 1 55, 716 A.2d 1 029, 103 7, 1040 (1 998) (hold ing that the E qual Righ ts Amendment plainly prohibits sex-based classifications, absent substantial justification); Murphy v. Edmonds, 325 Md. 342, 35 7 n.7, 60 1 A.2d 102, 10 9 n.7 (1992); Rand v. Rand, 280 Md. 508, 512-14, 374 A.2d 900, 903-04 (1977) (finding instructive, in interpreting the scope of the Equal Rights Amendment as it applied to sex discrimination, the Supreme Court of Washington's overriding compelling state interest standard). It, therefore, is clear that an equal application approach Judge Battaglia also fully analyzes, and explains, why, under Maryland law, Maryland Code (1957, 2006 Repl. Vol.) §2-201 of the Family Law Article, creates a sex-b ased cla ssificatio n. Conaway v. Deane, ___ Md. ___, ___, ___ A. 2d ___, ___ (2007) [slip op. at 47- 58]. As stated simply in a case presenting much the same is sues as this one , Hernandez v. Robles, 855 N.E.2d 1, 27 (N.Y. 2006) (Kaye, C.J., dissenting) (citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249 (1985)), [h]omosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy ¦. 1 cannot render con stitutional a discriminatory sex-based classification any mo re than it could do so for a discriminatory race-based classification. To justify its rejection of th e enh ance d standard of review, strict scru tiny, that this Court has applied to the review of gender-based classifications, the majority dismisses, an undisputed but extensive history of pervasive prejudice and discrimination targeted at hom osexu als. Conaway v . Deane, ___ Md.,___,___, ___ A.2d ___,___ (2007) [slip op. at 55- 60, 65- 66]. It then concludes, as a result, that (1) homose xuals hav e enough political power to eff ect the even tual establishm ent, by statute, of marriage or civil unions for same-sex couples; and (2) this political powe r preclu des the ir chara cterizatio n as a su spect cla ss. Id. I am not persuaded. The fact is that Maryland has not adopted, and it may safely be said, is not on the v erge of adoptin g, a compreh ensive statew ide dome stic partnership scheme for same -sex coup les that appro ximates the institution of c ivil marriage, and thereby confers upon such couples the approximate rights and responsibilities of married heterosexu al couples. M oreover, the laudable, th ough piecemeal, civil adv ances th at the m ajority refe rences and on which it relies, id. at ___, ___ A.2d at ____ [slip op. 65- 66], occurred because marriage has remained an exclus ive ben efit of h eterose xuality. See In Tyma v. M ontgom ery County, 369 Md. 497, 512, 801 A.2 d 148, 15 8 (2002) (u pholding local law g ranting ben efits to the domestic partners of its employees by virtue of holding that such law does not implicate Maryland s marriage laws). Thus, the conditioning of advances that benefit same-sex couples o n the limitation that homosexuals shall not acquire the 2 right to marry belies a ny argumen t that the right to m arry, or its functional equivalen t, is imminen t, or likely to be, not to m ention, inevitable, for same-sex couples. In any event, a du e process a nalysis requires th at we reac h a differe nt result than the majority does. The majority determines that same-sex marriage is not deeply rooted in this State or in the United States, and, therefore, does not implicate a fundamental liberty interest. ___ Md. at ___, ___ A.2d at ___ [slip op. at 70- 87]. That determination, however, only recognizes and gives voice and substance to an undisputed prejudice and objection against an d to hom osexuality - that is not legally cognizable; it does not address, never mind resolve, the real issue. Chief Judge Kaye made this point, in addition to identifying the real issue, in Hernandez v. Robles, 855 N .E.2d 1 , 27 (N .Y. 200 6) (Ka ye, C.J., diss enting) . There, the N ew Y ork C ourt of A ppeals framed th e issu e, as t he m ajority in this case has done , as whethe r same-se x marriage is deeply rooted in tradition, and concluded, again as the majority does here, that such marriages are not. Noting that [f]undamental rights are those w hich are, ob jectively, deeply roote d in this Nation s history and traditio n ¦ an d implicit in the concept o f ordered lib erty, such that neither liberty nor justice would exist if they were sacrificed, id. at 23, quoting Washington v. Glucksb erg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, ____, 138 L. Ed. 2d 772, ___ (1997), agreeing with the Supreme Court of the United States and Court of Appeals precedent, Chief Judge Kaye concluded that the right to marry is fundamental, id., citing, among others, Loving v . Virginia, 388 U.S. 1, 3 87 S.Ct. 1817, 18 L. Ed. 2d 1010 (1967) (holding unconstitutional statutes that prohibit interracial marriage) and Levin v. Yeshiva Univ., 754 N. E. 2d 1099, ____ (N. Y. 2001) (G. B. Smith, J., concurring) ( marriage is a fundamental constitutional right ), and that, as a matter of due process, ce ntral to the righ t to marry is the right to marry the person of one s choice. Id. at 22-23. (citations omitted ). Chief Ju dge Ka ye then opine d: Fundamental rights once recognized cannot be denied to particular groups on the g round that