Conaway v. Deane

BATTAGLIA, J.,

dissenting.

I respectfully dissent. In this case, the majority 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 *357(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 Chief Judge Murphy’s opinion did not reflect the view of a majority of this Court 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, op. at 254-63, 932 A.2d at 591-97. Contrary to the majority’s conclusion, 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., 315 Md. 254, 293, 554 A.2d 366, 386 (1989) (Burning Tree II), this Court held “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 or conferring a *358benefit entirely 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, for this Court to hold that the ERA is so narrowly 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 child 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 the parents).

I. Determining the Applicable Standard of Review

A. Burning Tree I

1. The Primary Case

In Burning Tree I, Stewart Bainum, in his role as taxpayer,5 and Barbara Renschler, a taxpayer and a woman seeking membership in the Burning Tree Club, a private country 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)® of Article 81, Maryland Code (1957, 1980 Repl.Vol.),6 violated the ERA. Burning Tree I, 305 Md. at 59-*35960, 501 A.2d at 820. The Plaintiffs also sought to enjoin the State from extending preferential tax treatment to the Club, and sought a mandate that the Club entertain applications for female membership.7 Id. at 60, 501 A.2d at 820.

*360Section 19 (e) authorized the Department to make agreements 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 ordinary assumption of “best use,” the other, lower assessment, calculated under the assumption that the land remain undeveloped. 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 agreement, the State could 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 would have been accelerated and become payable immediately.

In 1974, the General Assembly amended Section 19(e) to add an anti-discrimination provision, which conditioned the tax benefit on an agreement not to discriminate on account of race, color, creed, sex, or national origin, unless the clubs were “operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex.” Burning Tree I, 305 Md. at 57, 501 A.2d at 819 (emphasis added); 1974 Md. 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 days and at *361certain times.” Burning Tree I, 305 Md. at 57, 501 A.2d at 819; 1974 Md. Laws, Chap. 870.

There were several issues8 before the Court 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 space program, amounted to state action,9 Burning Tree I, 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, *362501 A.2d at 830-31. The Court issued three separate opinions. Id. at 56, 501 A.2d at 818 (Chief Judge Murphy, joined by Judges Smith and Orth); id. at 85, 501 A.2d at 833 (Judge Rodowsky, concurring); id. at 88, 501 A.2d at 835 (Judge Eldridge, joined by Judges Cole 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 constitute state action. Id. at 64-65, 501 A.2d at 822-23. In Chief Judge Murphy’s opinion, Section 19(e)(4)(i) was facially neutral, 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 discriminatory membership policy, the State did not cause the Club to implement those policies through coercion or inducement, and the statutory purpose11 bore no relationship to sex discrimination. Id. at 75-76, 501 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 dis*363agree[d]” with Chief Judge Murphy’s view that the statute and its administration by the State were “gender neutral,” id. at 91, 501 A.2d at 836; furthermore, Judge Eldridge believed there “clearly [was] state action,” 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 mechanism set up by the statute “clearly involve[d] the State in the discrimination” by the Club. Id. at 91-93, 501 A.2d at 836-37.

A majority of the Court, consisting of Judge Rodowsky, id. at 88, 501 A.2d at 834-35, and Judges Eldridge, Cole and Bloom, id. at 91, 501 A.2d at 836, held that the “primary purpose” clause on its face violated the ERA. Because Judge Rodowsky disagreed with Judge Eldridge about severability, id. at 91 & n. 5, 501 A.2d at 836 & n. 5, a different majority consisting of Chief Judge Murphy, and Judges Orth and Smith, id. at 84, 501 A.2d at 832-33, agreed with Judge Rodowsky, id. at 85, 501 A.2d at 833, holding that the “primary purpose” clause was not severable from Section 19(e)(4)©, thereby invalidating the entire anti-discrimination provision (and rendering the periodic discrimination 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 sexes equally, id. at 71, 501 A.2d at 826, and because the ERA was “essentially limited in its scope to unequal treatment imposed by law as between the sexes.” Id. at 65, 501 A.2d at 823 (emphasis added). According to Chief Judge Murphy, enactment and administration of Section 19(e)(4) constituted “action 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 benefit 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 *364result 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 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” clause was permissive, not mandatory.12 Id.

Judge Eldridge, writing for himself and two other judges, rejected the Chief Judge’s “gender neutral” analysis, warning that “Chief Judge Murphy’s opinion seems to embrace a type of ‘separate but equal’ doctrine for purposes of the E.R.A.” Id. at 91, 501 A.2d at 836. Judge Eldridge stated that regardless of whether the sexes are benefitted or burdened equally, any statute that implicates gender classifications on its face must be subject to strict scrutiny, 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 upon either males or females, we have never held that the E.R.A. is narrowly limited to such situations. On the contrary, we have viewed the E.R.A. more broadly, 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, in which we stated that the language of the ERA was “ ‘unambiguous’ ” and “ ‘can only *365mean that sex is not a factor’,” id. at 95, 501 A.2d at 838, quoting Rand, 280 Md. at 512, 374 A.2d at 903 (emphasis added), and also in Maryland 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 at 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 833. Indeed, in Judge Rodowsky’s view, not only was the “primary purpose” clause constitutionally infirm, but the periodic discrimination provision failed for exactly the same reasons. 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 provision 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-female club could operate as a mirror-image 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, all country clubs were situated equally with respect to the open space program; all-female clubs and all-male clubs were free to discriminate equally, and hence, there was no ERA violation. The fact that a single all-male club just happened to be the only eligible entity 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 participating club. Judge Rodowsky stated this proposition explicitly:

*366It 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

Id. at 87, 501 A.2d at 834 (emphasis added), and Judge Eldridge agreed, because he directly refuted the position of the Chief Judge. Id. at 95, 501 A.2d at 838 (“[T]he three apparently do not view the express sanctioning of single sex clubs as imposing a burden upon the excluded sex, as long as the governmental action in theory equally sanctions discrimination by single sex facilities against persons of the other sex.”).

Ironically, the positions set out by Judges Eldridge and Rodowsky find support in an article by Barbara A. Brown, Thomas I. Emerson, Gail Falk & Ann E. Freedman, 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 Murphy. 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 Chief 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 *367circumstance of a particular person’s sex. Brown, supra at 889 (emphasis added). Accord Burning Tree I, 305 Md. at 64, 71, 501 A.2d at 822, 825; Rand, 280 Md. at 512, 374 A.2d 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 basis of sex. Four Judges of this Court rejected the 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 eases *368interpreting 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 Maryland State Board of Barber Examiners v. Kuhn, 270 Md. at 498, 312 A.2d at 217-18, a group of cosmetologists 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 performed by cosmetologists as “work ... for the embellishment, cleanliness and beautification of women’s hair.”15 A different statute, Section *369323 of Article 43, Maryland Code (1957, 1973 Supp.), defined the corresponding services performed by barbers without limitation to the sex of the client.16 Under this 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 criminal prosecution. Kuhn, 270 Md. at 500-01, 312 A.2d at 218-19.

In holding that Article 46 was inapplicable, id. at 505-06, 312 A.2d at 221-22, 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 others similarly situated, were complaining that because of their sex, they were being denied the services of cosmetologists,” the result would have 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. Therefore, Kuhn stands for the proposi*370tion 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 minor 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 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.

Id. at 511-12, 374 A.2d at 902-03. Therefore, the ERA mandated that the parental duty of child support was shared jointly by both parents, in derogation of the common law rule. Id. at 517, 374 A.2d at 905.

In its interpretation of the Maryland ERA, the Rand Court examined eases from a number of other states construing similar provisions in their own constitutions. 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 with equality of rights range from absolute to permissive. Like the Supreme Court of Washington, however, we believe that the “broad, sweeping, mandatory language” of the amendment is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the E.R.A. in this [Sjtate was intended to, and did, drastically alter traditional views of the validity of sex-based classifications.

