concurring and dissenting:
I concur in the judgment of the Court insofar as it affirms the trial court’s declaration that the “primary purpose” provision of Art. 81, § 19(e)(4), violates the Equal Rights Amendment to the Maryland Constitution. I dissent from the remainder of the Court’s judgment.
The principal purpose of this opinion is to respond to the positions taken in Parts VI-IX of Chief Judge Murphy’s opinion announcing the judgment of the Court, even though that opinion is not an opinion of the Court. If the 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.
Since 1965, Art. 81, § 19(e) of the Maryland Code has provided for preferential tax assessments to country clubs which agree to preserve open spaces by not selling or developing their lands. By Ch. 870 of the Acts of 1974, the General Assembly added to § 19(e) a broad anti-discrimina*89tion requirement, with an extensive enforcement scheme, as follows:
“In order to qualify under this section, the club shall 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____ If the Attorney General determines that a pattern of discrimination is evident in any club, he shall negotiate a consent agreement with that club to cease such discrimination. If that club breaches or violates the consent agreement or refuses to enter a consent agreement, then the Attorney General shall issue a cease and desist order to that club. If the club breaches or violates the terms of the cease and desist order, the tax exemption, tax credit or beneficial assessment shall be withdrawn, until such time that the Attorney General determines that the club is in compliance with this subsection. Further, any club which fails to qualify as a country club, under paragraph (4) of this subsection because .the club has engaged in discrimination shall not be liable for unpaid taxes provided for in subparagraph (7) of this subsection. However the club shall be assessed and taxed without regard to this subsection. There shall be a right of appeal as provided by sections 255 and 256 of Article 41 of this Code.”
In the bill which became Ch. 870, immediately prior to its final passage, an amendment was adopted which added, after the first two sentences quoted above, the following language (generally referred to as the “primary purpose” provision):
“The provisions of this section with respect to discrimination in sex shall not apply to any club whose facilities are operated with the primary purpose, as determined by the *90Attorney General, to serve or benefit members of a particular sex____” 1
The argument in the present case over whether this primary purpose provision violates the Maryland Equal Rights Amendment (E.R.A.),2 and whether Burning Tree may continue to discriminate against women and still receive the tax preference, has essentially focused upon three issues:
1. Whether there is state action;3
2. If there is state action, whether the primary purpose provision constitutes an abridgement of equality of rights because of sex;
3. If the primary purpose provision does violate the E.R.A., whether that provision is severable from the broad prohibition of discrimination, or the prohibition of discrimination because of sex, contained in the remainder of Ch. 870 of the Acts of 1974.
With regard to these issues, Chief Judge Murphy’s opinion in Part VI appears to acknowledge that the enactment of Ch. 870 of the Acts of 1974 and its administration by state officials constitute “state action.” Nevertheless, the opinion seems to take the position that the primary purpose *91provision of Ch. 870 facially comports with the E.R.A. because “it does not apportion or distribute benefits or burdens unequally among the sexes” and makes the statutory “benefit equally available to all single sex country clubs agreeing to participate in the State’s open space program.” By treating Ch. 870 on its face as “gender neutral” and not violative of the E.R.A., Part VI of Chief Judge Murphy’s opinion seems to embrace a type of “separate but equal” doctrine for purposes of the E.R.A.4
Viewing the Maryland statute as one which simply provides financial aid to country clubs generally if the clubs agree to preserve open spaces, Chief Judge Murphy in Part VII of his opinion states that the governmental involvement in Burning Tree’s discrimination is not sufficient to constitute state action.
Because a majority of the Court rejects Chief Judge Murphy’s views and holds that the primary purpose provision does constitute state action violative of the E.R.A., a different majority decides in Part IX of Judge Murphy’s opinion that the primary purpose provision is not severable from the remainder of Ch. 870 of the Acts of 1974.5
In my opinion, there clearly is state action here. Moreover, I conclude that the E.R.A. prohibits the application of the primary purpose provision to Burning Tree. Finally, I believe that the primary purpose clause is severable from the other provisions in Ch. 870 of the Acts of 1974.
