Conaway v. Deane

932 A.2d 571, 401 Md. 219, 2007 Md. LEXIS 575

• Court: Court of Appeals of Maryland
• Decided: September 18, 2007
• Docket: 44, Sept. Term, 2006
• Status: Published

Opinions

HARRELL, J.

Frank Conaway, Clerk of the Circuit Court for Baltimore City, and other circuit court clerks throughout Maryland (“the Clerks”) denied marriage licenses to certain same-sex couples. The Clerks denied those applications pursuant to Maryland Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201 (hereinafter “Family Law § 2-201”).¹ The Circuit Court for Baltimore City, where the aggrieved applicants filed suit against the Clerks, granted summary judgment in favor of the Plaintiffs-Appellees, declaring that the statute discriminates facially on the basis of sex, in violation of Article 46 of the Declaration of Rights of Maryland, otherwise known as the Equal Rights Amendment (“ERA”).² The Circuit Court, in its memorandum opinion, expressly declined to address Appellees’ equal protection and substantive due process arguments that were based on the “Law of the Land” provisions of Article 24 of the Declaration of Rights.³ Defendants-Appellants noted a timely appeal to the Court of Special Appeals. We issued a writ of certiorari to the intermediate appellate court before it could decide the appeal. 393 Md. 477, 903 A.2d 416 (2006). For the reasons stated here, we shall reverse the judgment of the Circuit Court.

FACTUAL BACKGROUND

The factual background, much like challenges to similar state marriage statutes in other jurisdictions, is undisputed. Maryland law provides that no individuals may marry “in this State without a license issued by the clerk for the county in which the marriage is performed.” Md.Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-401(a). In order to apply for such a license, at least one of the parties to the marriage must appear before the clerk of the circuit court for that county and, under oath, provide the following information: (1) the full name of each party; (2) the residence of each party; (3) each party’s age; (4) the degree of consanguinity, if any, between the parties; (5) the marital status of each of the parties; and (6) the social security number of each party. Md.Code (1957, 2006 RepLVoL), Family Law Article, § 2-402(b). If, while questioning an applicant, “the clerk finds that there is a legal reason why the applicants should not be married, the clerk shall withhold the license unless ordered by the court to issue the license.” Md.Code (1957, 2006 Repl. Vol.), Family Law Article, § 2-405(e).

Eighteen of the Appellees here are nine same-sex couples who, at various times in June and July 2004, sought marriage licenses in Baltimore City and several counties in Maryland. The nineteenth Respondent is a homosexual male who expressed a wish to apply in the future for a marriage license.⁴ Frank Conaway, Clerk of the Circuit Court for Baltimore City, and the other circuit court clerks denied⁵ these applications pursuant to Family Law § 2-201, which provides that “[o]nly a marriage between a man and a woman is valid in this State,” thereby depriving Appellees of the various benefits and privileges that accompany the institution of marriage.⁶ It is undisputed that Appellees were denied marriage licenses by the Clerks solely because they are same-sex couples. Appellees are otherwise qualified to marry: each partner is unrelated by blood or by marriage,⁷ each partner is over the age of 17,⁸ each partner is unmarried,⁹ each of the relationships are consensual, and each of the applicants possess the capacity to marry.

Appellees filed on 7 July 2004 a Complaint for Declaratory and Injunctive Relief, naming as defendants Frank Conaway; Rosalyn Pugh, Clerk of the Circuit Court for Prince George’s County; Evelyn Arnold, Clerk of the Circuit Court for St. Mary’s County; Dennis Weaver, Clerk of the Circuit Court for Washington County; and Michael Baker, Clerk of the Circuit Court for Dorchester County.¹⁰ The four count complaint alleges that Family Law § 2—201:(1) unconstitutionally discriminates based on sex, in violation of Article 46 of the Maryland Declaration of Rights; (2) unjustifiably discriminates based on sexual orientation, in violation of the equal protection provisions of Article 24 of the Maryland Declaration of Rights; (3) disparately inhibits, in violation of the equal protection provisions of Article 24 of the Maryland Declaration of Rights, the same-sex couples’ fundamental rights to marry, privacy, autonomy, and intimate association, because the statute allows similarly-situated opposite-sex couples to exercise those rights; and (4) unjustifiably burdens the exercise of same-sex couples’ fundamental rights to marry, privacy, autonomy, and intimate association, in violation of the due process provisions of Article 24 of the Maryland Declaration of Rights.