*371Id. at 515-16, 374 A.2d at 904-05. Because the Supreme Court of Washington “did not consider whether the sex-based classification at issue ... satisfied the rational relationship or strict scrutiny test,” but instead found an “ ‘overriding compelling state interest’ ” intrinsic to the ERA, 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 sex-based classifications on the basis of Article 46. For example, in Kline v. Ansell, 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 adultery. Its elements consisted of a valid marriage and an act of sexual intercourse between a married woman and a man other than her husband. The fact that the wife consented, that she was the aggressor, that she represented herself as single, that she was mistreated or neglected by her husband, that she and her husband were separated through no fault 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 abrogate the cause of action for criminal conversation. 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 op. at 258-59 & n. 24, 932 A.2d at 594 & n. 24; Kline, 287 Md. at 592, 414 A.2d at 932 (“explicating this Court’s holding that it would be unconstitutional to impose a burden on fathers which was not equally imposed on *372mothers”); id. at 593, 414 A.2d at 933 (“Thus, Maryland’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 intercourse between the wife and a man other than her husband, it is obvious that the wife lacked a legally 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 paramour 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 action. It was obvious to the Court that the unequal rights under the law enjoyed by the wife, compared to the husband, could not survive the scrutiny mandated by the ERA. Id. at 593, 414 A.2d at 933 (“A man has a cause of action for criminal conversation, but a woman does not.”).

The same conclusion results from a comparison of the legal obligations of the paramour and a hypothetical female mistress of the husband. 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 hypothetical 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 commitment to equality of the sexes.”).

*373Therefore, 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 825 (opinion of Murphy, C.J.) (“The equality between the sexes mandated by the Maryland E.R.A. is of ‘rights’ of individuals ‘under the law.’ ”)(emphasis added). Assuming other personal characteristics are held constant, the appropriate analysis under the ERA should compare the person affected by the challenged classification "with a similarly situated person of the opposite sex, and then determine whether her rights or obligations have been altered. Viewed through this lens, it becomes clear that every sex-based classification that fails the benefits/burdens test must necessarily fail strict scrutiny at the individual level. This Court applied that analysis in the time span from 1972 until Burning Tree I. See Kline, 287 Md. at 591, 414 A.2d at 932, where the Court quoted approvingly 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 examined the legislative history surrounding criminal conversation and determined that, standing alone, history would have supported the inference that the General Assembly 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 criminal conversation. 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 *374that the action for criminal conversation [was] no longer viable.” Id. at 591, 414 A.2d at 932.

In Condore v. Prince George’s County, 289 Md. 516, 425 A.2d 1011 (1981), this Court considered whether the common law doctrine of necessaries survived the enactment of the ERA. The majority determined that the ERA abrogated the doctrine, under which “the husband had a legal duty to supply his wife with necessaries suitable to their station in life, but the wife had no corresponding obligation to support her husband, or supply him with 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 would satisfy the “general purpose of the 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 ‘canonly 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 Assembly have made it plain beyond doubt that family support obligations are no longer exclusively imposed on the male.” Id. at 533, 425 A.2d at 1020. Nowhere did the Court invoke comparisons of “men and women as classes.” See op. at 254, 932 A.2d at 591.

To summarize, in the years prior to Burning Tree I, our cases construing the ERA consistently applied strict scrutiny to sex-based classifications. This Court repeatedly 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.

*3753. 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 constitutional amendments similar to Maryland’s ERA, 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 meaning of their equal rights amendments are instructive in ascertaining the reach of Maryland’s E.R.A.”).

For example, the Supreme Judicial Court of Massachusetts interpreted the Massachusetts ERA22 to require application of the “strict scrutiny—compelling State interest test” to assess *376“any governmental classification based solely on sex.” Opinion of the Justices to the House of Representatives, 374 Mass. 836, 371 N.E.2d 426, 428 (1977) (emphasis added). The court considered whether a proposed statute, House No. 6723, barring girls from participation with boys in football and wrestling, was permitted by the ERA.23 The court compared decisions from a number of states that had adopted equal rights amendments, and held that the purpose of the ERA was to require, when evaluating sex-based equal protection claims, strict scrutiny rather than intermediate scrutiny,24 the standard applied by federal and state courts to sex-based equal protection claims under the Fourteenth Amendment. Opinion of the Justices, 371 N.E.2d at 428 (“To use a standard in applying the Commonwealth’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 *377the people in adopting it.”). Application of strict scrutiny led the court to conclude that the proposed legislation would be unconstitutional:

The enactment of House No. 6723 would violate [the Massachusetts ERA]. The absolute prohibition in the proposed legislation cannot survive the close scrutiny to which a statutory classification based solely on sex must be subjected. A prohibition of all females from voluntary participation in a particular sport under every possible circumstance serves no compelling State interest.

Id. at 429-30.

Judge Eldridge also relied upon Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 893 (1975), in which the Supreme Court of Washington invalidated a ban on girls’ participation on high 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 Interscholastic Activities Association (“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 counterpart, Article I, Section 12 of the Washington Constitution.25 Having held less than two years previously, in a case where the ERA26 was inapplicable,27 that under Washington law, sex would be re*378garded as an “inherently suspect” classification triggering strict scrutiny, Hanson v. Hutt, 83 Wash.2d 195, 517 P.2d 599, 603 (1973),28 the court held that adoption of the ERA required an even more stringent standard than strict scrutiny. Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 889 (1975) (“Presumably 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 permissible under the rational relationship 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 account of sex.”

Id. at 893. Because the involvement of public high schools in the WIAA implicated the state action doctrine, id. at 891, the court applied the “overriding compelling state interest” embodied in the ERA to invalidate the statewide ban on girls’ participation in high school interscholastic football. Id. at 893.

A third case relied upon by Judge Eldridge in Burning Tree I was People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, 101 (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 ERA and its legislative history, the court found “inescapable” the conclusion that the purpose of the ERA was “to supplement and expand the guaranties of the equal protection provision of the Bill of Rights” of the Federal Constitution. Id. Under a strict scrutiny analysis, the court held that a statute permitting 17-*379year-old boys to be charged as adults for certain crimes, but requiring 17-year-old 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 progeny, and eases in sister states interpreting similar constitutional provisions, Judge Eldridge in Burning Tree I concluded that “the E.R.A. renders sex-based classifications suspect and subject to at least strict scrutiny, with the burden of persuasion being upon those attempting to justify the classifications.” Burning Tree I, 305 Md. at 98, 501 A.2d at 840 (emphasis in original). Therefore, “[i]n this respect, the E.R.A. makes sex classifications subject to at least the same scrutiny as racial classifications.” Id. (emphasis added). Even a facially neutral statute can implicate strict scrutiny if the purpose and effect of the classification are discriminatory, Judge Eldridge concluded. Id. at 100, 501 A.2d at 841. Indeed,

[i]f the purpose and effect of the primary purpose provision had related to single race rather than single sex clubs, the provision, regardless of any alleged neutrality in the language, would clearly fall under the principles of Hunter v. Underwood[31]; Arlington Heights v. Metropolitan Housing

*380Corp.[32] Gomillion v. Lightfooti[33], and similar cases.

Id. at 102, 501 A.2d at 842 (emphasis added). In Judge Eldridge’s view, Section 19(e)(4)(l), 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 members of a particular sex,” was unconstitutional both on its face and in its 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 which the provision applied, id. at 100, 501 A.2d at 841, it was undisputed that the purpose and effect of Section 19(e)(4)(l) 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 respect, Burning Tree I was indistinguishable from a line of Supreme Court eases that invalidated ostensibly neutral laws the effects of which were patently discriminatory on grounds of race. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227, 233, 105 S.Ct. 1916, 1919-20, 1923, 85 L.Ed.2d 222, 227-28, 231 (1985) (facially neutral state *381constitutional provision disenfranchising disproportionate numbers of African-Americans held in violation of Fourteenth Amendment Equal Protection Clause); Loving v. Virginia, 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 Clauses); Gomillion v. Lightfoot, 364 U.S. 339, 341-42, 81 S.Ct. 125, 127, 5 L.Ed.2d 110, 113 (1960) (local law altering municipal boundary to exclude nearly all African-American voters constitutionally suspect).

To summarize, in Burning Tree I, a majority of this Court interpreted our prior cases to mandate a robust interpretation of the ERA. Henceforth, government action resulting in sex-based classifications would be subject to strict scrutiny, with the burden placed on the proponents 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 decision of this Court in Burning Tree I, the effect of which was to remove the anti-discrimination provision in its entirety from Section 19(e), the General Assembly enacted 1986 Maryland Laws, Chapter 334, which attempted to reenact the periodic discrimination provision.34 Burning Tree II, 315 Md. at 260-61, 554 A.2d at 370. *382We 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 (emphasis added).