(1)
I totally disagree with the view that Ch. 870 of the Acts of 1974, and its administration by the State are “gen*92der neutral” and do not sufficiently involve the State in discrimination so as to constitute “state action.”
Art. 81, § 19(e), as originally enacted by Ch. 399 of the Acts of 1965, was, as Chief Judge Murphy’s opinion describes in Part VI, concerned with affording a tax benefit to private country clubs which agree to preserve open spaces in the public interest, was designed to benefit Maryland citizens of both sexes by preserving open spaces, and facially did not relate to gender, race, or any other suspect classification. The constitutional attack in this case, however, is not upon Ch. 399 of the Acts of 1965.
Ch. 870 of the Acts of 1974, on the other hand, is a statute relating entirely to discrimination on the basis of “race, color, creed, sex, or national origin.” (Emphasis added). This is the sole subject matter of the 1974 enactment. The primary purpose provision of Ch. 870 was concerned only with sex discrimination. Ch. 870 flatly prohibits a club from discriminating on the basis of race, color, creed or national origin and continuing to receive the tax benefits of § 19(e). It also prohibits sex discrimination except when the sex discrimination is essentially total. Thus, the statute draws an express distinction between race, color, creed and national origin discriminations on the one hand, and sex discrimination on the other hand. It also expressly distinguishes between two types of sex discrimination, allowing sex discrimination when it is the “primary purpose” of the club and disallowing it in other situations. The provisions in Ch. 870 relating to administration by the State likewise concern only discrimination.
Ch. 870 of the Acts of 1974, therefore, is not simply the “neutral” grant-in-aid statute described in Parts VI and VII of Chief Judge Murphy’s opinion. Rather, it is a statute specifically relating to discrimination and, with regard to sex, sanctioned and prohibited sex discrimination, with a statutorily created enforcement machinery. Consequently, Ch. 870 on its face expressly draws classifications which implicate the E.R.A. Moreover, both the statute and the *93administrative machinery created by it clearly involve the State in the discrimination by Burning Tree.
In finding an absence of state action, Chief Judge Murphy relies upon Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), and upon three Supreme Court cases holding that there was no state action for purposes of the Fourteenth Amendment. They are Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). None of these cases support the Chief Judge’s position.
The language from Lugar seized upon by Chief Judge Murphy is that action by a private party pursuant to statute, “without something more,” is “not sufficient to justify a characterization of that party as a ‘state actor.’ ” 457 U.S. at 939, 102 S.Ct. at 2754. In the instant case there is a great deal more. The statute itself draws classifications based on sex, expressly enabling a private party to continue discriminating while receiving a substantial state subsidy. This is done pursuant to a statutorily created state administrative proceeding, in which it is determined that the private party is engaged in statutorily sanctioned sex discrimination. These factors also distinguish the present case from Blum v. Yaretsky, Rendell-Baker v. Kohn, and Moose Lodge No. 107 v. Irvis.
In Blum, the challenged action was not sanctioned by a state statute or regulation, or in accordance with a classification set forth by statute, or done as a condition for receiving state aid, but was solely based on medical judgments of private parties. Similarly, in Rendell-Baker the challenged action had no relationship to the provisions of the state aid statute. The Court in Moose Lodge held that the mere regulation of the sale of alcoholic beverages in private establishments did not involve the state in the racial discrimination by those establishments. In that case, unlike the case at bar, the statutory and regulatory provisions *94which were upheld made no classification relevant to the discrimination.
