Burning Tree Club, Inc. v. Bainum

501 A.2d 817, 305 Md. 53, 1985 Md. LEXIS 895

Opinions

MURPHY, C.J.,

announcing the judgment of the Court, in which SMITH and ORTH, JJ., join.

Article 46 of the Maryland Declaration of Rights, commonly known as the Equal Rights Amendment (E.R.A.), was adopted by the people of Maryland in November of 1972; it provides:

“Equality of rights under the law shall not be abridged or denied because of sex.”

The principal question in this case is whether Maryland Code (1957, 1980 Repl.Vol.), Article 81, § 19(e)(4), which conditionally affords preferential tax assessments to private country clubs operated with the primary purpose of serving or benefiting members of a particular sex, violates the E.R.A.

I

The General Assembly enacted § 19(e) of Art. 81 by ch. 399 of the Acts of 1965. A preamble to the statute declared that it was the legislative intention

“that the assessment of lands used for country clubs shall be maintained at levels compatible with the continued use of such property for country clubs and shall not be adversely affected by neighboring uses of a more intensive and different nature.”

The preamble further declared that it was

“in the general public interest that such uses should be encouraged in order to provide open spaces and provide recreational facilities and to prevent the forced conversion of such country clubs to more intensive or different uses as a result of economic pressures caused by the assessment of country club land and improvements at a rate or level incompatible with the practical use of such property for country clubs.”

Consistent with the declaration of legislative policy, § 19(e) authorized the State Department of Assessments and Taxation (the Department) to enter into agreements with private country clubs whereby in exchange for a ten-year commit ment to preserve its open spaces by not selling or developing its land, a portion of the club’s real property taxes would be deferred. Under such agreements, property taxes were imposed based on an assessment of the property as undeveloped land, rather than on a “best use” assessment as if the land were developed to the same density as the surrounding area. The statute permits extensions of preferential tax agreements for periods of not less than five years.

The 1965 legislation had not contained any antidiscrimination provisions. At the 1974 session of the General Assembly, House Bill 620 proposed broad antidiscrimination provisions for insertion in subsection (4) of § 19(e). H.B. 620 was amended in the Senate and the House of Delegates concurred in that amendment. Set forth below is the relevant portion of § 19(e)(4)(i) immediately following the enactment of Ch. 870. Language originally enacted in 1965 appears in regular type. The language of H.B. 620 as introduced appears in italics. The language of the amendment to the House version (the Senate Amendment) appears with single and double underscoring.

[T]he fact that the club facilities may be used by persons or groups other than members or their guests does not disqualify a club under this subsection. 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. 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 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. 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 (Title “Governor-Executive and Administrative Departments, ” Subtitle “Administrative Procedure Act").

The portion of the Senate Amendment set forth with single underlining is the “primary purpose” qualification. It is central to a determination of the issues presented in this case.

II

Burning Tree Club, located in Bethesda, Maryland, has been a private men’s golf club since its foundation in 1922. Its bylaws state that the club is organized specifically to promote and encourage the game of golf. Accordingly, the club consists only of an eighteen-hole golf course, a clubhouse and a pro shop. Membership is limited to 250 residents and 250 nonresidents, honorary, clerical and senior members. A person cannot apply for membership but must be proposed by one member and seconded by another. The decisive criteria are the proposed member’s dedication to golf and compatibility with the club’s members. However, women are not allowed to become members or to enjoy guest privileges. Furthermore, women are not allowed to enter or use the clubhouse. It is only by appointment on specific days in December that a member’s wife may obtain limited access to the pro shop to purchase Christmas gifts for her husband.

Burning Tree occupies approximately 225 acres, 200 of which is open space. When founded in 1922, Burning Tree was located in a rural environment. Since that time, the area surrounding the club has become highly developed. In 1965, Burning Tree entered into an agreement with the State, pursuant to § 19(e), whereby it agreed to preserve its open spaces for ten years in return for a property tax deferral. The agreement was extended for ten years in 1975.

In 1978, pursuant to authority vested in him under § 19(e)(4), the Attorney General determined that Burning Tree did not discriminate on the basis of race, color, creed, or national origin, and that the sex discrimination prohibition was not applicable because the club was operated with the primary purpose of serving members of one sex. In 1981, Burning Tree executed a 50-year agreement with the State to preserve its open space in exchange for a tax deferral. Although Burning Tree is only one of many country clubs maintaining open-space agreements with the State, it is the only club that qualifies for the tax preference because of a primary purpose to serve members of one sex. The value of Burning Tree’s tax deferral is exemplified by the fact that in 1981 alone the club realized a tax savings of approximately $130,000 as a result of its preferential tax assessment.

Ill

By bill of complaint filed in the Circuit Court for Montgomery County on August 12, 1983, Stewart Bainum, as taxpayer, and Barbara Renschler, as taxpayer and as a woman seeking membership in Burning Tree, sued the State, the Department and Burning Tree; they sought, first, a declaration that the primary purpose provision of § 19(e)(4) violated the E.R.A. and Articles 15¹ and 24² of the Maryland Declaration of Rights; second, an order enjoining preferential tax treatment for Burning Tree; and third, an order that Burning Tree entertain women’s membership applications.