For the precise reasons the “primary purpose” clause failed under Article 46, Chapter 334 failed as well. Id. at 294-95, 554 A.2d at 386-87. Exactly like Section 19(e), Chapter 334 drew séx-based classifications: first, Chapter 334 distinguished sex-based discrimination from other types of discrimination; second, Chapter 334 permitted some types of sex discrimination (periodic), but proscribed others (total). Id. In addressing the State’s contention that physical differences between the sexes justified the contested provision, this Court said:

In order to justify a racially or sexually discriminatory statute, it is not enough for the State to claim legitimate interests which it seeks to further. Under strict scrutiny, legislation must be narrowly tailored and precisely limited to achieving those legitimate ends.

Id. at 296, 554 A.2d at 387. We held35 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 golf tournaments].”), regardless of whether *383those purposes were “substantial,” id. at 295, 554 A.2d at 387, or “legitimate.”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 burdened equally by a statutory classification, that statute must withstand strict scrutiny under the ERA or else be invalidated. Id. at 293-96, 554 A.2d at 386-87. “In order to justify a racially or sexually discriminatory statute, it is not enough for the 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 interest. Furthermore, the holding of Burning Tree II on the ERA issue relied on the “analytically indistinguishable [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 ultimately, to the enactment of Article 46 itself. Therefore, the majority in the present case errs fundamentally in its assertion that “[virtually every Maryland case applying Article 46 has dealt with situations where the distinction drawn by a particular governmental enaction or action singled-out for disparate treatment men and women as discrete classes.” See op. at 258-59, 932 A.2d at 594.

*384C. 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 subsequent 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 (1993), was an appeal of a murder conviction in which the defendants contested the State’s use of peremptory challenges 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, 82-83 (1986) (race-based peremptory strikes presumptively 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 words of Judge Orth, speaking for the majority:

The equality of rights under law, without regard to gender, bestowed by Art. 46 of 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 (1986), prohibits the State 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 653 (emphasis added). Because the Supreme Court had not yet37 addressed the applicability of Batson to sex-based peremptory strikes, and because this Court had specifically reserved the question, Tolbert v. State, 315 Md. 13, 23 n. 7, 553 A.2d 228, 232 n. 7 (1989), it was necessary that we construe the ERA to require “ ‘substantial justification’ ” for “ ‘state action providing for segregation based upon sex’,” just as the Fourteenth Amendment applies to segregation based upon race. Tyler, 330 Md. at 265, 623 A.2d at 651. Indeed, the ERA was outcome *385determinative; we reversed the Court of Special Appeals, which had 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. State, 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 individual stricken juror not to suffer state sanctioned discrimination, rejecting a separate but equal approach. See Tyler, 330 Md. at 263, 623 A.2d at 649 (“ ‘[T]he State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.’ ”), quoting Batson, 476 U.S. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 82. Compare Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773 (1965) (“[W]e cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given 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 defendant who must demonstrate a systematic use of peremptory challenges to exclude African-Americans “over a number of cases.”). Whereas Swain burdened the defendant with the virtually impossible task of demonstrating a pervasive discriminatory pattern over the course of many 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 defendant. 476 U.S. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. Moreover, the Batson Court noted the application of equal protection principles to the excluded ju*386rors, not merely to the defendant. Id. at 97-98, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 88.

Ultimately, 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 Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411, 424 (1991), where the Court 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 peremptory challenges. The Court consciously “reject[ed] ... the view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors.” Powers, 499 U.S. at 410, 111 S.Ct. at 1370, 113 L.Ed.2d at 424-25. See also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 159, 114 S.Ct. 1419, 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 Court’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 proceeding, the sex of either parent in awarding 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 discretion. Id. at 144-45, 716 A.2d at 1035. That discretion is not unlimited, however; the judge cannot, consistent with the “clear, unambiguous and unequivocal” language of Article 46, id. at 148, *387716 A.2d at 1037, assume that a parent will be a better custodian of her child solely because she is of the same sex. Id. at 155, 716 A.2d at 1040. We said that “this Court has interpreted the Amendment’s ‘broad, sweeping mandatory language,’ as the expression of Maryland’s commitment to equal rights for men and women and the statement 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 sexes demanded by the Maryland Equal 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 determination would satisfy the equal application approach.

In Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998), a candidate running for Maryland State Senate filed suit in the Circuit 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 was whether the incumbent, Senator Clarence W. Blount, could run for reelection in a district entirely in Baltimore City despite the fact that he spent some “90 percent” of his nights at a condominium maintained by his wife in Pikesville, Baltimore County. Id. at 375, 718 A.2d at 1119. This Court conducted a thorough analysis of the law of domicile in light of Article III, Section 9 of the Maryland Constitution,38 because our case law has *388construed “resided” to mean “domiciled.” Blount, 351 Md. at 365, 718 A.2d at 1113. Although the domicile of Mrs. Blount was not directly at issue, this Court noted 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 basis of sex. See Ehrlich v. Perez, 394 Md. 691, 717 n. 10, 908 A.2d 1220, 1236 n. 10 (2006) (“ ‘[B]ecause of the Equal Rights Amendment to the Maryland Constitution ..., classifications based on gender are suspect and subject to strict scrutiny.’ ”); Murphy v. Edmonds, 325 Md. 342, 357 n. 7, 601 A.2d 102, 109 n. 7 (1992) (same); Ritchie v. Donnelly, 324 Md. 344, 366, 597 A.2d 432, 443 (1991) (sex-based discharge of State employee “clearly not permitted” by Article 46); Briscoe v. Prince George’s County Health Dept., 323 Md. 439, 452 n. 7, 593 A.2d 1109, 1115 n. 7 (1991) (“[B]ecause of Article 46 ..., gender-based classifications are suspect and are subject to strict scrutiny. Consequently, a classification based on gender is in no way comparable to an employment classification based on different 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 the ERA, Burning Tree II, 315 Md. at 293-96, 554 A.2d at 386-87, the majority must *389look, 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 altogether. See op. at 265-67, 932 A.2d at 598-99. 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 under our ERA. Among these are In re Kandu, 315 B.R. 123 (Bankr. W.D.Wash.2004) (decided under federal law); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (no state ERA); Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999) (same); and Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) (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 example, the Supreme Court of New Mexico considered whether the Secretary of the New Mexico Human Services Department could implement a regulation, Rule 766,39 restricting state reimbursement to abortion providers under the Medicaid program. N.M. Right to Choose/NARAL v. Johnson, 126 N.M. 788, 975 P.2d 841 (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 life of the mother, to terminate an ectopic pregnancy,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 *390of medical necessity that included any pregnancy having “a profound negative impact upon the physical or mental health 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 mother, but permits states, at their own expense, to reimburse all “medically necessary” abortions, id., the plaintiffs argued that the New Mexico Constitution afforded greater protection than the federal 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. Because Rule 766 did not apply the same standard of medical necessity to both males and females, the rule was presumptively unconstitutional under the ERA, and the court found no compelling justification for the rule. Id. at 857. The court based 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 our state constitution, we conclude that New Mexico’s Equal Rights Amendment is a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination that prevailed under the common law and civil law traditions that preceded it. As such, the Equal Rights Amendment requires a searching judicial inquiry *391concerning state laws that employ gender-based classifications. This inquiry must begin from the premise that such classifications are presumptively unconstitutional, and it is the State’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 classifications is rebuttable. Id. See Brown, 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 & Jacobus tenBrock, The Equal Protection of the Laws, 37 Cal. L.Rev. 341, 345 (1949). Instead, the court looked “ ‘beyond the classification to the purpose of the law.’ ” N.M. Right to Choose, 975 P.2d at 854, quoting Tussman & tenBrock, 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 of a discriminatory purpose and impact, is appropriate.”).

Because the statutory purpose was to provide qualified persons with necessary medical care, the court found that men and women who met a general need-based test for Medicaid eligibility were similarly situated, N.M. Right to Choose, 975 P.2d at 855, but that Rule 766 applied a different standard of medical necessity to women than to men. 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 inadequate, id. at 856-57, and that Rule 766 was not narrowly tailored to achieving those interests. Id. at 857.

*392In Guard v. Jackson, 132 Wash.2d 660, 940 P.2d 642 (1997), the Supreme Court of Washington addressed the constitutionality of a wrongful death statute42 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 no such requirement on the mother. The court applied the ERA to invalidate the statute, and to sever the support provision, affirming the decision of the intermediate appellate court. Id. at 645, aff'g Guard v. Jackson, 83 Wash. App. 325, 921 P.2d 544 (1996).