A case much closer in point is Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir.1963); cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). That case involved a provision of the Hill-Burton Act, 42 U.S.C. § 291e(f), which is quite analogous to Ch. 870 of the Acts of 1974. The Hill-Burton Act authorized the payment of federal funds for private hospital construction and the promotion of hospital services. Section 291e(f) of that Act, like Maryland’s Ch. 870 of the Acts of 1974, contained a clause broadly prohibiting discrimination on account of “race, creed, or color” by the private recipients of the governmental aid; otherwise the aid would not be given. Section 291e(f), again like Ch. 870, went on to provide an exception to the prohibition “in cases where separate hospital. facilities are provided for separate population groups” and the services are “of like quality for each such group.” Also somewhat like Ch. 870, the statute provided for administrative enforcement machinery involving both federal and state governments. See 323 F.2d at 961 n. 1 and n. 2, 963-965. In overturning the federal district court’s holding of no governmental action, and in striking down the “separate but equal” provision of the Hill-Burton Act, the Fourth Circuit, in an opinion by Chief Judge Simon E. Sobeloff, pointed to the affirmative sanctioning of the challenged discrimination by federal and state governments {id. at 968) and the “overt state and federal approval ... [of] otherwise purely private discrimination” (id. at 969). The court stated (id. at 968):
“It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with ‘state action.’ ”
The Simkins case directly supports the position that state action is present in the case at bar. See also, Evans v. Newton, 382 U.S. 296, 302, 305-306, 86 S.Ct. 486, 490, 491-492, 15 L.Ed.2d 373, 379 (1966) (concurring opinion of Justice White).
*95(2)
The primary purpose provision on its face, and its administration by state officials, cannot be reconciled with the constitutional principles set forth in this Court’s prior opinions.
In the present case, three judges seem to take the position that the E.R.A. is implicated only when a statute, common law provision or other government action imposes a burden on one sex but not the other, or confers a benefit upon one sex but not the other. Moreover, the 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.
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.
Thus, in Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 506-507, 312 A.2d 216 (1973), this Court took the position that, under the E.R.A., classifications based on sex were “ ‘suspect classifications’ ” subject to “ ‘stricter scrutiny.’ ” Later, in Rand v. Rand, 280 Md. 508, 512, 874 A.2d 900 (1977), Chief Judge Murphy for the Court stated that the language of the E.R.A. is “unambiguous” and that
“[t]his language mandating equality of rights can only mean that sex is not a factor.” (Emphasis added).”
The Court in Rand then turned to the opinion of the Supreme Court of Washington in Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975), saying of that case (280 Md. at 512, 374 A.2d 900):
“The court there said that by ratifying ‘the broad, sweeping, mandatory language’ of the amendment, the citizens ‘intended to do more than repeat what was already con*96tained 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.’ 85 Wash.2d at 871, 540 P.2d at 889. The court, therefore, did not consider whether the sex-based classification at issue — concerning eligibility to participate in high school sports — satisfied the rational relationship or strict scrutiny test. It found that the ‘overriding compelling state interest’ had been determined by the people of the state to be that ‘Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.’ ”
The Rand opinion went on to discuss E.R.A. cases in other jurisdictions, concluding (280 Md. at 515-516, 374 A.2d 900):
“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 state was intended to, and did, drastically alter traditional views of the validity of sex-based classifications." (Emphasis added).
The principles enunciated in Rand have been reiterated in subsequent opinions of this Court. See, e.g., Condore v. Prince George’s Co., 289 Md. 516, 524, 425 A.2d 1011 (1981) (the E.R.A. “ ‘can only mean that sex is not a factor’ ”); Kline v. Ansell, 287 Md. 585, 591-592, 414 A.2d 929 (1980).
Cases under E.R.A. provisions in other state constitutions are generally to the same effect, holding that classifications based on sex are suspect, that they are subject to at least strict scrutiny, and that the burden is upon those attempting to justify such classifications to demonstrate a compelling state interest. For example, the Supreme Judicial Court of Massachusetts stated in an opinion to that State’s Legislature (Opinion of the Justices, 374 Mass. 836, 839-840, 371 N.E.2d 426 (1977)):
*97“We believe that the application of the strict scrutiny— compelling State interest test is required in assessing any governmental classification based solely on sex____ 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 the people in adopting it.”