Acting on cross-motions for summary judgment, the circuit court (Raker, J.) declared the primary purpose provision of § 19(e)(4) to be violative of the E.R.A. and thus null and void. The court enjoined the State and the Department from granting preferential tax benefits to Burning Tree as long as the club discriminated on the basis of sex in granting membership or guest privileges. In so holding, the court noted that the E.R.A. was limited to sex discrimination imposed “under the law” and therefore applied only to state action or to private conduct that could fairly be characterized as involving state action. The court concluded that the statutory scheme contained in § 19(e) was the product of state action and thus subject to constitutional review and restraint. The court observed that the primary purpose provision of § 19(e)(4) specifically authorized the tax preference for country clubs that discriminatorily operated their facilities for the benefit of only one sex. It said that the statutory scheme “provides encouragement, ap proval and financial aid to private [sex] discrimination” and that such discrimination was proscribed by the E.R.A. The court also found that the statute involved the Attorney General in Burning Tree’s sex discrimination policy since, under § 19(e)(4), he was required to “enforce” the club’s policy of excluding women from membership. While noting that § 19(e)(4) does not facially discriminate against either sex, or impose greater burdens, or provide greater benefits to a particular sex, the court held that the statute violated the E.R.A. because, notwithstanding its facial neutrality, it had a discriminatory effect. It said that the primary purpose provision was analogous to other facially neutral statutes which, when challenged on Fourteenth Amendment grounds, were invalidated by the Supreme Court because they effectively sanctioned racial discrimination by private organizations. The court held that the primary purpose provision of the statute made distinctions based on sex, but not upon race, creed or national origin, and therefore “impermissibly made gender a distinguishing characteristic.” The court found that § 19(e)(4) placed state sanctions behind Burning Tree’s discriminatory membership rules since, to qualify for the tax benefit, the club had to adhere to its bylaws restricting membership to males. The court said that the primary purpose provision had but one purpose and effect — “to allow country clubs to discriminate on the basis of sex and make sex a factor.” Finally, the court expressed the view that in reality the primary purpose provision

“operates to exclude women and to suggest that a dual system supported by State funds is acceptable. Such interpretation would defeat the purpose and spirit of the E.R.A.”

In view of its disposition of the E.R.A. claim, the court found it unnecessary to consider whether the primary purpose provision also violated Articles 15 and 24 of the Maryland Declaration of Rights.

The court found no merit in the appellees’ claim that women could not constitutionally be excluded from membership in Burning Tree. It noted that the claim was built upon the premise that (1) as Burning Tree served the state function of providing open spaces, and (2) as it was subsidized in doing so by a grant of preferential tax treatment by the State, and (3) as the State participated in assessing the degree of discrimination practiced by the club in order to qualify for preferential tax treatment, Burning Tree’s policy of excluding women from membership and guest privileges constituted state action in violation of the E.R.A. and Article 24 of the Maryland Declaration of Rights. As the court had declared the primary purpose provision to be null and void under the E.R.A., it concluded that the State played no part in establishing, encouraging or sanctioning Burning Tree’s sex discrimination policies and consequently no state action violative of the E.R.A. or Article 24 was involved.

Burning Tree appealed from the circuit court’s decree. We granted certiorari prior to consideration by the intermediate appellate court to consider the significant issues raised in the case.

IV

Burning Tree contends that all-male and all-female private country clubs are entirely consistent with public policy and that the neutral availability of preferential tax benefits to all single sex clubs does not constitute invidious sex-based discrimination in violation of the E.R.A. On the contrary, the club maintains that § 19(e)(4) reflects a policy judgment by the legislature respecting the value of single sex country clubs — that while the statute generally prohibits sex discrimination in mixed membership country clubs, the primary purpose provision represents a legislative determination that where a club is operated primarily for the benefit of a particular sex, or excludes one sex on certain days or at certain hours, no unconstitutional sex discrimination is involved. Burning Tree contends that in enacting the primary purpose provision, the legislature intended that rights of privacy and association be accommodated in the implementation of the State’s policy against sex-based discrimination.

The club argues that a statute offends the E.R.A. only when it imposes different benefits or burdens based on sex. Section 19(e)(4) does not distribute benefits or burdens unequally, the club contends, because the tax deferral is available to all single sex country clubs. It points out that the additional burden imposed on state taxpayers by the deferring of part of a club’s property taxes is shared by male and female taxpayers alike and that, correspondingly, the benefits bestowed upon the general public by the preservation of open spaces is shared equally by men and women. It is only “equality of rights under the law” which Burning Tree says cannot be denied on account of sex; it maintains that no such right is denied to anyone by the primary purpose provision as the only right deriving from that provision is that of a single sex club, whether of men or women, to obtain a tax deferral. Burning Tree argues that the mere grant of a tax benefit to a country club which enters into an open space agreement with the State does not constitute state encouragement, approval, or financial support of private sex discrimination. Burning Tree’s membership policies, the club explains, have remained unchanged since its founding in 1922. Nor it claims does the Attorney General enforce the club’s membership policies as he is simply a fact-finder, determining only whether a club is operated primarily for the benefit of members of a particular sex. As to the Supreme Court cases relied upon by the circuit court, the club contends that they are wholly inapposite because they all involved racial discrimination which arose from a history and in a context entirely different that that which gave rise to the E.R.A. and to the primary purpose provision.

V

That equal rights amendments to state constitutions were prompted by a long history of denial of equal rights for women is well recognized. As the commentators have indicated, the subordinate status of women in our society has for all too many years been firmly entrenched in our legal system, with women being excluded by law from various rights, obligations or responsibilities. See Brown, Emerson, Falk and Freedman, The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971); Note 9 U.Balt.L.Rev. 342 (1980). The basic principle of equal rights amendments “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.” 80 Yale L.J. at 889. Consistent with this basic precept, we noted in Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977) that the Maryland E.R.A., in clear and unequivocal language, mandates that “Equality of rights under the law shall not be abridged or denied because of sex.” This constitutional provision, we said, drastically altered traditional views of the validity of sex-based classifications imposed “under the law,” and was cogent evidence that the people of Maryland were fully committed to equal rights for men and women. It was in this context that we observed that the E.R.A.’s guarantee of equality of rights under the law “can only mean that sex is not a factor.” 280 Md. at 512, 374 A.2d 900.