The court contrasted its standard of review of sex-based classifications with the more lenient federal equal protection standard,43 id. at 643, and noted that under Darrin and the ERA, “ ‘the equal protection/suspect 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-based classifications, id., the court held that the sex-based classification in the wrongful death statute did not bear even a rational relationship to the statutory purpose of excluding as plaintiffs those parents who fail to support their children. Id. at 645.

The Supreme Court of Colorado applied “the closest judicial scrutiny” under that state’s ERA44 to a sex-based classifica*393tion in Colorado 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 childbirth. Id. at 1359. The insurer argued that the exclusion did not discriminate against women, because there was no risk from which men were protected but women were not; however, the court disagreed. Id. at 1363. Instead, the court found discrimination because the insurance plan provided full coverage for men, including conditions for which men were uniquely 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 physiological condition that affects only women. Id. at 1364.

E. Singer v. Hora and Andersen v. King County not Persuasive

The majority in the present case considers a number of cases from our sister states as persuasive authority. See op. at 265-67, 932 A.2d at 598-99. As I have pointed out, many of these cases did not address the application of equal rights amendments. Of those that did, two are most significant: Andersen v. King County, 158 Wash.2d 1, 138 P.3d 963 (2006), and Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (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 *394its ERA to be inapplicable to same-sex marriage, it is important to examine Washington case law in this area.

Unlike in Maryland, there was a legal challenge to the statutory ban on same-sex marriages in Washington shortly after that State adopted its ERA. Singer, 522 P.2d at 1187. Two men who had been denied a marriage license sought a court order to compel a county 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 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 Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution. 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 entered into in which either party shall not have attained the age of seventeen years shall 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 necessity.

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 marriage 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 statute as applied violated the ERA. Id. at *3951190-95. The appellants argued that “to construe state law to permit a man to marry a woman but at the same time to deny him the right to marry another man is to construct an unconstitutional classification ‘on account of sex,’ ” but the court agreed with the State’s contention that “so long as marriage licenses are denied equally to both male and female pairs,” there was no ERA violation. 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 deemed 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 entered into only by two persons who 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. Virginia, 388 U.S. at 1, 87 S.Ct. at 1817, 18 L.Ed.2d at 1010, and Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948), the seminal cases invalidating anti-miscegenation statutes, were inapplicable. Singer, 522 P.2d at 1192 n. 8 (maintaining 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 on the federal constitutional issues. Id. at 1195-97.

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 Marriage Act (“DOMA”),46 the court considered the *396constitutionality 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. DOMA 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 echoes the opinion of the majority in the instant case. See op. at 265-66, 932 A.2d at 599. The difficulty lies in the inability of the Andersen court to recognize the true nature of the classification at issue; by failing to distinguish between sex-based classifications and those grounded in sexual orientation, the court avoids application of the ERA at the outset. Andersen, 138 P.3d at 988 (denial of marriage license “not based on their sex but upon the fact they were both of the same sex”), citing Singer, 522 P.2d at 1195. Cf. op. at 277, 932 A.2d 605, (“While Family Law § 2-201 does not draw a distinction based on sex, the legislation does differentiate implicitly on the basis of sexual preference.”). In all significant respects, the Andersen court adopted the ERA analysis of Singer, and thus, makes the same errors. Furthermore, the majority in the present case adopts the analysis of Singer and Andersen, and therefore, adopts those errors as well.

In my view, the Singer court erred in two significant respects: 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-*397sex 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 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. Furthermore, Section 2-201 clearly contemplates the possibility of marriages between two men or two women, because it singles out for special treatment “only” those marriages between a man and a woman. Therefore, the language of Section 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 majority in the instant case. Compare id. (“[T]he state suggests that appellants are 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, *398Inc. v. City of Lacey,[48] are contrary to the position taken by the state. We disagree.”), with op. at 264, 932 A.2d at 598 (“[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 principled basis for applying equal protection analysis 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 2-201 is facially neutral, and hence, the proper test for evaluating whether sex discrimination has occurred is to search for a discriminatory purpose. See op. at 270-71, 932 A.2d at 601-02. 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 “ ‘designf ] to subordinate either men to women or women to men as a class.’ ” See op. at 270, 932 A.2d at 601, quoting49 Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 11 (2006). Having avoided the sex-based classification at issue, and having found no invidious purpose, the majority in the present case retreats to rational basis review. See op. at 260-65, 932 A.2d 595-98. In reaching this result, the majority breathes life into the corpse of separate but 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 YI-IX of Chief Judge Murphy’s *399opinion announcing the judgment of the Court, even though that opinion is not an opinion of the Court. If the views set forth in Parts VI-VIII of Chief Judge Murphy’s opinion were in the future to be adopted by a majority of this Court, the effectiveness of the Equal Rights Amendment to the Maryland Constitution would 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 proposition that all state action that draws sex-based distinctions, regardless of whether such action “directly impostes] a burden or conferts] a benefit entirely upon either males or females,” id. at 95, 501 A.2d at 838 (opinion of Eldridge, J.), implicates the ERA and must be subjected to strict scrutiny. See In re Roberto d.B., 399 Md. 267, 279 n. 13, 923 A.2d 115, 122 n. 13 (2007) (“This Court has applied a strict scrutiny standard when reviewing gender-based discrimination claims.”); Murphy, 325 Md. at 357 n. 7, 601 A.2d at 109 n. 7 (“In Maryland, because of the Equal Rights Amendment to the Maryland Constitution ..., 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 today, this Court has never shied away from that standard when applying the ERA. See 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 1037 (“[T]he Equal Rights Amendment flatly prohibits gender-based classifications, absent substantial justification, whether contained in legislative enactments, governmental policies, or by application of common law rules.”); Burning Tree II, 315 Md. at 295, 554 A.2d at 387 (“Plainly, under prior holdings of this Court, state action providing for segregation based upon sex, absent substantial justification, violates the E.R.A., just as segregation based upon race *400violates the Fourteenth Amendment.”); 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 scrutiny, In re Roberto d.B., 399 Md. at 279 n. 13, 923 A.2d at 122 n. 13, to hold that the statutes must be construed in a sex-neutral fashion. Id. at 283, 923 A.2d at 124. On its face, Title 5, Subtitle 10 of the Family Law Article contemplated only the right of a man, found not genetically linked to a child, to petition a court to set aside a declaration of paternity.51 We applied the doctrine of constitutional avoidance to infer a judicial gloss to a statutory scheme that was silent to the possibility that a gestational mother could challenge maternity. 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 on the unequal 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 purportedly equal basis, Powers, 499 U.S. at 410, 111 S.Ct. at 1370, 113 L.Ed.2d at 425; Loving, 388 U.S. at 8, 87 S.Ct. at 1822, 18 L.Ed.2d at 1016,52 so too have we held that the equal *401application of discriminatory laws does not preclude strict scrutiny under Article 46. In re Roberto d.B., 399 Md. 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 Judge Murphy in Burning Tree I, 305 Md. at 64, 501 A.2d at 822, to support its view that Section 2-201 passes muster 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 Rights Amendment focuses on ‘rights’ of individuals ‘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 argument; neither does the Court’s holding in the case, as I explained previously. 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 concerned. Therefore, the State’s argument is fundamentally misplaced. Likewise, the 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 *402about 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 summarize, in a long line of cases extending back to Gáffin, Burning Tree I and II, Condore, Kline and Rand, we have consistently interpreted the ERA to require that 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 rights made by the General Assembly and ratified by the People of this 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 Amendment, thus, is that sex is not a permissible factor in determining the legal rights of women, or men, 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 other one.”

(emphasis added). Clearly, this language means that the analysis must focus on the individual whose rights are infringed by the sex-based classification, because 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 Amendment focuses on ‘rights’ of individuals ‘under the law,’ which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens. *403As to these, the Maryland E.RA. 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 determination.”

Id. at 281-82, 923 A.2d at 124, quoting Griffin, 351 Md. at 149, 716 A.2d at 1037 (alteration in original). The majority in the present case deliberately misconstrues the passage quoted above through selective quotation, conveniently omitting the second sentence, to support its narrowly constrained view of the ERA as somehow permitting separate but “equal” in matters of sex discrimination. See op. at 258-59, 932 A.2d at 594-95. Its strained interpretation ignores what until today had been well-settled in Maryland: the ERA is intended to address the rights of individuals, not the rights of “men and women as classes.” See op. at 259, 932 A.2d at 595 (emphasis in original). Our predecessors stated a similar idea in 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.”