The Massachusetts court also pointed out (374 Mass, at 838-839, 371 N.E.2d 426) that cases in some jurisdictions, namely Washington6 and Pennsylvania,7 could be read as imposing a stricter standard on sex classifications than the “strict scrutiny” test, and, in this connection, the court cited the discussion in this Court’s Rand opinion. In a later case, the Massachusetts Court reiterated (Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., 378 Mass. 342, 354, 393 N.E.2d 284 (1979)):
“We have held under ERA that classifications on the basis of sex are subject to a degree of constitutional scrutiny ‘at least as strict as the scrutiny required by the Fourteenth Amendment for racial classifications’ [Commonwealth v. King, 374 Mass. 5, 21 [372 N.E.2d 196] [1977]), and noted that such classifications are not permissible unless they meet two conditions: they must ‘further a demonstrably compelling interest and limit their impact as narrowly as possible consistent with their legitimate purpose.’ Id. at 28 [372 N.E.2d 196].”
The same view was taken by the Supreme Court of Illinois in People v. Ellis, 57 Ill.2d 127, 132-133, 311 N.E.2d 98 (1974). There, after reviewing United States Supreme Court equal protection cases dealing with sex classifications, the Illinois Court stated:
“In contrast to the Federal Constitution, which, thus far, does not contain the Equal Rights Amendment, the Con*98stitution of 1970 contains section 18 of article I, and in view of its explicit language, and the debates, we find inescapable the conclusion that it was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires us to hold that a classification based on sex is a ‘suspect classification’ which, to be held valid, must withstand ‘strict judicial scrutiny.’ ”
See also, e.g., People v. Barger, 191 Colo. 152, 155, 550 P.2d 1281 (1976) (“legislative classifications predicated on sexual status must receive the closest judicial scrutiny”).
Consequently, 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. In this respect, the E.R.A. makes sex classifications subject to at least the same scrutiny as racial classifications. Of course, because of the inherent differences between the sexes, some sex-based classifications may be justified after such scrutiny, whereas comparable race-based classifications could not be sustained. As the United States Supreme Court stated in Goss v. Board of Education, 373 U.S. 683, 687, 83 S.Ct. 1405, 1408, 10 L.Ed.2d 632 (1963), “racial classifications are ‘obviously irrelevant and invidious.’ ” Thus, separate restroom or locker room facilities for blacks and whites cannot be tolerated, but such separate facilities for men and women can be justified by the State.8
Turning to Ch. 870 of the Acts of 1974, it is clear that the General Assembly has expressly made classifications using *99sex as a factor. Preliminarily, the statute classifies types of discrimination, prohibiting without exception discrimination based on race, color, creed or national origin but permitting some forms of sex discrimination.9 Thus, under the statute, a country club operated for the primary purpose of serving persons of a particular national origin is ineligible for the state subsidy, whereas a country club excluding women is eligible. This is particularly anomalous, considering that the only one of the listed discriminations expressly banned by the Maryland Constitution is sex discrimination.10 The principal classification implicating the E.R.A. arises from the language authorizing clubs, totally segregated on the basis of sex, to maintain their discriminatory practices and, at the same time, to continue receiving a significant state benefit. On the other hand, sexually integrated country clubs are generally precluded from discriminating on the basis of sex. It is also noteworthy that the statute, by providing for contracts requiring that lands remain as open spaces, authorizes the acquisition of negative easements by the State. Consequently, under the statute and its implementation, the State is permitting land in which the State has a property right to be utilized by a segregated organization. Cf., Burton v. Wilmington Pkg. Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Statom v. Bd. of Comm., 233 Md. 57, 195 A.2d 41 (1963).
Ch. 870 of the Acts of 1974, therefore, on its face draws classifications based on gender. In light of this, the statute is subject to strict scrutiny, and the burden of persuasion falls upon those seeking to justify the classifications. Nei*100ther the State, nor a state agency, nor a state official has in this case defended the statute. Burning Tree has offered nothing in justification of the classifications made; instead, the thrust of its argument in the trial court and in this Court has been that the E.R.A. is not implicated or, in the alternative, that the primary purpose provision is not sever-able from the remainder of Ch. 870.11 Moreover, unlike separate facilities obviously justified by the inherent differences between the sexes, this is not a situation where the Court can judicially notice justification for the sex-based classifications. Therefore, I can only conclude that the primary purpose provision of Ch. 870, on its face, violates the E.R.A.