It is thus clear that the E.R.A. 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.³ The E.R.A. does not, of course, proscribe purely private conduct which results in sex discrimination. It may, however, prohibit such discrimination by private individuals or organizations whose activities so involve the government as to implicate the “state action” doctrine so frequently applied in equal protection cases arising under the fourteenth amendment to the federal constitution. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Statom v. Bd. of Comm., 233 Md. 57, 195 A.2d 41 (1963).⁴

That the E.R.A. is essentially limited in its scope to unequal treatment imposed by law as between the sexes is clear from our cases. In Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973), we held that a statutory scheme which allowed barbers to cut men’s and women’s hair, but restricted cosmetologists to cutting women’s hair, did not violate cosmetologists’ rights under the E.R.A. because the law applied to male and female cosmetologists and, therefore, they were not denied equality of rights based on their sex. In Rand v. Rand, supra, 280 Md. at 516, 374 A.2d 900, we held that the common law rule that the father is primarily liable for the support of his minor children was irreconcilable with the E.R.A. We concluded that the “parental obligation for child support is not primarily an obligation of the father but is one shared by both parents.” Id. Therefore, Rand involved a burden, the child support obligation, imposed solely on one sex. Similarly, in Kline v. Ansell, 287 Md. 585, 593, 414 A.2d 929 (1980), we held that the common law rule that only men could sue or be sued for criminal conversation violated the E.R.A. because it “provides different benefits for and imposes different burdens upon its citizens based solely upon their sex.” Again, in Condore v. Prince George’s Co., 289 Md. 516, 425 A.2d 1011 (1981), we focused on the burdens placed on one group of citizens solely due to their sex, and held that the common law doctrine of necessaries which obligates the husband, but not the wife, to pay for the spouse’s necessaries, violated the E.R.A. In Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984), we considered a criminal statute which prohibited the employment by taverns of so-called female sitters to solicit customers to purchase drinks. Noting that this Court “has consistently held that a law that imposes different benefits and different burdens upon persons based solely upon their sex violates the Maryland ERA,” id. at 574, 474 A.2d 1297, we invalidated the statute because a man could be employed as a sitter but a woman could not. See also Kerr v. Kerr, 287 Md. 363, 412 A.2d 1001 (1980), holding that a provision of the Maryland Constitution permitting imprisonment for failure to pay child support is, in equal protection parlance, a neutral provision as it imposes a sanction on women as well as men.

Representative cases of the Court of Special Appeals are in accord. In Coleman v. State, 37 Md.App. 322, 377 A.2d 553 (1977), it was held that criminal liability for desertion and nonsupport imposed only on the husband violated the E.R.A. And, in Bell v. Bell, 38 Md.App. 10, 379 A.2d 419 (1977), cert. denied, 282 Md. 729 (1978), the court held that the common law presumption that the husband is the dominant figure in the marriage was invalid under the E.R.A. In Tidler v. Tidler, 50 Md.App. 1, 435 A.2d 489 (1981), the court held that under the E.R.A. men and women alike could be held responsible for counsel fees in divorce actions. In Stern v. Stern, 58 Md.App. 280, 473 A.2d 56 (1984), the court held that the duty of child support is a joint duty of both parents under the E.R.A. and extends to the support of a disabled adult child.

Other jurisdictions with equal rights amendments have reached similar results. In Marchioro v. Chaney, 90 Wash.2d 298, 582 P.2d 487, 491-92 (1978), aff'd on other grounds, 442 U.S. 191, 99 S.Ct. 2243, 60 L.Ed.2d 816 (1979), the Supreme Court of Washington upheld a statutory mandate that two members of the State Democratic Committee elected by the counties be of the opposite sex. The court noted that the thrust of the equal rights amendment is to end special treatment for or discrimination against either sex. Id. 582 P.2d at 491.⁵ The court reasoned that sexual equality mandated by statute cannot violate the E.R.A. because there is no discrimination or denial of rights. Furthermore, the court concluded, “while there is certainly a classification, there is equality of treatment and this is sufficient to meet the requirements of the equal rights amendment.” Id. at 492. In State v. Wood, 89 Wash.2d 97, 569 P.2d 1148 (1977), the court recognized that the E.R.A. affords no protection “unless it is first demonstrated that either a right or a responsibility has been denied or abridged on account of that person’s sex.” Id. 569 P.2d at 1151. Accordingly, it held that a statutory requirement that a father contribute to the support of his illegitimate child did not deny the father any rights nor create any new responsibility solely on account of his sex because the responsibility of child support remained with both parents. See also Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975), invalidating under that state’s E.R.A. a regulation which forbade qualified high school girls from playing on sports teams with boys.

Similarly, the Supreme Court of Pennsylvania held that a statutory provision allowing payment of alimony to the wife, but not to the husband, violated the E.R.A. It said:

“The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.” Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60, 62 (1974).⁶

See also Hartford Acc. & Indem. v. Insurance Com’r, 505 Pa. 571, 482 A.2d 542 (1984) indicating that gender-based automobile insurance rates approved by the state were unfairly discriminatory under the Pennsylvania E.R.A.⁷; Com. v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979) (holding statutes affording wives but not husbands in rem support remedies to be infirm under the E.R.A.); Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974) (differential sentencing procedures for men and women violate the E.R.A.).

Under Alaska’s equal rights amendment, the court held that to grant men but not women the right to sue for loss of consortium would be unconstitutional. Schreiner v. Fruit, 519 P.2d 462, n. 16 (Alas.1974).⁸

Under the Illinois equal rights provision, the Supreme Court of Illinois held that provisions under that state’s marriage law which treated males and females differently for the purpose of determining their rights to a marriage license were unconstitutional.’ Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775, 777 (1974).⁹ See also People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (1974) (different age for juvenile classification of boys than girls violates the E.R.A.).

