dissenting.
I.
Burning Tree contends in this case, contrary to its original position in Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985) (Burning Tree I) that the so-called “periodic discrimination” provision violates the E.R.A. It does so in light of the majority view of Burning Tree I that the “periodic discrimination” provision violated the E.R.A. Of course, Burning Tree’s position in this respect is taken, not from conviction that Burning Tree I was correct, but rather to lay the underpinning for its argument that the “periodic discrimination” provision cannot be severed from the remainder of Chapter 334 and, hence, the entire act is unconstitutional.
The E.R.A. declares that “[EJquality of rights under the law shall not be abridged or denied because of sex.” I agree with the position taken by Chief Judge Murphy in announcing the judgment of the Court in Burning Tree I, in which Judges Smith and Orth concurred. There, he recognized that the E.R.A. was prompted by the long history of denial of equal rights for women. The E.R.A., he said, “flatly prohibits gender-based classifications, either under legislative enactments, governmental policies, or by application of common law rules, in the allocation of benefits, burdens, rights and responsibilities as between men and women.” 305 Md. at 64, 501 A.2d 817. He pointed out that our cases, and those of other jurisdictions having *301similar E.R.A. provisions in their constitutions, clearly indicate that they prohibit unequal treatment imposed by law as between the sexes. Id. at 70, 501 A.2d 817. He noted that these cases shared a common thread — “they generally invalidate governmental action which imposes a burden on one sex but not the other, or grants a benefit to one but not the other.” Id. The equality between the sexes mandated by the E.R.A., he said, is of “rights” of individuals “under the law,” as to which the E.R.A. absolutely forbids their determination solely on the basis of one’s sex. Id. In this formulation there must be a denial or abridgement of equal rights under the law as between men and women, absent which the E.R.A. has no application.
In enacting Chapter 334, and including the “periodic discrimination” provision as an exception to the general proscription against sex discrimination in the granting by country clubs of “membership and guest privileges,” the legislature manifestly determined that it was not inconsistent with the E.R.A. or with the general prohibition against sex discrimination, to permit, on an equal basis, the exclusion of one sex, or the other from the club’s activities or facilities “on specific days or at specific times.” The obvious purpose of this provision — one of long duration in the operation of country clubs which antedates by many years the enactment of the E.R.A. — is to permit country clubs participating in the open space program to hold “men’s or women’s golf or tennis tournaments, or to ... [permit] men’s or women’s days or times on the course or courts, or to otherwise ... [permit] the continuance of time allocations that traditionally had been treated as reasonable and nondiscriminatory even though based on sex classification.” Plainly the exception does not smack of a nefarious state-sponsored scheme to invidiously discriminate against men or women solely on account of their sex; it simply does not apportion or distribute benefits or burdens unequally among the sexes within the contemplation of the E.R.A.
Of course, I recognize that a statutory provision, although couched in gender neutral terms, may be applied in *302an invidiously discriminatory manner and thus constitute a violation of the E.R.A. While I agree with the Court that the provision could have been more narrowly and artfully drawn, it is not facially at odds with the E.R.A. In my view, neither the legislature in proposing the E.R.A. or the people in adopting the amendment ever dreamed that it would be taken to such extreme lengths as to, in effect, virtually mandate a form of “togetherness” desired by neither sex. Such an interpretation, I think may well threaten to undermine the continuing acceptance of the E.R.A. itself, a dreadful result indeed.
II.
If the “periodic discrimination” provision is unconstitutional, I do not agree that it is severable from the remainder of the statute.
The majority recites, and then relies upon, the principle that “a legislative body generally intends its enactments to be severed if possible.” Majority opinion at [297]. That is a valid principle, and it is backed up by Article 1, § 23, Maryland Code (1957, 1987 Repl.Vol.). What the majority here apparently overlooks, but what a different majority did not overlook in Burning Tree I, is that the principle does not apply when the invalid portion of a statute is an exception to a prohibition.
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. Burning Tree I, 305 Md. at 82 [501 A.2d 817], quoting from State v. Schuller, 280 Md. 305, 319, 372 A.2d 1076 (1977).
To the same effect, see 2 Sutherland Statutory Construction § 44.13 (4th ed.), stating:
*303When an exception, exemption, proviso, or any clause which limits the scope of an act’s applicability is found to be invalid, the entire act may be void on the theory that by striking out the invalid exception the scope of the act has been widened and therefore cannot properly represent the legislative intent. To extend the scope of an act’s operation by invalidating a provision of limitation while allowing the remainder to continue in effect invites criticism on the ground that it amounts to judicial legislation. (footnotes omitted).
During the 1988 session of the General Assembly, after this Court had made clear that this was the law followed in Maryland, House Bill 844 was introduced to amend Art. 1, § 23 of the Maryland Code by adding the following language:
The presumption of severability of statutes under this section applies even if the invalid portion of a statute is an exception to a prohibition.