(3)
Even when a statute is not facially discriminatory, or does not expressly draw or recognize a suspect classification, an inquiry into the actual facts, to determine the existence of a discriminatory purpose and impact, is appropriate. See, e.g., Hunter v. Underwood, — U.S.-, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265-268, 97 S.Ct. 555, 563-565, 50 L.Ed.2d 450 (1977); Griffin v. School Board, 377 U.S. 218, 231-232, 84 S.Ct. 1226, 1233-1234, 12 L.Ed.2d 256 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5th Cir.1971).
In 1974, and at all times since then, Burning Tree was the only entity to which the primary purpose provision was applicable. 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. This has also been the sole effect of the provision since 1974.
Chief Judge Murphy responds by stating that the statute “did not cause there to be no all-female country clubs____” *101This, however, does not change the fact that the purpose and effect of the primary purpose provision was to permit one country club to maintain its discriminatory policy while continuing to receive a substantial state benefit. The Chief Judge’s opinion also relies upon Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). But in that case, the purpose of the challenged law was not to sanction the continuation of discrimination against women, and the sole beneficiaries were not men. Finally, Judge Murphy cites Reyes v. Prince George’s County, 281 Md. 279, 380 A.2d 12 (1977), a case involving the special law provision of the Maryland Constitution.12 That constitutional provision, however, had an entirely different history and purpose than the E.R.A.; it was not specifically designed to prohibit governmental action discriminating between individuals on the basis of generally irrelevant personal characteristics. As recognized in other E.R.A. cases, the constitutional provisions most analogous to the E.R.A. are those guaranteeing equal protection of the laws.
As previously indicated, the opinion announcing the Court’s judgment has repeatedly confused the purpose and *102effect of the 1965 statute with the purpose and effect of the 1974 primary purpose provision. For example, Chief Judge Murphy’s opinion speaks of the burden of the statute being borne by all Maryland citizens. The opinion states that Marylanders of both sexes share the benefits of preserving open spaces, that the “purpose of the statute ... [is] to preserve open spaces,” that the State is “not significantly involved in Burning Tree’s membership policy,” that “[a]t worst, the State ... is indifferent to Burning Tree’s policy of excluding women . and that the “sex-neutral [Maryland] statute ... [is not] a nefarious state sponsored scheme to invidiously discriminate against women solely on account of their sex.” All of this might or might not be true with regard to § 19(e) as originally enacted in 1965. The plaintiffs, however, are not challenging the original 1965 statute. They are challenging the 1974 primary purpose provision. And, to reiterate, the only purpose and effect of the 1974 primary purpose provision was to allow Burning Tree to continue discriminating against women and still receive a large state subsidy.
If 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, supra; Arlington Heights v. Metropolitan Housing Corp., supra; Gomillion v. Lightfoot, supra, and similar cases. Consequently, the provision is suspect under the E.R.A. and, absent strong justification by the State, violates the state constitutional prohibition against sex discrimination.13
(4)
Finally, I believe that the primary purpose provision is severable from the remainder of Ch. 870 of the Acts of 1974.
*103The applicable principles regarding severability were recently summarized in Davis v. State, 294 Md. 370, 383-384, 451 A.2d 107 (1982), as follows:
“The primary focus in questions of severability is legislative intent. The intent to be ascertained, however, is not actual legislative intent, as the Legislature obviously intended to enact the statute as written in its entirety. ‘Rather, when severability is the issue, the courts must look to what would have been the intent of the legislative body, if it had known that the statute could be only partially effective.’ Cities Service Co. v. Governor, 290 Md. 553, 575, 431 A.2d 663 (1981), quoting from O.C. Taxpayers v. Ocean City, 280 Md. 585, 600, 375 A.2d 541 (1977). See Anne Arundel County v. Moushabek, 269 Md. 419, 428, 306 A.2d 517 (1973); Sanza v. Md. Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1967).