Connecticut’s highest court has held that a regulation violated the state’s equal rights amendment where it allowed a husband, but not a wife, deductions for dependent children in calculating the amount that must be paid to help support a parent on welfare. Page v. Welfare Commissioner, 170 Conn. 258, 865 A.2d 1118, 1124 (1976).¹⁰

The Supreme Court of Virginia has held that the necessaries doctrine which obligates a husband to pay for his wife’s necessaries, but does not similarly obligate the wife, violated that state’s equal rights amendment prohibiting “any governmental discrimination upon the basis of ... sex.” Va. Const., art. I, § 11. Schilling v. Bedford Cty. Memorial Hosp., 225 Va. 539, 303 S.E.2d 905 (1983).

The Supreme Court of Colorado held in R. McG. v. J. W., 200 Colo. 345, 615 P.2d 666 (1980) that a statute granting a natural mother the right to bring an action for the determination of paternity, but not granting the father the same right, violated the Colorado E.R.A.¹¹

In Com. v. King, 374 Mass. 5, 372 N.E.2d 196 (1977), the court held that punishment of female but not male prostitutes violates the E.R.A.¹² In Opinion of the Justices to the House of Rep., 374 Mass. 836, 371 N.E.2d 426 (1977), the court advised that a proposed bill prohibiting women from participating in certain contact sports with men would constitute sexual discrimination in violation of that state’s E.R.A. See also Atty. Gen. v. Mass. Interscholastic Athletic, 378 Mass. 342, 393 N.E.2d 284 (1979) holding that a regulation that prohibited boys from playing on a girls’ team, though girls could play on a boys’ team when the sport was not offered for girls, violated the state’s E.R.A. See also Texas Woman’s University v. Chayklintaste, 521 S.W.2d 949 (Tex.Civ.App.1975), rev’d on other grounds, 530 S.W.2d 927 (Tex.1975) (on-campus housing for women only violates the E.R.A.); Annot., 90 A.L.R.3d 158 (1979); 16A Am.Jur.2d Constitutional Law §§ 574-579 (1979).

VI

The cases construing equal rights amendments share 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. The equality between the sexes mandated by the Maryland E.R.A. is of “rights” of individuals “under the law.” In this context, the word “rights,” according to commentators, “includes all forms of privileges, immunities, benefits and responsibilities of citizens.” 80 Yale L.J., supra, at 908. As to these, the Maryland E.R.A. absolutely forbids the determination of such “rights,” as may be accorded by law, solely on the basis of one’s sex, i.e., sex is an impermissible factor in making any such determination. See Rand v. Rand, supra; Kline v. Ansell, supra; Turner v. State, supra. Manifestly, however, there must be a denial or abridgement of equal rights under the law as between men and women before the protection afforded by the E.R.A. is triggered. Absent such a denial or abridgement, the provisions of the E.R.A. simply have no application.

At stake in this case is not the right of a private men’s country club to maintain a single sex membership policy; that right is conceded. What is challenged as violative of the E.R.A. is the statutory provision granting a governmental tax preference to a private club which discriminates against women solely on the basis of their sex. Of course, action by the State is involved in the enactment of § 19(e)(4), and in its administration by State officials. But the statute does no more than afford the tax benefit to all eligible private country clubs, whether comprised of all men, all women, or of mixed membership, in return for the club’s agreement to preserve its open spaces in the public interest. Recognizing that there may be private country clubs which operate their facilities with the primary purpose of serving or benefiting members of only one sex, the legislature manifestly determined that it was consistent with state policy regarding sex discrimination to contract with such clubs of either sex on an equal basis.¹³ That § 19(e)(4) facially achieves that end is clear; it does not apportion or distribute benefits or burdens unequally among the sexes, but rather makes the tax benefit equally available to all single sex country clubs agreeing to participate in the State’s open space program. The only burden is that imposed on the public treasury as a result of the preferential tax assessment afforded to qualifying country clubs. This burden is born equally by all Maryland citizens, men and women alike. At the same time, the benefits which accrue from the preservation of open spaces are shared equally by each sex. Under its terms, the primary purpose provision is sex-neutral because it operates without regard to gender. It does not involve unequal treatment as between the sexes in obtaining the right conferred by the statute to obtain a tax deferral.

VII

We recognize that a statute may be couched in gender neutral terms and still have an unconstitutionally discriminatory purpose and effect. The Supreme Court has so found in a number of cases involving racial discrimination under the fourteenth amendment.¹⁴ Placing reliance on this principle, the appellees maintain that as the State could not itself require a single sex membership policy in a private country club, neither may it award financial aid in the form of a tax benefit to such an entity under a statutory scheme which, while gender-neutral on its face, unconstitutionally perpetuates sex discrimination in violation of the E.R.A. In this regard, appellees say that it is because of Burning Tree’s discriminatory membership policy that it qualifies for the tax benefit under the primary purpose provision of the statute. Consequently, they argue that as the State is responsible for the enactment and implementation of § 19(e)(4), it has encouraged, supported and financially aided Burning Tree in a way which makes its discriminatory policy attributable to the State itself. Appellees emphasize that Burning Tree is the only single sex club in the State to benefit from the tax subsidy; that there are no all-women country clubs within the State; and that women, therefore, do not share equally in the State’s largess. Proceeding further, the appellees suggest that under the statutory scheme, Burning Tree must continue to discriminate against women in order to retain its valuable tax benefit. They claim that the statute constitutes a state-established and enforced disincentive to easing discrimination barriers between the sexes since any change in Burning Tree’s membership policy would place its preferential tax statute in jeopardy, dictating therefore that it continue to exclude women from membership. Appellees rely with particular enthusiasm on Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), a fourteenth amendment racial discrimination case which they contend holds that a state statute is unconstitutional even if racially neutral in its terms, if it provides aid to private institutions that practice racial or other forms of invidious discrimination.