thes e group s have h istorically b een de nied tho se rights . Indeed, in re casting the p laintiffs invo cation of th eir fundam ental right to marry as a request for recognition of a new right to same-sex marriage, the Court m isappre hends the natu re of the liberty inter est at stak e. Id. at 23. Relying on Lawrence v. Texas, 539 U. S. 558, 123 S.Ct. 2472, 156 L. Ed. 2d 508 (2003), in which the United States Supreme Court warned against such misapprehension, she explained: Lawrence overruled Bowe rs v. Hardw ick, 478 U. S. 186, 106 S.Ct. 2841, 92 L. Ed. 2d 140 (1 986), which had upheld a Georgia statute criminalizing sodo my. In doing so, the Lawrence court criticized Bowers for framing the issue presen ted too narro wly. Declarin g that Bowers was not correct when it was decid ed, and it is no t correct today (539 U.S. at 578, 123 S.Ct. 2472), Lawrence explained that Bowers purported to analyzeerroneously-whether the Constitution conferred a fundamental right upon homose xuals to enga ge in so domy (5 39 U.S . at 566, 1 23 S.C t. 2472 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, w as the right to e ngage in private consensual sexual conduct-a right that app lied to both homose xuals and heterosexuals alike. In narrowing th e claimed lib erty interest to embod y the very exclusion being ch allenge d, Bowers disclose[d] the Court's own failure to a ppreciate the extent of the liberty at stake (Lawrence, 539 U .S. at 567 , 123 S .Ct. 247 2). 4 Hernandez, 855 N. E . 2d a t 23. ( Kaye , C.J., diss entin g). W hat C hief Judg e Ka ye next said applies with equal force to the case sub judice: The same failure is evident here. An asserted liberty interest is no t to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to th ose who now see k to exercise it (see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 [1992] [it is tempting ... to suppose that the Due Process C lause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.... But such a v iew w ould be incons istent w ith our la w ]). Id. at 23-24. It is clear to me that the majo rity misapprehends the nature of the liberty at issue in this case. It is not whe ther a same -sex marria ge, with all the pejorative emotions that evo kes, is a fundamen tal right; the real issue in this case, when properly framed, is whether marriage is a fundam ental right. The issue has already been resolved; indeed, we all agree that it has been answered in the affirmative and the righ t is firmly es tablishe d. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817 (1967) (holding unconstitutional statutes that prohibit interra cial marriage ); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780 (1971) (concluding that state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened the fundamental right to marry); Zablock i v. Redha il, 434 U.S. 374, 98 S.Ct. 673 (1978) (determining that states can not require in dividuals w ith child support obligations to obtain co urt approv al in order to m arry); Turner v. Safley, 482 5 U.S. 78, 107 S.Ct. 2254 (1987) (holding that inmates could not be denied the right to marry). The right to marry, encomp assing as it do es the related and critically important element o f choice the freedo m to choo se whom to marry, to select the lucky person is no t inherently party-cen tric. Neither is it either hetero- or homo- sexual. I agree with Chief Judge Kaye, to construe the right to m arry as nar rowly as does th e majo rity, i.e., based on sexual orientation, makes inevitable the conclusion that this fundamental right, by virtue of historical prejudice, does not exist for same-sex couples. See Hernandez, 855 N .E.2d a t 24. (K aye, C.J., d issentin g) (citatio ns omi tted). As Chie f Judge K aye observed : the result in Lawrence was not affected by the fact, acknowledged by the Cou rt, tha t ther e had been no lo ng histor y of to leran ce fo r hom osex ualit y. Rather, in holding that [p]ersons in a homosexual relationship may seek autonomy for the [ ] purpose [ of making intimate and personal choices] , just as heterosexual person s do. Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions abou t who should be permitted their protection. As the C ourt noted, times can blind us to certain truths and later generations can see that laws once thought necessary and proper only served to oppress. As the Constitution endures, p ersons in ev ery generation can invok e its principles in their own search for greater freedom (Lawrence, 539 U.S . at 579, 123 S.Ct. 2472; see also id. at 572, 123 S.Ct. 2472 [ (h)istory and tradition are the starting point but not in all cases the ending point of the substantive due process inq uiry ¦. ; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 466, 105 S.Ct. 3249, 87 L.Ed.2d 313 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] [ what once was a natural and self-evident ordering later comes to be seen as an artificial and invidious constraint on huma n potential and freedom ] ). 