I repeat: the words of the ERA are clear and unambiguous and can only mean that the rights of any person under the law cannot be abridged because of sex. The majority today pursues a results-based jurisprudence that distorts our case law construing the ERA, and in so doing, dilutes its effect.

II. The State’s Arguments Against Applicability of Article 46

The State focuses most of its argument against application 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-sex marriage ban is constitutional.

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 *404Family 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 overwhelming margin 120-1, see 1972 Maryland House Journal 1281-82 (Mar. 22, 1972); the Senate voted 39-0 in favor. See 1972 Maryland Senate Journal 1899 (Apr. 1, 1972). In 1973, the same legislature passed Senate Bill 122, a measure adopting the same-sex marriage ban. The measure passed the House by 112-1, see 1973 Maryland House Journal 2743 (Apr. 1, 1973); the Senate voted 37-1 in favor. 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 vote for the ERA are included, then the total number of Delegates in favor of both 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 legislation clarifying that the State recognizes only a marriage between a man and a woman.”

The difficulty with this argument is two-fold. First, the State offers no basis for distinguishing the situation involving *405the unconstitutional statute55 enacted by the General Assembly 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 contemporaneous with Section 1 of Article 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 marriage ban and the ERA with the additional rule of constitutional interpretation elaborated in Hornbeck v. Somerset County Board of Education, 295 Md. 597, 620, 458 A.2d 758, 770 (1983):

In this regard, it has been held 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 undeniable 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 1972. See, e.g., Giffin, 351 Md. at 133, 716 A.2d at 1029; Condore, 289 Md. at 516, 425 A.2d at 1011; Kline, 287 Md. at 585, 414 A.2d at 929; Rand, 280 Md. at 508, 374 A.2d at 900.

*406In 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, Section 2-201 is facially neutral and simply does not constitute sex discrimination. The State’s argument focuses on discrimination based on sexual orientation, a classification indisputably within the scope of Section 2-201. Relying on the statutory scheme established by the Commission on Human Relations, Article 49B, Maryland Code (1957, 2003 RepLVol.), as amended, 2001 Maryland Laws, Chapter 340,56 the State maintains that the General Assembly has demonstrated repeatedly its ability to distinguish “sex” from “sexual orientation,” and because Article 46 is silent on “sexual orientation,” the logical conclusion is that Family Law Section 2-201 was never intended to fall *407inside the scope of Article 46. The majority adopts this interpretation, stating that “[t]o 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 Assembly and the State’s voters who enacted and ratified, respectively, the amendment.” See op. at 264-65, 932 A.2d 598.

This argument is entirely irrelevant to the question of constitutionality of sex-based classifications under Article 46 and hence, is a classic red herring. Although the majority 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 2-201 does not prohibit homosexuals from marrying; in fact, a homosexual male 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 Appellees in the present ease allege that Section 2-201 has a discriminatory effect, regardless of its alleged facial neutrality, and that the landmark Supreme Court decision in Loving, 388 U.S. at 1, 87 S.Ct. at 1817, 18 L.Ed.2d at 1010, should control the outcome here. Loving involved the State assertion of an analogous allegedly neutral, generally applicable statute prohibiting miscegenation. Id. at 2, 87 S.Ct. at 1818, 18 L.Ed.2d at 1012. The Court applied strict scrutiny to the Virginia statute despite its ostensibly equal application to both races. 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 Amendment has traditionally required of state statutes drawn according to race.”). Not only did the Court weigh the long history of white supremacy and racial segregation heavily against the State, but the Court *408found the anti-miscegenation statute applied only to interracial marriages involving whites, and thus, was not facially neutral as asserted by Virginia. Id. at 11-12, 87 S.Ct. at 1823, 18 L.Ed.2d at 1017-18. The Court reached its holding independently of the issue of discriminatory intent, however, “find[ing] the racial classifications in these statutes repugnant 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 justification. Id. at 11, 87 S.Ct. at 1823, 18 L.Ed.2d at 1017 (“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”).

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 reinforced 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 unless the threshold question of facial neutrality is answered in the affirmative. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 1549, 143 L.Ed.2d 731, 738 (1999) (“When racial classifications are explicit, no inquiry into legislative purpose is necessary.”); Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 2824, 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 plausible assertion that Section 2-201 accrues only to the benefit of either men or women as a class. Just as in Rand, Kline, Condore, Burning Tree I and Giffm, however, there is sex discrimination at the level of the individual who wishes to marry but is precluded from doing so *409because 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 basis of sex. Manifestly, Section 2-201 classifies on the basis of sex; because 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 scrutiny.

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 scrutiny only if it “further[s] a compelling state interest,” and “if it is deemed to be suitably, or narrowly, tailored” to achieving that goal. Koshko v. Earning, 398 Md. 404, 438, 921 A.2d 171, 191 (2007); Burning Tree E, 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 classifications subject to strict scrutiny must “ ‘ “fit” this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate ... prejudice or stereotype.’ ” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226, 115 S.Ct. 2097, 2112, 132 L.Ed.2d 158, 181 (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 means.” 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 (1974).

*410An 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 rape other than as a principal in the second degree, because vaginal intercourse is required,58 see, e.g., Wilson v. State, 132 Md.App. 510, 517-18, 752 A.2d 1250, 1254 (2000); nevertheless, this sex-based distinction has been upheld under strict scrutiny. See, e.g., People v. Green, 183 Colo. 25, 514 P.2d 769, 770 (1973) (upholding Colorado *411rape statute59 against an ERA challenge).

Other examples of sex-based classifications that were upheld under an ERA analysis include prohibitions on public nudity that prohibit display of female breasts, City of Seattle v. Buchanan, 90 Wash.2d 584, 584 P.2d 918 (1978); City of Albuquerque v. Sachs, 135 N.M. 578, 92 P.3d 24 (App.2004); Messina v. State, 904 S.W.2d 178 (Tex.App.1995), and affirmative action programs designed to alleviate the effects of past discrimination. Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 850 N.E.2d 533 (2006); S.W. Wash. Chapter, Nat’l Elec. Contractors Ass’n v. Pierce County, 100 Wash.2d 109, 667 P.2d 1092 (1983). Thus, strict scrutiny of sex-based classifications under the ERA need not always be “strict in theory, but fatal in fact.” 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 compelling state interest).

*412Because the early equal protection cases typically examined racial classifications, subsequent jurisprudence in the area of gender discrimination necessarily analogized to the precedents 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 sex-based discrimination on the basis of the inherent differences between the sexes. See Brown, supra at 893-96. See also United 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 for racial and national origin classifications, but that “[pjhysical differences between men and women ... are enduring”). Evolution of the law in this area has been, in no small 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 (1982). The movement among the several states to enact equal rights amendments was motivated, in part, to counteract the tendency of courts to extend deference to sexual stereotypes cloaked as truly substantial differences. Brown, supra at 879-82. There can be no doubt that Marylanders overwhelmingly 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 for men and women. The 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.”).

The only operative distinction between sex-based and race-based classifications 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 Md. at 98, 501 A.2d at 840. However, this distinction has been construed narrowly, generally applying only to cases of obvi*413ous anatomical differences. For example, the ERA has been interpreted to permit separate bathrooms for each sex in public accommodations, id. at 98 & n. 8, 501 A.2d at 840 & n. 8, and rape statutes that punish only men. Brooks v. State, 24 Md.App. 334, 337-39, 330 A.2d 670, 672-73, cert. denied, 275 Md. 746 (1975); 74 Op. Att'y Gen. 19, 22 (Md.1989). See also People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976); Green, 514 P.2d at 770. Chief Judge Murphy suggested, if anything, an even narrower construction of the “inherent differences” exception to strict scrutiny. See Burning Tree I, 305 Md. at 64 n. 3, 501 A.2d at 822 n. 3 (“Disparate treatment on account of physical characteristics unique to one sex is generally regarded as beyond the reach of equal rights amendments.”). Accord Brown, supra at 893 (“The fundamental legal principle underlying the Equal Rights Amendment, then, is that the law must deal with particular attributes of individuals, not with a classification based on the broad and impermissible attribute of sex. 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 one 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 marriage arose out of an inchoate recognition that reproduction of our species and thus, the very future existence of society, is inextricably linked to the state interest in promoting the formation of stable, nurturing families beginning with the intimate sexual union of a man and a woman. Fomshill v. Murray, 1 Bland 479, 481 (1828) (“Marriage has been considered among all nations as the most important contract into which individuals can enter, as the parent not the child of civil 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, “permitted] a club to engage in periodic sex discrimination in any of its facilities for any reason at all”; *414consequently, the statute failed the narrow tailoring requirement. 315 Md. at 296, 554 A.2d at 387. The touchstone of narrow tailoring 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 burdensome means to further its interest. Dunn v. Blumstein, 405 U.S. 330, 343, 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. Regardless of the applicable 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 challenged classification. See, e.g., Heller v. Doe, 509 U.S. 312, 320-21, 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 classification____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 omitted) (alteration in original). Under both intermediate and strict scrutiny, on the other hand, the government has the burden of justifying the challenged classifications. 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 States v. Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (Under intermediate scrutiny, “[t]he burden of justification is demanding 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 *415the statute is necessary to promote a compelling governmental interest.”).