As earlier observed, the Maryland E.R.A. prohibits only sex discrimination that is imposed “under the law,” i.e., by direct government action or by the conduct of a private party or organization whose activities so involve the government that its action can fairly be treated as “state action.” The limits of the state action doctrine, as applied in fourteenth amendment litigation, have been well explained in a number of recent Supreme Court cases.

In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Court said that for the state action doctrine to apply the conduct allegedly causing a deprivation of the claimed constitutional right must be fairly attributed to the state. 457 U.S. at 937, 102 S.Ct. at 2753. In the determination of this issue, Lugar indicated the application of this two-part test:

“First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible____ Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Id.

As to the second part of the test, Lugar said that action by a private party pursuant to a statute “without something more” does not justify a characterization of the private party as a state actor. Id. at 939, 102 S.Ct. at 2754. Illustrating the application of the two-part test in connection with a private club, the Court referred to its earlier decision in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). In that case, a private club dispensing alcoholic beverages, and therefore subject to extensive state regulation, had a racially discriminatory membership policy. The Court first noted that for the state action doctrine to be applicable, the impetus for the forbidden discrimination need not originate with the state “if it is state action that enforces privately originated discrimination.” 407 U.S. at 172, 92 S.Ct. at 1971. But the Court said that when the impetus for the discrimination is private, the state must have significantly involved itself with the invidious discrimination before the doctrine may be invoked. Private discrimination has never been held to violate the fourteenth amendment, the Court said, simply because the private organization “receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatsoever.” Id. at 173, 92 S.Ct. at 1971. The holding in Moose Lodge was that the state, acting through its Liquor Control Board, played no part in establishing or enforcing the discriminatory membership policy of the club, and thus there was no fourteenth amendment violation. Id. at 175, 92 S.Ct. at 1972. In another aspect of the case, the Court enjoined enforcement of a state rule which affirmatively required the Lodge to comply with its own racially discriminatory constitution and bylaws. “State enforcement of this rule, either judicially or administratively, would, under the circumstances, amount to a governmental decision to adopt a racially discriminatory policy.” Lugar, supra, 457 U.S. at 938 n. 20, 102 S.Ct. at 2754 n. 20.

Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) involved a private nursing home which cared for medicaid patients. The state licensed and regulated the facility and paid the expenses of more than 90 percent of the home’s patients. The Court concluded that the decision of the nursing home to discharge or transfer medicaid patients without notice or an opportunity for a hearing did not constitute state action because the state was not involved in making those decisions. In the course of its opinion, the Court delineated the reach of the state action doctrine. It said, in part, that a sufficiently close nexus between the State and the challenged action of the private organization must be established so that the action of the latter may fairly be treated as that of the state itself. Id. at 1004, 102 S.Ct. at 2785. The purpose of this requirement, the Court said, “is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct [of the private party] of which the plaintiff complains.” Id. (emphasis in original). In this regard, the Court said that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id. Explaining further, the Court said that “[m]ere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.” Id. at 1004-05, 102 S.Ct. at 2786.

Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) involved a private school’s decision to discharge a number of its teachers. The school was extensively regulated by and received most of its funds from the state. The Court held that “the school’s receipt of public funds does not make the discharge decisions acts of the State.” 457 U.S. at 840, 102 S.Ct. at 2771.¹⁵

While we think the state action doctrine is generally applicable to claims of unconstitutional sex discrimination under the E.R.A., the doctrine plainly has no application in the circumstances of this case. The State did not initiate Burning Tree’s single sex membership policy; it existed long before enactment of § 19(e)(4). Nor was Burning Tree’s decision to discriminate against women caused by the State. Neither is the State responsible for Burning Tree’s membership policy; that policy did not result from the State’s exercise of any coercive power over the club’s activities. Conversely, the tax benefit available under the statute did not cause Burning Tree’s discrimination against women. The purpose of the statute, i.e., to preserve open spaces, has no relation to sex discrimination. As we see it, nothing in § 19(e)(4) encourages or discourages Burning Tree from changing its membership policy. The club would not lose its tax benefit if it decided to admit women; it would then be evaluated as a mixed membership club eligible for the tax benefit without regard to the primary purpose provision. Not only is the State not significantly involved in Burning Tree's membership policy, it is not involved at all. At worst, the State, by acquiescence, is indifferent to Burning Tree’s policy of excluding women from membership. We thus conclude that Burning Tree is not a “state actor” within the contemplation of the state action doctrine. In so concluding, it is manifest that we do not share the lower court’s view that the Attorney General, acting under the statute, encouraged and enforced Burning Tree’s discriminatory membership policy. As we observed in State v. Burning Tree Club, 301 Md. 9, 25, 481 A.2d 785 (1984), the Attorney General’s role under the statute is limited to a determination of whether a club’s facilities are operated with the primary purpose of serving or benefiting members of a particular sex. We there said that the Attorney General “merely is a factfinder ... [and] does not administer the statute.” 301 Md. at 25, 481 A.2d 785.

