Burning Tree Club, Inc. v. Bainum

RODOWSKY, Judge,

concurring.

I join in the analysis presented by the opinion announcing judgment insofar as certain arguments of the appellees are concerned. That opinion answers the contention that Burning Tree’s participation in the open space program results in state action. For the reasons set forth therein, the roles of the Attorney General and of the State Department of Assessments and Taxation under Art. 81, § 19(e) together with what appellees’ brief calls “a State-established and enforced disincentive to easing discriminatory barriers” do not result in “[ejquality of rights under the law” being “abridged or denied because of sex.”

I write separately because the lead opinion has not identified, and responded directly to, appellees’ argument that “the primary purpose provision by its terms singles out for special exception from an otherwise uniformly applicable anti-discrimination measure private discrimination of a certain type — sex—and to a certain degree — total—which neither the State nor a private club receiving a tax exemption could otherwise practice.” [Footnote omitted]. With respect to this argument I believe that a portion of Ch. 870 of the Acts of 1974 is facially unconstitutional under the E.R.A. but that the unconstitutional portion is clearly nonseverable. I therefore join in the Court’s mandate.

The E.R.A. is not self-executing as to memberships in private country clubs. Had § 19(e)(4) been amended in 1974 to prohibit discrimination based only on race, color, creed, or national origin by country clubs participating in the open space program, the amendment would have been, in my opinion, valid under the E.R.A. The E.R.A. does not compel the General Assembly to legislate to prohibit discrimination based on sex in any particular aspect of the private sector of society. For example, when Art. 46 of the Maryland *86 Declaration of Rights, the E.R.A., was ratified on November 7, 1972, the Maryland public accommodations law prohibited discrimination based upon race, creed, color, or national origin. See Md.Code (1957, 1972 Repl.Vol.), Art. 49B, § 11. By Ch. 684 of the Acts of 1978 the public accommodations law was amended to prohibit, in addition, discrimination based on sex and age. The omission of sex discrimination from the prohibitions of the public accommodations law did not render that statute unconstitutional in the period between November 7, 1972, and July 1, 1978.

In the case now before us, however, the General Assembly has included in Ch. 870 a prohibition against discrimination based on sex. That legislation is state action. Obviously the equality “under law” which the E.R.A. guarantees embraces an enactment by the General Assembly. Further, “[t]his Court has consistently held that a law that imposes different benefits and different burdens upon persons based solely upon their sex violates the Maryland ERA.” Turner v. State, 299 Md. 565, 574 , 474 A.2d 1297, 1301 (1984). In order to test whether unconstitutionally discriminatory state action is found in the statute itself, I shall reframe appellees’ argument in terms of disparate benefits.

Under Ch. 870 a person applying for membership in a participating country club who is denied membership because of the person’s race, color, creed, or national origin enjoys the benefit of a legal procedure under which the Attorney General will seek voluntary compliance by the club or issue a cease and desist order, the violation of which results in loss to the country club of its favorable tax treatment. On the other hand, under Ch. 870 which purports to prohibit discrimination based on sex, a person applying for membership in a participating country club who is refused membership based solely on the applicant’s sex has no legal benefits whatsoever. Under Ch. 870 a member of a participating, mixed membership country club who is discriminated against on the basis of race, color, *87 creed, or national origin on certain days and at certain times enjoys the benefits described above. Under Ch. 870 a member of a participating, mixed membership country club who, solely on the basis of sex, is discriminated against on certain days and at certain times, has no benefits. It is only with respect to discrimination falling outside of the ambits of the primary purpose provision and of the periodic discrimination provision that members of a participating country club who are discriminated against on the basis of race, color, creed, or national origin and members who are discriminated against on the basis of sex enjoy equal benefits under Ch. 870.

This analysis highlights that, on this aspect of appellees’ argument, the word “sex” appears to be used generically in the statute. It is used to apply to either the male sex or the female sex. But, in application, the provision will always be applied to a particular sex, the one excluded by a given, participating country 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. It is probably only in an antidiscrimination statute which prohibits both sex and other forms of discrimination that the different treatment of sex discrimination from other forms of discrimination can even raise the problem under consideration, because, in the context of sex discrimination, only one sex will be the object of discrimination.

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

*88 The E.R.A. has elevated to the constitutional level a policy against discrimination based on a person’s sex to the extent that “[e]quality of rights under the law shall not be abridged or denied because of sex.” In my opinion, once the General Assembly decides to address sex-based discrimination in an antidiscrimination statute which also prohibits discrimination on other bases, the E.R.A., in light of its underlying policy, prevents the General Assembly from conferring lesser benefits on persons who are objects of sex-based discrimination.

I believe the Senate Amendment has produced a unique creature — an unconstitutionally discriminatory antidiscrimination law. Nevertheless, for the reasons given in part IX of the opinion announcing judgment, I agree that the primary purpose provision is not severable from the prohibition against sex discrimination.