The compelling interests asserted in the State’s brief are (1) maintaining the same definition of marriage as that mandated 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 marriage because it is so deeply ingrained in our history and traditions.

The first state interest expresses a general public policy of promoting comity in relations with our sister states and the federal government; undoubtedly that interest could comport with rational 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 (1975, 2005 Repl.Vol.) (Maryland Uniform Trade Secrets Act). The policy of promoting uniformity is not confined to our statutory law; our cases are replete 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 fundamental difficulty with the State’s argument, however, is that it has pointed to no case, nor am I aware of a single case, where this Court has held that 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 *416organic law conflicts with the U.S. Constitution itself. 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 of Fourteenth Amendment Equal Protection Clause); 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 disproportionate numbers of African-Americans held in violation of Fourteenth Amendment Equal Protection Clause).

The State’s argument that there 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 wholly without merit. If we were to accept this argument, we would 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 Citizens Ass’n v. Gudis, 319 Md. 558, 573 A.2d 1325 (1990), is easily distinguished from the instant case, because that case dealt with a county ethics law purporting to confer authority on a court to void legislation whenever it thought the public interest so required, which we determined violated the constitutional separation of powers mandated by Article 8 60 of the Declaration of Rights. Here we deal with a constitutional challenge to legislative action; our authority to construe the Maryland Constitution is mandated by Article IV, Section 161 of our Constitution. See Galloway v. State, 365 Md. 599, 611, 781 A.2d 851, 858 (2001) *417(“If, however, 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 still ring true today:

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 each other.

It is the office and province of the Court to decide all questions of law which are judicially brought before 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 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 (1974), citing to, inter alia, Fomshill, 1 Bland at 479. Indeed, in Fomshill our predecessors expressed the view that “[mjarriage has been considered *418among all nations as the most important contract into which individuals can enter, as the parent not the child of 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. Undoubtedly, 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 woman. “What had not been fathomed exists today,” however. 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 procreation62 is now called into question.

Although infertility is not a bar to marriage, it is nonetheless true that traditional marriage remains the only way to create families in which children are biologically related to both parents. Certainly it is true that opposite-sex couples can and do cohabit and produce offspring and thus create nontraditional families, but that very fact points to the substantiality of the state interest: the State asserts a strong interest in encouraging opposite-sex couples to formally recognize their child-bearing unions. The difficulty faced by the State is that this interest has been posed and defended successfully only under the deferential rational basis standard. See, e.g., Andersen, 138 P.3d at 982-83; Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 7. Likewise, the argument that the State has an interest in promoting marriage between opposite-sex couples because their careless sexual unions pose a significant possibility of creating offspring and all the attendant burdens and *419duties, whereas same-sex couples cannot reproduce without extensive, expensive outside intervention that evinces a far greater level of responsibility and commitment, has been upheld only under rational basis scrutiny. 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 obviously implies failure under strict scrutiny. Logically that theory is unassailable as far as it goes, but the Appellees do not address a crucial underlying assumption: in order to dispose of the opponent’s arguments, it is necessary in the first instance actually to address each opposing argument. Many of the arguments disposed of in the Appellees’ brief almost certainly would fail under the strict scrutiny mandated under Article 46. Thus, arguments that the same-sex marriage ban promotes cost savings or that the ban is justified on grounds of “legislative hegemony” obviously fail strict scrutiny. Indeed, such assertions approach the level of straw man arguments, a status undoubtedly applicable to the supposed state interest in “discrimination for its own sake.” The Appellees also dispute the notion that the same-sex marriage ban rationally furthers a legitimate state interest in child welfare; here the Appellees stand on shakier ground, and quite possibly would 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 1003, 31 L.Ed.2d at 285, to further the undoubtedly substantial state interest in promoting child welfare. 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 argu*420ment asserted with particular force by amici, The American Center for Law & Justice. The phenomena of assisted reproduction and same-sex marriage are so new and radical that there exists no evidence thus far to support or refute the asserted link and its concomitant external effects. Thus far, courts that have weighed this argument favorably have done so under rational basis review. See, e.g., Hernandez, 821 N.Y.S.2d 770, 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 2-201 merely clarifies society’s compelling interest in “the historic family unit as a mechanism for protecting the progeny of biological unions,” actually asserts the state interest in promoting an orderly, stable society. See Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 997 & n. 20 (2003) (Cordy, J., dissenting) (“Tt is important to distinguish the individual interests in domestic relations from the social interest in the family and marriage as social institutions.’ ”). On the present state of the record, I believe neither party has explored this issue in the depth appropriate to an issue of such permanent, 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 evidentiary hearing. Without expressing an ultimate opinion on whether the State 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 trier of the facts upon the weight of the evidence, summary judgment can not be granted.” 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 inappropriate to reach this issue on the basis of such an undeveloped record. See Montgomery County v. Broad. Equities, Inc., 360 Md. 438, 457, 758 A.2d 995, 1005 *421(2000) (“[T]he constitutional exception to the exhaustion requirement does not apply when the constitutional challenge to a statute ‘as a whole’ involves the need for some factual exploration, which may be necessary when statutory classifications are challenged on equal protection grounds or under Article 46 of the Maryland Declaration of Rights.”); Ins. Comm’r v. Equitable Life Assurance 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.

. There have been three Burning Tree cases decided by this Court: State ex rel. Attorney Gen. v. Burning Tree Club, Inc., 301 Md. 9, 481 A.2d 785 (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 prevent confusion, I have adopted the same methodology.

. Article 46 of the Maryland Declaration of Rights also is known as the Equal Rights Amendment (“ERA”).

. See Giffin v. Crane, 351 Md. 133, 149, 716 A.2d 1029, 1037 (1998); Burning Tree I, 305 Md. at 70, 501 A.2d at 825 (opinion of Murphy, C J.). According to the "equal application” approach, the ERA “generally invalidates” governmental action that “imposes a burden on, or grants a benefit to, one sex but not the other one.” Giffin, 351 Md. at 149, 716 A.2d at 1037. Under this approach, without a denial or abridgment of equal rights under the law “as between men and women,” the ERA is not implicated. Burning Tree I, 305 Md. at 70, 501 A.2d at 825.

. The Rand Court cited Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 893 (1975), for the proposition that the ERA itself was the compelling state interest in a strict scrutiny analysis under the Washington State version of the ERA. See also Burning Tree I, 305 Md. at 97, 501 A.2d at 839, where Judge John C. Eldridge pointed out that the Rand standard may be "stricter ... than the 'strict scrutiny’ test.”

. At the time the suit was originally filed, Stewart Bainum was also a Maryland State Senator from Montgomery County; however, this fact bore no relationship to his standing to bring suit. 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.

. Section 19(e) of Article 81, Maryland Code (1957, 1980 Repl.Vol.), provided in relevant part (emphasis added):

*359(e) Country clubs.—(1) The State Department of Assessments and Taxation shall have the power to make uniform agreements pursuant to this subsection relative to the assessment and taxation of lands actively devoted to use as a country club as defined herein.

(2) Pursuant to such agreement or any extension thereof with the State Department of Assessments and Taxation, land which is actively devoted to use as a country club as defined herein shall be assessed on the basis of such use for the period of time provided for in the agreement or any extension thereof and shall not be assessed as if subdivided or used for any oilier 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 however, that no taxes shall be due and payable upon such greater 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 be practiced any form of discrimination 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 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.