As a general proposition, discrimination by a private organization which may receive some government benefit does not violate the fourteenth amendment. See Moose Lodge, supra, 407 U.S. at 173, 92 S.Ct. at 1971. No case holds under circumstances like those here involved that the mere grant of a tax benefit to a private party with discriminatory membership policies, without more, transforms the private club into a state entity, or compels a finding that the state encourages or supports the club’s discriminatory policy. See Bob Jones University v. United States, 461 U.S. 574, n. 24, 103 S.Ct. 2017, n. 24, 76 L.Ed.2d 157 (1983).¹⁶

Norwood v. Harrison, supra, upon which appellees rely, is readily distinguishable from the case now before us. The statute under review in Norwood required the state of Mississippi to provide free textbooks to students in private as well as public schools. Many of the private schools in that state discriminated on the basis of race in their admission policies. The Supreme Court held, in light of the constitutional considerations underlying Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) that the state’s aid to the students enrolled in racially discriminatory private schools violated the Fourteenth Amendment.

The case before us raises no Fourteenth Amendment claims and Norwood is therefore not controlling authority. Even if the Fourteenth Amendment was implicated in this case, however, Norwood would not be directly applicable, since the Supreme Court applies a more lenient standard of review to sex discrimination cases than to race discrimination cases. Compare Lehr v. Robertson, 463 U.S. 248, 264-67, 103 S.Ct. 2985, 2995-96, 77 L.Ed.2d 614 (1983) (to withstand scrutiny under the Fourteenth Amendment, state action “may not subject men and women to disparate treatment when there is no substantial relation between the disparity and an important state purpose”); with Palmore v. Sidoti, 466 U.S. 429, -, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984) (to withstand scrutiny under the Fourteenth Amendment, state action that entails a classification on the basis of race “must be justified by a compelling governmental interest and must be ‘necessary ... to the accomplishment’ of its legitimate purpose”). Moreover, the Supreme Court’s analysis in Norwood is inapplicable to cases that arise under the Maryland E.R.A. As our cases clearly demonstrate, state action does not violate the E.R.A. unless it has the effect of abridging or denying “equality of rights under the law” on the basis of sex. See, e.g., Turner, supra, 299 Md. at 574, 474 A.2d 1297; Condore, supra, 289 Md. at 527-30, 425 A.2d 1011; Kline, supra, 287 Md. at 592-93, 414 A.2d 929; Rand, supra, 280 Md. at 516, 374 A.2d 900. In contrast, Norwood indicated that the Fourteenth Amendment “does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a [racially discriminatory] private school and the continued well-being of that school.” 413 U.S. at 465-66, 93 S.Ct. at 2810-11. Thus, although a causal connection between the state action and the discrimination is required under the Maryland E.R.A., it was not required under Norwood’s analysis of the Fourteenth Amendment. We therefore find Norwood inapposite to the present case.

The mere fact that Burning Tree is the only club presently qualifying under the primary purpose provision does not of itself change a sex-neutral statute into a nefarious state sponsored scheme to invidiously discriminate against women solely on account of their sex. Needless to say, § 19(e)(4) did not cause there to be no all-female country clubs (if such is the fact). Compare Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), a case challenging a state veteran preference statute on the ground that its effects upon women were disproportionately adverse from that- of men and, therefore, constituted discrimination in violation pf the equal protection clause of the fourteenth amendment. Because the law provided equal treatment to all veterans, whether men or women, the Court said that the mere fact that the vast majority of veterans were men did not render unconstitu tional the gender-neutral preference. And see Reyes v. Prince George’s County, 281 Md. 279, 880 A.2d 12 (1977), involving a claim that a statute constituted a special law violative of the Maryland Constitution because it provided funds for sports arenas within a designated county where, at the time of the enactment, there was but one beneficiary. We there found no constitutional violation because the law applied to all sports arenas in the county generally, making eligible for such funds any additional arenas that might be constructed in the future.

VIII

We need not here give detailed consideration to whether state action in providing “separate but equal” facilities for men and women violates the E.R.A. Conceivably, a law requiring separation of the sexes might be subject to challenge on the ground that unconstitutional sex discrimination resulted therefrom because of inherent inequality of treatment for one sex or the other in the separation process itself. See 80 Yale L.J., supra, at 902-03. Of course, § 19(e)(4) does not require separate but equal country clubs for men and women but simply recognizes that there may be single sex clubs eligible to participate in the State’s open space program.¹⁷

IX

A majority of the judges of the Court do not fully share the analysis set forth in this opinion and hold that the primary purpose provision is unconstitutional under the E.R.A. for the various reasons set forth in the concurring and dissenting opinions. It therefore becomes necessary to address Burning Tree’s argument that, if the primary purpose provision enacted by Ch. 870 of the Acts of 1974 is unconstitutional, that provision cannot be severed from the prohibition against sex discrimination which was also enacted as part of Ch. 870.

Because appellees’ complaint challenged only the primary purpose provision and because the circuit court’s declaration of invalidity was limited to that provision, we accordingly limited our analysis of the E.R.A. issue. The sever-ability issue, however, presents a question of legislative intent. In that context we must examine all of Ch. 870, including all of the Senate Amendment. In addition to inserting the primary purpose provision into H.B. 620 (see part I hereof), the Senate Amendment also provided that the prohibition against sex discrimination proposed by H.B. 620 would not apply “to the clubs which exclude certain sexes only on certain days and at certain times.” We shall call this provision the “periodic discrimination” provision.

Viewed as a prohibition against sex discrimination Ch. 870 affects, as a theoretical matter, only a narrow range of country club activity and affects, as a practical matter, an even more narrow range of activity. Under the primary purpose provision a country club participating in the open space program may exclude a person from membership solely because of that person’s sex. Under the periodic discrimination provision a country club contracting to maintain open space may exclude members, based on their sex, from using some or all of the club facilities so long as the exclusion operates “only on certain days and at certain times.” ¹⁸ Theoretically, Ch. 870 prevents a country club from having different initiation and/or membership fees based on sex. Practically, however, if a club wished to deter members of one sex from applying by setting higher charges for that sex, the objective could more effectively be obtained through a total exclusion of members of that sex in reliance on the primary purpose provision. As a prohibition against sex discrimination the net effect of Ch. 870 seems to be to prohibit a country club from continuously excluding, based on sex, members or their guests from using some part, but less than all, of the club’s facilities or services.¹⁹ An example of a facility falling within Ch. 870’s prohibition would be a bar serving exclusively one sex at all times.