“In determining this legislative intent, courts apply certain established principles of construction. ‘Perhaps the most important of these principles is the presumption even in the absence of an express clause or declaration, that a legislative body generally intends its enactments to be severed if possible.’ O.C. Taxpayers v. Ocean City, supra, 280 Md. at 600 [375 A.2d 541]. ‘It ... becomes the duty of the court whenever possible to separate the valid from the invalid provisions.’ Davidson v. Miller, 276 Md. 54, 83, 344 A.2d 422 (1975). The presumption in favor of severability, and the duty to sever if at all possible, are reinforced if a severability clause is present. O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601 [375 A.2d 541], and cases there cited. Moreover, since 1973, the Legislature has in effect provided that all statutes have a severability clause. Ch. 241 of the Acts of 1973. [Code (1957, 1981 Repl.Vol.), Art. 1, § 23].
“Of virtually equal importance is the rule that, when the dominant purpose of a statute may largely be carried out notwithstanding the invalid provision, courts will ordinarily sever the statute and enforce the valid portion. Cities Service Co. v. Governor, supra, 290 Md. at 576 *104[431 A.2d 663]; O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601 [375 A.2d 541], and cases cited therein.”
These principles certainly indicate that the primary purpose clause is severable. In reaching a contrary conclusion, the majority (as to this issue) fails to give any effect to the strong presumption in favor of severability, reinforced by Art. 1, § 23.
Moreover, I believe that the dominant purpose of Ch. 870 was the prohibition of various forms of discrimination, including sex discrimination. The dominant purpose was not the preservation of a subsidy for a single discriminatory country club.
In contending that the primary purpose provision is not severable, Burning Tree (as well as a majority of the Court’s panel on this issue) relies upon the following principle of construction, as set forth in State v. Schuller, 280 Md. 305, 319, 372 A.2d 1076 (1977).
“A long established principle of statutory construction in determining severability questions, is that where the Legislature enacts a prohibition with an excepted class, and a court finds that the classification is constitutionally infirm, the court will ordinarily not presume that the Legislature would have enacted the prohibition without the exception, thereby extending the prohibition to a class of persons whom the Legislature clearly intended should not be reached.”
This principle, however, has generally been applied where severance of the exception would impose a sanction or “substantial hardship on the otherwise excepted class.” O.C. Taxpayers v. Ocean City, 280 Md. 585, 601, 375 A.2d 541 (1977), and cases there cited. As Burning Tree could retain the state subsidy simply by abandoning its discriminatory practices, severance of the exception imposes no substantial hardship on Burning Tree. Furthermore, the cases applying the Schuller principle have involved excepted classes containing a significant number of entities. It is *105doubtful that the principle has much force when the excepted class consists of a single entity. Finally, the Schuller principle is not an inflexible rule, and courts have often severed invalid exceptions. O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601, 375 A.2d 541, and cases there cited.
Burning Tree also relies upon the fact that a bill similar to Ch. 870, but without the primary purpose provision, was not enacted at the 1973 session of the General Assembly. This was House Bill 790 of the 1973 session. An examination of the legislative history, however, shows that the failure of House Bill 790, and the enactment of Ch. 870, cannot be attributed to the absence or presence of the primary purpose provision. House Bill 790 was not reported favorably by the House Ways and Means Committee until two weeks before the end of the 1973 session, and did not pass the House until the last week of the session. 1973 H. Journal 1948, 2262. The bill was not approved by the Senate Finance Committee until almost the end of the session, 1973 S. Journal 2810, and died in the last minute legislative logjam. No amendment to House Bill 790 containing a provision like the primary purpose clause was proposed from the floor. Consequently, the failure of House Bill 790 does not support Burning Tree’s argument that the addition of the primary purpose clause to what became Ch. 870 was necessary for its passage.