(7) If, prior to the expiration of the agreement, or any extension thereof, part or all of the property is conveyed to a new owner, or said property ceases to be used as, or fails to qualify as, a country club, as defined herein, then at such time as part or all of the property is conveyed, or at such time as said property 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 applicable for the particular year or years involved, upon the difference between the assessment or assessments made pursuant to subparagraph (2) and the assessment or assessments made pursuant to subparagraph (3) hereof, for the taxable years included in the following time period shall immediately become due and payable[.]

. The plaintiffs also alleged that Section 19(e)(4)(i) violated Articles 15 and 24 of the Maryland Declaration of Rights. Article 15 provides, in *360relevant part:

[A]ll taxes thereafter provided 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 may properly and justly be imposed, or laid with a political view for the good government and benefit of the community.

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 deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.

. The circuit court did not reach the plaintiffs’ claims under Articles 15 and 24, and neither did we. Burning Tree I, 305 Md. at 61, 501 A.2d at 821.

. The Equal Protection Clause of the Fourteenth Amendment has been held 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 the ERA, the state action doctrine has been held in pari materia with the "under the law” provision. Id. at 90 n. 3, 501 A.2d at 836 n. 3. See, e.g., Brentwood Acad. 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 (2001) (state action equivalent to "under color of state law”); Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534, 546 (1982) (mere fact a business is regulated by the state does not automatically transform such regulation into state action for purposes of the Fourteenth Amendment); 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, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477, 484 (1974) ("[T]he inquiry 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 nonpayment held 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 discriminatory 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 state action).

. The complaint challenged only the "primary purpose” clause, not the periodic discrimination clause; therefore, the circuit court limited *362its ERA analysis to that issue. Burning Tree I, 305 Md. at 80, 501 A.2d at 830-31.

. Chief Judge Murphy regarded the open space program as the statutoiy purpose, a contention the plaintiffs, and Judge Eldridge, disputed. Compare Burning Tree I, 305 Md. at 76, 501 A.2d at 828 ("The purpose of the statute [was] to preserve 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 women and still receive the state subsidy.”). In Judge Eldridge's view, the problem was the conflation in the Chief Judge's opinion of the original statute and the amended version, 1974 Maryland Law, Chapter 870, which contained the disputed anti-discrimination provision. Burning Tree I, 305 Md. at 101-02, 501 A.2d at 842.

. Chief Judge Murphy said that under the facts of Burning Tree I, it was unnecessary to give "detailed consideration to whether state action in providing ‘separate but equal’ facilities for men and women violates the E.R.A.” Although conceivably such a law "might be subject to challenge,” Section 19(e)(4) "does not require ” separate but equal facilities, but simply "recognizes " that single sex clubs may be eligible to participate in the state program. 305 Md. at 79, 501 A.2d at 830 (emphasis added).

. That Judges Eldridge and Rodowsky were prescient in their views on the individualized level of strict scrutiny was confirmed in the recent Supreme Court decision Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S.-,-, 127 S.Ct. 2738, 2753, 168 L.Ed.2d 508, 524-25 (2007), where Chief Justice John G. Roberts, Jr. said:

*367The entire gist of the analysis in Grutter[ v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 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 by race upheld in Grutter was only as part of a "highly individualized, holistic review,” 539 U.S. at 337, 123 S.Ct. [at 2343, 156 L.Ed.2d at 338],

The analogy to the instant case is clear. See also Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 2486, 132 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 follows from” the "basic principle that the Fifth and Fourteenth Amendments ... protect 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 equal protection of the laws has not been infringed.”) (citation omitted) (emphasis in original).

. The majority attempts to parse the meaning of the ERA from contemporaneous newspaper articles, see op. at 247-50 & n. 17, 932 A.2d at 587-89 & n. 17, although we have questioned the legitimacy of so doing. See In re Jason W., 378 Md. 596, 607-11, 837 A.2d 168, 175-*36878 (2003) (Harrell, J., concurring); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 661, 458 A.2d 758, 792 (1983) (Cole, X, dissenting). To appreciate the weakness of reliance on newspaper articles, consider the fact that an analysis of the interpretive methodology of this Court over the period from 1987 to 1994 revealed only one case out of sixty-six where this Court even mentioned newspaper accounts in the context of statutory interpretation. See Jack Schwartz & Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and Misuse of Legislative History, 54 Md. L.Rev. 432, 466-72 (1995).

. The statute stated, in relevant 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, cosmetologists aides, cosmeticians, beauticians or beauty culturists and demonstrators of beauty preparations or equipment, and however denominated in so-called hairdressing and beauty shops ordinarily patronized by women, which work is for the embellishment, cleanliness and beautification of women’s hair, such as arranging, dressing, curling, 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.Code (1957, 1973 Supp.), Art. 43, § 529(a).

. Before July 1, 1973, the statute stated:

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 barber includes, but 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 where in the discretion of the Board, special circumstances merit exemption. This section shall not be construed as a limitation or restriction upon the services which licensed cosmetologists are permitted to perform pursuant to the provisions of this article.

Md.Code (1957, 1973 Supp.), Art. 43, § 323.

. Kuhn is not inconsistent with Burning Tree I. Bainum had taxpayer standing in Burning Tree I because Maryland has liberal rules of standing for taxpayer suits. See Burning Tree II, 315 Md. at 293, 554 A.2d at 385 ("The cases 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.

. See Darrin, 540 P.2d 882. The Supreme Court of Washington held that a rule prohibiting girls from participating in high school football violated that State’s ERA, and that the ERA itself was the compelling state interest. Id. at 893.

. Alienation of affections was a common law cause of action that arose when a man induced a married woman to leave her husband, or otherwise interfered with the marital relationship. Unlike criminal conversation, alienation of affections did not require proof of adultery as a separate element. See Kline v. Ansell, 287 Md. 585, 590, 414 A.2d 929, 932 (1980).

. See, e.g., Opinion of the Justices to the House of Representatives, 374 Mass. 836, 371 N.E.2d 426, 427-28 (1977) (applying strict scrutiny to invalidate exclusion of girls from state-sanctioned contact sports); Darrin, 540 P.2d at 893 (same); People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, 101 (1974) (applying strict scrutiny to invalidate statute that permitted 17-year-old boys to be charged as adults, but precluded like treatment of 17-year-old girls).

. Unlike the majority, see op. at 265-67, 932 A.2d at 598-99, the opinions I cite actually were decided on the basis 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 were not decided under a state ERA: In re Kandu, 315 B.R. 123 (Bankr.W.D.Wash.2004) (decided under federal law); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (no state ERA); Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999) (same); and Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) (same).

. Mass. Const, pt. I, art. I ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”).

. Unlike Maryland, in Massachusetts the Supreme Judicial Court is required 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, upon important questions of law, and upon solemn occasions.”).

. The Supreme Court developed the so-called intermediate scrutiny test for certain equal protection claims, including those based on sex classifications. 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 achieving the objectives); Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583, 592 (1973) (Plurality 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 therefore be subjected to strict judicial 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 review). But cf. United States v. Virginia, 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 standard closer to strict scrutiny).

. 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 equally belong to all citizens, or corporations.

Wash. Const, art. I, § 12. This provision is also known as the Privileges and Immunities Clause.

. Wash. Const, art. XXXI, § 1. The Washington ERA states:

Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.

. Hanson v. Hutt, 83 Wash.2d 195, 517 P.2d 599 (1973). The ERA was inapplicable because the cause of action arose in 1971, before the December 7, 1972 effective date of the ERA. Id. at 601, 603 n. 3.

. 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.2d at 592. See supra note 24.

. Ill. Const. 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.”).

. The statute in force at the time of the crimes stated:

Except as provided in this Section, 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.Stat.1971, ch. 37, ¶ 702-7(1). The current gender neutral statute is codified at 705 Ill. Comp. Stat. 405/5-120 (1999).

. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 1923, 85 L.Ed.2d 222, 231 (1985), held that an Alabama 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 neutrality. Id. at 227, 105 S.Ct. at 1919-20, 85 L.Ed.2d at 227-28.

. 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 racially disproportionate impact, because there was insufficient evidence of a racially discriminatory motive in the Village’s zoning decision.