The invalidity of the primary purpose provision has no effect on Ch. 870’s prohibitions against discrimination based on race, color, creed, or national origin. Nor does the invalidity of the primary purpose provision have any effect on the legislative scheme for bringing about compliance with those four prohibitions. The question in this phase of the case is whether the prohibition against sex discrimination can stand without the primary purpose provision and qualified only by the unchallenged periodic discrimination provision. The Court concludes that the sex prohibition cannot so stand.

There is no presumption in favor of severability where the invalid portion of a statute is an exception to a prohibition. In State v. Schuller, 280 Md. 305, 372 A.2d 1076 (1977), this Court considered a statute which banned residential picketing, unless a labor dispute was involved. Because of the exception the statute was held to violate equal protection, but the invalid exception was not severable on the following rationale.

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. [Id. at 319, 372 A.2d at 1083.]

See Turner v. State, supra; Wheeler v. State, 281 Md. 593, 380 A.2d 1052 (1977). Here, severing the primary purpose provision would make the prohibition against sex discrimination operate as to single-sex country clubs and thereby enlarge that prohibition beyond its reach as enacted.

Ultimately the issue involves ascertaining what would have been the intent of the Legislature had the partial invalidity been known.²⁰ See Turner v. State, supra, 299 , 474 A.2d at 1302. This Court has said that if the dominant purpose of the statute may be carried out, it will sever the invalid portion. See Davis v. State, 294 Md. 370, 451 A.2d 107 (1982); Cities Service Company v. Governor, 290 Md. 553, 431 A.2d 663 (1981). It is clear from a comparison of Ch. 870 as enacted to the H.B. 620 as introduced that the dominant purpose of the “prohibition” against sex discrimination in the bill as enacted was to avoid, as much as possible, disturbing existing, sexually discriminatory practices of country clubs without completely deleting sex as one of the bases of prohibited discrimination. From the standpoint of sex discrimination Ch. 870 is nearly a complete, intrinsic contradiction. It confers a benefit on the one hand and then takes it away almost entirely on the other. It says that sex discrimination by country clubs is prohibited and at the same time says that sex discrimination is not prohibited when practiced by any club whose facilities are operated with the primary purpose of serving members of a particular sex. The primary purpose provision eliminates the most significant part of the ostensible prohibition and permits the opportunity for membership to be denied solely on the basis of sex. To make the ostensible prohibition against sex discrimination even more ineffective, a country club which has members of both sexes may discriminate, solely on the basis of sex, “on certain days and at certain times.”

Under these circumstances we cannot say that the dominant purpose of the General Assembly was to enact a bar against sex discrimination which was to operate absent the primary purpose provision. As proposed, H.B. 620 would have completely barred sex discrimination. The Senate Amendment rendered the prohibition almost toothless. The House concurred in the extraction. To restore a full set of teeth to the prohibition would attribute to the General Assembly an intent which is belied by its actions. The invalid primary purpose provision is not severable from the prohibition against sex discrimination so that the latter also falls, together with the then completely superfluous periodic discrimination provision.

X

The result of the several opinions in this Court is to affirm the judgment entered by the Circuit Court for Montgomery County declaring that the “ ‘primary purpose’ provision of Article 81, Section 19(e)(4) of the Maryland Code violates Article 46 of the Maryland Declaration of Rights and is null and void.”

The result of the concurrence of a majority of the judges of this Court in part IX of this opinion which holds that the primary purpose provision is not severable from the sex discrimination prohibition enacted by Ch. 870 of the Acts of 1974 is to reverse the injunction issued by the Circuit Court for Montgomery County against “the State of Maryland and the Maryland State Department of Assessments and Taxation.”

In view of its holding that the primary purpose provision was invalid but was severable from the balance of Ch. 870 the circuit court did not reach appellees’ contentions that the primary purpose provision violated Arts. 15 and 24 of the Maryland Declaration of Rights. We express no opinion on the merits of those contentions. Even if we were to assume that the contentions were meritorious, they would not support the issuance of the injunctions entered in the circuit court because the primary purpose provision is not severable from the sex discrimination prohibition.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED AS TO THE DECLARATORY JUDGMENT AND REVERSED AS TO THE INJUNCTIVE RELIEF. COSTS TO BE EVENLY DIVIDED BETWEEN APPELLANT AND APPELLEES.

RODOWSKY, J., concurs in the judgment.

ELDRIDGE, COLE and BLOOM, JJ., concur in part and dissent in part.

Footnotes

1

. Article 15 provides in part that all taxes levied by the State shall be "for the support of the general State Government” and that taxes are to be imposed "with a political view for the good government and benefit of the community." The power of the legislature to grant exemptions from property taxes for a public purpose is well recognized and consistent with the provisions of this article. State Tax Comm. v. Gales, 222 Md. 543, 161 A.2d 676 (1960); Baltimore City v. Starr Church, 106 Md. 281, 67 A. 261 (1907).

2

. Article 24 provides in part that no person "ought ... [to be] deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” This article embodies the concept of equal protection of the law, and we have long recognized that decisions of the Supreme Court interpreting the equal protection clause of the federal constitution are persuasive authority in cases involving the equal treatment provisions of Article 24. Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 458 A.2d 758 (1983).