Settled principles of statutory construction, therefore, should require a holding that the primary purpose clause is severable from the rest of Ch. 870.
For the above reasons, I would affirm the entire judgment of the circuit court.14
Judges COLE and BLOOM have authorized me to state that they concur with the views expressed in this opinion.
. Following the quoted language, the amendment also added the words "nor to the clubs which exclude certain sexes only on certain days and at certain times.” This clause, referred to in Judge Murphy’s opinion as the “periodic discrimination provision," was not specifically dealt with in the trial court’s judgment. Consequently, I shall express no view concerning the clause.
. Article 46 of the Maryland Declaration of Rights.
. The parties, the other opinions in this case, and decisions under other state constitutional E.R.A. provisions, equate the "under the law" provision in the E.R.A. with the "state action” doctrine under the Fourteenth Amendment. I agree that the two concepts are essentially the same. Cf., Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-2770, 73 L.Ed.2d 418 (1982); United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966) (stating that the "under color of law" language in 42 U.S.C. § 1983 means "the same thing as the ‘state action' required under the Fourteenth Amendment.”).
. The opinion tempers this slightly in Part VIII, saying that "[conceivably a law requiring separation of the sexes might be subject to challenge on the ground [of] unconstitutional sex discrimination,” but that the Maryland statute is valid because it "simply recognizes” that single sex clubs may participate in the state program. (Emphasis added).
. In effect, the Court’s entire mandate in this case reflects the conclusions of only one member, Judge Rodowsky.
. Darrin v. Gould, 85 Wash.2d 859, 871, 540 P.2d 882 (1975).
. Commonwealth v. Butler, 458 Pa. 289, 296, 328 A.2d 851 (1974).
. In this connection, the question of whether single sex school facilities or athletic teams can be justified by the state, under equal rights amendments, has in recent years been the subject of much litigation and differing views. Compare, e.g., Petrie v. Illinois High School Ass’n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855 (1979); Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., 378 Mass. 342, 393 N.E.2d 284 (1979); Opinion of the Justices, 374 Mass. 836, 371 N.E.2d 426 (1977); Newberg v. Board, of Public Ed., 26 Pa.D. & C.3d 682, 9 Phila. 556 (Ct. of Common Pleas 1983); Comm. By Israel *99Packel, A.G. v. P.I.A.A., 18 Pa. Commw. 45, 334 A.2d 839 (1975); Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975).
. Cf., Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969).
. Of course, the general due process and equal protection principles of Article 24 of the Declaration of Rights are applicable to the other forms of discrimination.
. In the trial court, the case was decided on cross-motions for summary judgment. Nothing accompanying the motions related to any possible justification for the classifications drawn by the statute.
. Article III, § 33, of the Maryland Constitution provides as follows: “Section 33. Local and special laws.
The General Assembly shall not pass local, or special Laws, in any of the following enumerated cases, viz.,: For extending the time for the collection of taxes; granting divorces; changing the name of any person; providing for the sale of real estate, belonging to minors, or other persons laboring under legal disabilities, by executors, administrators, guardians or trustees; giving effect to informal, or invalid deeds or wills; refunding money paid into the State Treasury, or releasing persons from their debts, or obligations to the State, unless recommended by the Governor, or officers of the Treasury Department. And the General Assembly shall pass no special Law, for any case, for which provision has been made, by an existing General Law. The General Assembly, at its first Session after the adoption of this Constitution, shall pass General Laws, providing for the cases enumerated in this section, which are not already adequately provided for, and for all other cases, where a General Law can be made applicable.
. Because the issue was neither raised nor argued by the parties, this opinion does not address whether the tax exemption granted Burning Tree under the 1965 statute amounts to state action prohibited by the E.R.A.
. Burning Tree makes certain arguments having no relation to the E.R.A. In my opinion, they are totally lacking in merit and call for no discussion in this opinion.