The bill did not pass. The law remains as it was. The first part of ch. 334 constituted a general prohibition of the practice of discrimination. The second part may be considered an exception to the general prohibition. There is, therefore, no presumption of severability in this case.
The presumption, even when applicable, serves only as an aid in determining probable legislative intent. And, as this Court pointed out in O. C. Taxpayers v. Ocean City, 280 Md. 585, 375 A.2d 541 (1977), we look not to the actual intent of the legislature in passing the statute, but rather to what would have been the intent of the legislative body if it had known that the statute could be only partially effective. In the context of the case before us, the question is whether the legislature would have imposed the absolute ban of the first section of the statute had it known that the exception in the second section would be declared invalid. I cannot say with any confidence that the legislature would have done so, and therefore I decline to legislate by the scalpel of severance.
*304I am struck by the fact that when the legislature considered ch. 334 in 1986, it had just been through this entire exercise with the same statute. By ch. 870 of the Acts of 1974, the legislature had imposed upon participating country clubs a general prohibition against discrimination, immediately followed by exceptions for clubs primarily intending to benefit a particular sex, and clubs which excluded certain sexes only on certain days and at certain times. On December 23,1985, just prior to the opening of the 1986 session of the General Assembly, this Court held the primary purpose exception was unconstitutional and, specifically stating that the Court would not indulge a presumption of severability when the invalidated statute was an exception to a general prohibition, refused to sever. The Court said that “severing the primary purpose provision would make the prohibition against sex discrimination operate as to single-sex country clubs and thereby enlarge [the] prohibition beyond its reach as enacted.” Burning Tree I, 305 Md. at 82, 501 A.2d 817. Six weeks later, the bill we now consider was introduced. It is inconceivable to me that the legislature could have misunderstood the clear language of Burning Tree I when it set about “fine tuning” the exception in an effort to make it constitutional. The legislature did not make a radical change in an effort to escape this Court’s decision of non-severability. Quite the contrary, it employed the same approach it had previously taken, simply deleting the primary purpose clause from the exception. If ever a legislative body had a right to believe that if its second attempt at defining an exception also proved lacking, it simply would be sent back to the drafting board, and not suffer the enactment of a prohibition far more sweeping than it had approved, it was the General Assembly of 1986.
The exception in Chapter 334 was intended, I believe, to be an integral part of the bill. Its genesis does not date to the drafting of the 1986 Act, but to a Senate amendment to the 1974 Act. The legislators apparently did not wish to pass a bill that would preclude country clubs from holding men’s or women’s golf or tennis tournaments, or from *305establishing men’s or women’s days or times on the course or courts, or to otherwise proscribe the continuation of time allocations that traditionally had been treated as reasonable and non-discriminatory even though based on sex classification. When the 1974 Act was declared unconstitutional, and Senate Bill 483 was introduced, the exception was included in the original draft. Constituents then reminded their representatives of the need for the exception.1 The Senate Budget and Taxation Committee Floor Report assured the membership that passage of the bill would not affect the ability of the clubs to “have such activities as men’s/women’s days or tournaments.” Every member of the 1986 General Assembly voting for Senate Bill 483 had the right to assume that the bill would either survive as a whole or fail as a whole, and to be confident that we would not rewrite their legislation into the unlimited prohibition they had twice attempted to avoid.
The method by which the legislature structured the exception is also significant. It did not say, as the majority suggests by the use of the term “periodic discrimination,” that discrimination was generally proscribed but that certain discrimination would be permitted. Instead, the legislature proscribed discrimination based on sex, and then defined discrimination so as not to include exclusion of either sex on specific days or at specific times. The prohibition of “discrimination based on sex” in subsection (a) is no broader than the specific definition of that term contained in subsection (b). I can think of no more obvious way to change the intent of the legislature than to judicially excise the limiting definition while leaving the balance of the statute intact.
Whether the legislature would have enacted Senate Bill 483 with no limiting definition of what it meant by sexual *306discrimination is entirely conjectural. The system of property tax assessment agreements that this legislation would affect is obviously perceived as beneficial to the State and its political subdivisions. In addition to the preservation of open spaces, there are obvious economic advantages that I believe the legislature could find significantly outweigh the tax concessions made. The history of this legislation indicates that the General Assembly did not wish to impose unnecessary and unwanted restrictions on country clubs, or to unnecessarily disturb an arrangement that is of benefit to the State. My best judgment is that if made aware the exception was overly broad, the legislature would have attempted to spell out an exception that would largely comport with existing practices of the country clubs and at the same time satisfy this Court's legitimate concern with overbreadth. I cannot say with any measure of confidence that the legislature would have passed this bill without the definition subsection that spelled out its true intent, and I therefore respectfully dissent from the holding that the statute is severable.
MURPHY, C.J., joins in this opinion.
. See, e.g., the letters of Doctor Luther Gray, past president of Congressional Country Club, and Mr. Jerome Powell on behalf of the Chevy Chase Club, contained in the record of the legislative history of Senate Bill 483, Department of Legislative Reference.