. Gomillion v. Lightfoot, 364 U.S. 339, 340-2, 81 S.Ct. 125, 127, 5 L.Ed.2d 110, 113 (1960), held that action by a state legislature redefining the boundaries of a municipality was potentially 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 substantive issue. Id. at 348, 81 S.Ct. at 130, 5 L.Ed.2d at 117. In a concurring opinion, Justice Whittaker argued that the Court should have analyzed the case under the Fourteenth 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 adopted this rationale. See Shaw v. Reno, 509 U.S. 630, 645, 113 S.Ct. 2816, 2825-26, 125 L.Ed.2d 511, 527 (1993).

. The periodic discrimination 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 *382national 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, 1987 Supp.). In the time span between Burning Tree I and Burning Tree II, Article 81 had been recodified as the Tax-Property Article. See supra note 6.

. As the majority points out, Burning Tree II also presented issues under, inter alia, the First Amendment, the Contract Clause (Article I, Section 10), and Article III, Section 33 of the Maryland Constitution. See op. at 256 n. 21, 932 A.2d at 593 n. 21; Burning Tree II, 315 Md. at 261-62, 554 A.2d at 370. These issues are unrelated to the instant case.

. Whether the state interest was merely "legitimate,” "substantial,” or "compelling” was immaterial to the case at hand. Subsequent decisions of this Court leave no doubt that the appropriate state interest must be at least "substantial.” See In re Roberto d.B., 399 Md. 267, 279 n. 13, 923 A.2d 115, 122 n. 13 (2007). I generally agree with the majority opinion’s statement of the standards of review governing equal protection and substantive due process claims, see op. at 271-76, 932 A.2d at 602-05, with the added proviso that under rational basis review, the burden of persuasion lies with those challenging the government action, whereas under both intermediate and strict scrutiny, the burden of persuasion rests with the State.

. Subsequently the Supreme Court would extend Batson to preclude sex-based peremptory challenges. J.E.B. v. Alabama ex reí. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89, 98 (1994).

. This constitutional provision governs, inter alia, 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 which he has been chosen to represent has been *388established 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 less than six months prior to the date of his election, then in addition to (1) and (2) above, 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-five years, or as a Delegate, if he has attained the age of twenty-one years, on the date of his election.

Md. Const. art. III, § 9.

. Pursuant to N.M. Stat. § 27-2-12 (1993), the Department was responsible for establishing rules 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.

. An ectopic pregnancy "occur[s] elsewhere than in the cavity of the uterus.” Stedman’s Medical Dictionary 611 (28th ed.2006).

. N.M. Const. Art. II, § 18. The New Mexico Constitution incorporated 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 laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall be July 1, 1973.

. The relevant statutory provision stated:

The mother or father or both may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either, or both, are dependent for support: PROVIDED, That in the case of an illegitimate child the father cannot maintain or join as a party an action unless paternity has been duly established and the father has regularly contributed to the child’s support.

Wash. Rev.Code § 4.24.010 (1973).

. Under the more lenient federal equal protection analysis, the Supreme Court has upheld a similar Georgia wrongful death statute. 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 and 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 scrutiny. Id. at 359-60, 99 S.Ct. at 1749-50, 60 L.Ed.2d at 279-80 (Powell, J., concurring).

. Colo. Const, art. II, § 29 (“Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.”).

. Wash. Rev.Code §§ 26.04.020-040 (1970) (prohibited marriages); id. at § 26.04.210 (affidavits required for issuance of marriage license).

. The Washington Defense of Marriage Act (“DOMA”) amended two statutes; the amended versions, in relevant part, are as follows:

(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 age of seventeen years is void except where this section has been waived by a superior court judge of the county in which one of the parties resides on a showing of necessity.

Wash. Rev.Code § 26.04.010 (1998).

*396(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 jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (l)(a), (l)(c), or (2) of this section.

Wash. Rev.Code § 26.04.020 (1998).

. The argument about the plain meaning of Section 2-201 applies with equal force to the Washington DOMA at issue in Andersen.

. In J.S.K. Enterprises, Inc. v. City of Lacey, 6 Wash.App. 43, 492 P.2d 600 (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.

. Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006), the recent New York same-sex marriage case, is inapposite to the instant case because New York lacks an ERA.

. Md.Code (1984, 2006 Repl.Vol.), §§ 5-1001 to—1048 of the Family Law Article.

. Section 5-1038(a)(2)(i) of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.), reads in relevant part:

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.

. In Powers, the Court said "[t]he suggestion that racial classifications may survive when visited upon all persons is no more authoritative *401today than the case which advanced the theorem, 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 Amendment’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 serve a rational purpose.”).

. 1973 Maryland Laws, Chapter 213 amended Section 1 of Article 62, Maryland Code (1957, 1972 Repl.VoL), to read: "Only a marriage between a man and a woman is valid in this State. If any person within this State shall marry within any of the degrees of kindred or affinity expressed in the following table, the marriage shall be 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 of consanguinity and affinity. The first sentence of Section 1 of Article 62 is identical to the current statute, Section 2-201 of the Family Law Article, Maryland Code (1984, 2006 Repl.VoL).

. In 1972-73, the total number of Delegates was 142, and the number of Senators was 43. See 1969 Md. Law, Chap. 785, amending Md. Const, art. Ill, § 2.

. 1974 Md. Laws, Chap. 870. See Burning Tree I, 305 Md. at 56, 501 A.2d at 817.

. 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 female homosexuality, heterosexuality, or bisexuality.

(b) Prohibited.—It is unlawful for an owner or operator of a place of public accommodation or an agent or employee of the owner or operator, because of the race, creed, sex, age, color, national origin, marital status, sexual orientation, or disability of any person, to refuse, withhold from, or deny to such person any of the accommodations, advantages, facilities and privileges of such place of public accommodation.

Md.Code (1957, 2003 Repl.VoL), Article 49B, § 5. From a related statute prohibiting discrimination in public accommodations:

(a) In general.—It is unlawful for any person, business, corporation, partnership, copartnership or association or any other individual, agent, employee, group or firm which is licensed or regulated by a unit in the Department 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, age, marital status, sexual orientation, or disability,” in a declaration of policy governing employment discrimination. Section 16 uses similar language in a related statute enumerating unlawful employment practices. Sections 19 and 22 use similar language in the context of housing discrimination.

. See, e.g., Md.Code (2002, 2006 Supp.), § 3-303 of the Criminal Law Article, entitled "Rape in the first degree,” which states in relevant part:

(a) Prohibited.—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, imminently will be subject to death, suffocation, strangulation, disfigurement, 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 second degree,” states in relevant part:

(a) Prohibited.—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 defective individual, 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 defective individual, a mentally incapacitated individual, or a physically helpless individual; or

(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 makes it clear that the only "person" capable of the enumerated crimes is a male. See Brooks v. State, 24 Md.App. 334, 337-38, 330 A.2d 670, 672, cert. denied, 275 Md. 746 (1975).

. Because vaginal intercourse is required, necessarily "[pjenetration, however slight” is "an essential element of the crime of rape.” Craig v. State, 214 Md. 546, 547, 136 A.2d 243, 244 (1957).

. The appellant was convicted of first degree rape under the following statute:

Rape.—(l)(a) Rape is an act of sexual intercourse, accomplished with, by or between a male and a female person or male and female persons, where such female person 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 where the female person is unmarried, and where the female person is under, and the male person is over the age of eighteen years; and this is rape in the first degree.

People v. Green, 183 Colo. 25, 514 P.2d 769, 770 (1973); Colo.Rev.Stat. § 40-2-25(l)(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)(/), of this section, where the male person is under the age of eighteen years, where such sexual intercourse is had at the solicitation, inducement, importuning or connivance of such female person, or where such female person was at the time of commission of such offense, a free, common, public or clandestine prostitute, and the male person was, prior and up to the time of commission of the offense, of good moral character; and this is rape in the third degree.

Green, 514 P.2d at 770; Colo.Rev.Stat. § 40-2-25(l)(k) (1963).

. "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." Md. Const., Decl. of Rights, art.

. "The Judicial power of this State is vested in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans’ Courts, and 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. Const, art IV, § 1.

. The marriage statutes are silent about fertility and maximum age requirements of the parties. See Md.Code (1957, 2006 Repl.Vol.), § 2-202 of the Family Law Article ("Marriages within certain degrees of relationship void; penalties."); id. at §§ 2-301 to—302 ("Marriages of Certain Minors.”). Even insanity as a bar to capacity appears in the statutes only by implication. Id. at § 7-103 ("Absolute divorce.”).