6 Simply put, fundamental rights are fundamental rights. They are not defined in terms of wh o is entitle d to exe rcise the m. Hernandez, 855 N.E.2d at 24. (Kaye, C.J., dissenting) (citing Lawrence, 539 U.S. at 574, 5 79, 123 S.Ct. at 2 472). To be sure, there are important differences between the African American experience and that of gay men and lesbians in th is country, yet many of the argumen ts made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage and, as in Loving, their goal is to restrict the right of an indiv idual to m arry the pe rson of his or he r choice . Con sequ ently, the reasoning of Loving requires rejection of the petitioners argument. Hernandez, 855 N. E. 2d at 24-25, 26, (Kaye, C.J., dissenting) (citing and quoting Brief of NAACP Legal Defense and Education Fund, Inc., as amicus curiae in support of plaintiffs). Finally, [i]t is no answer that sam e-sex couples can b e excluded from marriage because marriage, by definition, does not include them. In the end, an argument that marriag e is heterosexual bec ause it just is am ounts to circular reasoning (Halpern v. Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, ¶ 71 [2003]). To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justi fy the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question w e are asked to decide (Goodridge v. Department of Pub . Health, 440 Mass. 309, 348, 798 N .E.2d 9 41, 972 -973 [ 2003] [Grea ney, J., con curring ]). Hernandez, 855 N. E. 2d at 26 (Kaye, C. J., dissenting). At the very least, the b enefits appurtenant to marriage accrue, whoever and 7 whatever the nature of the parties. Therefore, I agree with, and join, Judge Raker s dissent to the exten t that it endorses and advocates that committed same-sex couples are entitled to the myriad statutory benefits that are associated with and flow from marriage. I do not join that part of her opinion that accepts the majority s analysis and d etermination that rational basis re view is the a ppropriate standa rd to be applied in this ca se. As to a determ ination under rational basis review, again, I am persuaded by Chief Judge Kaye s Hernandez dissent. Thus, if the proper test were rational basis, I, like Chief Judge Kaye, believe that the classification at issue in this case does not pass muster: it does not satisfy e ven rational basis review, which requires that the classification rationally further a legitimate state interest. Hernandez, 855 N.E.2 d at 30. ( Kaye, C .J., dissen ting) (cita tions om itted). The majority d etermin es that, u nder rational basis review, the limitation of marriage to a man and a woman 2 is rea sona bly related to the State s le gitimate interest in fostering procreation, in a stable environment, i.e., traditional heterosexual marriag e. See ___ Md. at ___ , ___A.2d at ___[slip op. at 96- 99]. While the State un doubtedly ha s an interest in e ncourag ing heteros exual cou ples to marry prior to procreation, the exclusion of gay men and lesbian s from m arriage in no way furthers this interest. There are enough marriage licenses to go around for everyone. Hernandez, 855 N .E.2d a t 30. The majority discusses, at length, statistics and other evidence that sup port 2 Maryland Code (1957, 2006 Repl. Vol.), Family Law Article, §2-201. 8 the existence of trend tow ard the gradual erosion of the traditional nuclear family in today s society, ___ Md. at ___ , ___A.2d at ____[slip op. at 103], and also identifies the ways in which Maryland Code (1957, 2006 Repl. Vol.), Family Law Article, § 2-201 (hereinafter Family Law § 2-201 ) is both over-and under-inclusive. Id. at ___, ___ A.2d at ____ [slip op. 100-05]. Reasoning that, because rational basis review does n ot require m athematic e xactitude, an d may conta in imperfections which result in some degree of inequality, the majority submits that both the aforementioned trend and the inexactness, that is, the over-and underinclusive nature o f Fam ily Law § 2-201 , are insufficient to support a determination that Family L aw § 2 -201 ru ns afo ul of eq ual pro tection. Id. at ___, ___ A.2d at ____ [slip op. 105-06] (emphasis added). At issue here, however, is not some degree of inequa lity but total exclusion of same-sex couples from the entire spectrum of protections that come with civil marriage - purportedly to encourage other people to procreate. Hernandez, 855 N.E.2d at 31. (Kaye, C.J., dissenting) (emph asis add ed). Consequently, it is disingenuous indeed to surmise that the possibility of procreation creates a reasonable relationship in this context. ___ Md. at ___, ___ A.2d at ___ [slip op. 105] (emphasis added). As simply put by Chief Judge Kaye, [m]arriag e is about m uch mor e than prod ucing child ren, and yet the majority leaves ope n gaping q uestions suc h as how offering o nly heterosexu als the right to visit a sick love d one in the hospital ¦ conceiva bly furthers the S tate s interest in encouraging opposite-sex couples to have children. See id. at 393, 855 N.E. 2d at 9 31 (Kaye, C .J., dissenting). T he sheer b readth of th e benefits a ppurtenan t to marriage that are, pursuant to Family Law § 2-201, made unavailable to same-sex couples renders justification impossible to credit. Id. at 393, 855 N.E. 2d at 32. (Kaye, C.J., dissenting) (citing Romer v. Evans), 517 U.S . 620, 635, 1 16 S.Ct. 1620, 1 629 (1 996)). 10

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