3

. Disparate treatment on account of physical characteristics unique to one sex is generally regarded as beyond the reach of equal rights amendments. See, e.g., Brooks v. State, 24 Md.App. 334, 330 A.2d 670, cert. denied, 275 Md. 746 (1975), holding that it does not violate the E.R.A. to punish only men for rape as principals in the first degree because only men can commit that crime. See also 80 Yale L.J., supra, at 893-896. And, see generally Annot., 90 A.L.R.3d 158 (1979) (Construction and Application of State Equal Rights Amendments Forbidding Determination of Rights Based on Sex).

4

, The Attorney General of Maryland has also recognized that sex discrimination policies of private organizations not affected with state action are not within the ambit of the E.R.A. See 68 Op.Att’y Gen. 164 (1983); 68 Op.Att’y Gen. 173 (1983); 65 Op.Att’y Gen. 103 (1980); 63 Op.Att’y Gen. 246 (1978).

5

. The Washington equal rights amendment, Wash. Const., art. 31, § 1, provides: "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.”

6

. The Pennsylvania E.R.A. provides that "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const., art. I, § 28.

7

. The Attorney General of Maryland has reached the opposite conclusion. See 68 Op.Att’y Gen. 164 (1983).

8

. "No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin.” Alas. Const., art. 1, § 3.

9

. "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.” 111. Const., art. 1, § 18.

10

. "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.” Conn. Const., art. I, § 20.

11

. “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." Colo. Const., art. 2, § 29.

12

. The Massachusetts E.R.A. provides: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (Art. 106, Mass. Const.)

13

. The public policy of the State expressly prohibits sex discrimination in matters involving public accommodations, employment, housing and bank financing. See Code, Art. 49B, §§ 5, 14, 19 and 22, respectively. Private clubs are expressly excluded from the mandate of § 5.

14

. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (invalidating a racially neutral anti-miscegenation statute on the ground that it unconstitutionally discriminated against blacks); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) (invalidating a state constitutional amendment which prohibited the enactment of statutes limiting the right of any person to sell or not sell property to any other person); Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964) (state requirement that a candidate’s race be included on the election ballot discriminated against blacks even though the requirement was equally applicable to all races); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (governmental enforcement of racially restrictive covenants discriminated against blacks).

15

. The Attorney General of Maryland, in 65 Op.Att’y Gen. 103 (1980), found no state action in violation of the E.R.A. in the enactment of a statute providing funds to a private women’s college which discriminated against men. Three years later, in 68 Op.Att’y Gen. 164 (1983), the Attorney General reached a different conclusion as to the tax deferral granted Burning Tree in the matter now before us.

16

. We note that Code, Art. 81, § 9(e) exempts from taxation qualifying property used and owned by "any nonprofit ... fraternal or sororal, benevolent, educational, or literary institutions or organizations, including ... nonpolitical, nonstock men’s or women’s clubs.” Section 9(c) dealing with church related educational institutions and § 9(e) involving other private schools appear to authorize property tax exemptions for single-sex schools.

17

. We note that Code, Art. 49B, § 7 authorizes the State to provide separate but equal facilities for men and women in state owned or operated public institutions.

We note further that Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975) suggests that separate but equal athletic teams in public schools for males and females would not violate that state’s E.R.A. Petrie v. Illinois High Sch. Ass’n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855, 864 (1979) appears to be to the same effect.

The maintenance of all-male and all-female public schools has been held not to violate the fourteenth amendment. See Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3rd Cir.1976), aff’d, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977). Similarly, it has been held that separate school athletic programs for boys and girls do not violate the fourteenth amendment. For cases so holding, see Yellow Springs, Etc. v. Ohio High Sch. Ath. Ass’n, 647 F.2d 651, 657 (6th Cir.1981); O’Connor v. Bd. of Ed. of School Dist. No. 23, 645 F.2d 578, 581 (7th Cir.1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 (1981); O’Connor v. Board of Educ. of School Dist. 23, 545 F.Supp. 376, n. 7 at 381-82 (N.D.Ill.1982); Lafler v. Athletic Bd. of Control, 536 F.Supp. 104, 106 (W.D.Mich.1982); Hoover v. Meiklejohn, 430 F.Supp. 164, 170 (D.Col.1977); Ritacco v. Norwin School District, 361 F.Supp. 930, 932 (W.D.Pa.1973); Mich. Dept. of Civ. Rights v. Waterford Tp., 124 Mich.App. 314, 335 N.W.2d 204, 208 (1983). See also Leffel v. Wisconsin Interscholastic Athletic Ass’n, 444 F.Supp. 1117, 1121 (E.D.Wis.1978); Bucha v. Illinois High School Ass'n, 351 F.Supp. 69, 74-75 (N.D.Ill.1972).

18

. While an objective of the periodic discrimination provision may have been to reserve certain days and times during which only women could use the golf course at a mixed membership country club, the language of the provision is not restricted to that specific application.

19

. Appellees expressly disclaim that the E.R.A. prohibits separation on the basis of sex facilities of a "uniquely private and personal nature.”

20

. The 1974 Journals of the House of Delegates and Senate cast only minimal light on the problem. House Bill 620 in the form in which it was introduced passed the House on March 12 by a vote of 83 to 34. House J. at 1704. That same day the Bill was read the first time in the Senate and referred to the Committee on Finance. Senate J. at 1185. The Bill was favorably reported by the Finance Committee on April 3, but on motion of the sponsor of the Senate Amendment it was made a Special Order for April 4. Senate J. at 2590. On April-4 the Senate Amendment was offered from the floor and adopted. The amended Bill passed the Senate on third reading that same day by a vote of 30 to 2 and the Bill was returned to the House. Senate J. at 2779. The House concurred in the Senate Amendment on April 6 by a vote of 83 to 11. House J. at 4495. The last day of the 1974 legislative session was Monday, April 8.