Three motions to intervene were filed subsequent to the filing of Appellees’ complaint. Robert P. Duckworth, Clerk of the Circuit Court for Anne Arundel County, was the first to file a motion to intervene as a defendant. Mr. Duckworth contended that, as a county circuit court clerk, a decision in favor of the Plaintiffs-Appellees would create uncertainty with regard to the discharge of his job duties, and would subject him to potential civil and criminal litigation in the future discharge of those duties. Duckworth v. Deane, 393 Md. 524, 530-31, 903 A.2d 883, 887 (2006) (describing the procedural history of the litigation to that point in time). Eight members of the Maryland General Assembly likewise attempted to intervene as defendants, claiming that, as members of the Legislature, their legislative authority included the power to regulate marriage in the State of the Maryland. Duckworth, 393 Md. at 532, 903 A.2d at 887. A judicial decision invalidating the marriage statute, according to the legislators, would be a “judicial encroachment” upon their legislative authority in violation of the separation of powers principles in Article 8 of the Maryland Declaration of Rights. Duckworth, 393 Md. at 532, 903 A.2d at 887-88. The third motion to intervene was filed in proper person by Toni Marie Davis, a resident of Baltimore City. Ms. Davis asserted that because “the homosexual lifestyle [was] against [her] religion,” allowing same-sex marriage would, in essence, burden unconstitutionally her First Amendment right to practice her religion. Duckworth, 393 Md. at 532-33, 903 A.2d at 888. The motions were denied by the Circuit Court and the interveners each noted appeals to the Court of Special Appeals. We issued, on our initiative, a writ of certiorari on 17 December 2005 before the intermediate appellate court decided the appeal. Duckworth v. Deane, 384 Md. 448, 863 A.2d 997 (2004). For reasons not pertinent to the merits before us now, this Court, after briefing and oral argument, affirmed on 28 July 2006 the Circuit Court’s decision to deny the requested interventions. Duckworth, 393 Md. at 545, 903 A.2d at 895.

After the motions to intervene were denied, the parties filed cross-motions for summary judgment, pursuant to Maryland Rule 2-501. The Appellees supported their motion with a series of exhibits and declarations by the various plaintiffs and others.¹¹ The trial judge held a motions hearing on 30 August 2005 and, on 20 January 2006, issued a memorandum opinion in which she held that the exclusion of same-sex couples from marriage constitutes a sex-based classification, lacking a constitutionally sufficient justification in violation of Article 46.

She granted, therefore, Appellees’ motion for summary judgment, denied Appellants’ cross-motion, and entered summary judgment in favor of the same-sex couples. The Circuit Court, pursuant to Maryland Rule 2-632, stayed enforcement of its ruling pending the resolution of the expected appeal and because of the potential consequences of the ruling on circuit court clerks’ offices throughout the State.¹² We issued a writ of certiorari upon the Clerks’ timely petition. 393 Md. 477, 903 A.2d 416 (2006).

STANDARD OF REVIEW

Any party to an action may file a motion for summary judgment, pursuant to Maryland Rule 2-501(a), if it is claimed that there exists no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(a). The questions for the trial court to determine from the pleadings and papers properly before it on a motion for summary judgment, therefore, are whether there exists a genuine dispute of material fact and, if no such dispute is revealed, whether the movant is entitled to prevail as a matter of law on those undisputed facts. See, e.g., Brewer v. Mele, 267 Md. 437, 441, 298 A.2d 156, 159 (1972). Whether a trial court’s grant of summary judgment was proper is a question of law and is reviewed de novo by the appellate courts. Livesay v. Baltimore, 384 Md. 1, 9, 862 A.2d 33, 38 (2004). In such review, an appellate court resolves in favor of the non-moving party all reasonable inferences that may be adduced from the underlying facts as revealed by the pleadings, admissions, and affidavits. Miller v. Bay City Prop. Owners Ass’n, Inc., 393 Md. 620, 631, 903 A.2d 938, 944-45 (2006) (quoting King v. Bankerd, 303 Md. 98, 110-11, 492 A.2d 608, 614 (1985) (citing in turn Lynx, Inc. v. Ordnance Prod., Inc., 273 Md. 1, 7-8, 327 A.2d 502, 509 (1974))); Merchants Mtg. Co. v. Lubow, 275 Md. 208, 339 A.2d 664 (1975).

“ ‘Maryland appellate courts, as a general rule, will consider only the [legal] grounds upon which the [trial] court relied in granting summary judgment.’ ” Ross v. State Bd. of Elections, 387 Md. 649, 667, 876 A.2d 692, 702 (2005) (quoting Eid v. Duke, 373 Md. 2, 10, 816 A.2d 844, 849 (2003)); Miller, 393 Md. at 632, 903 A.2d at 945 (“ ‘An appellate court ... examines the same information from the record and determines the same issues of law as the trial court.’ ” (quoting PaineWebber, Inc. v. East, 363 Md. 408, 413, 768 A.2d 1029, 1032 (2001))); Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 729 (2001) (quoting PaineWebber, 363 Md. at 422, 768 A.2d at 1036). This premise is only valid, however, when “there are two or more separate and distinct grounds for the grant of summary judgment, and the trial court relies on one, but not another, in granting summary judgment.” Ross, 387 Md. at 667, 876 A.2d at 702-03. Thus, if two or more similar and “inextricably intertwined” grounds for summary judgment exist, this Court may consider alternatively any related ground, if raised properly by the litigant in his, her, or its motion for summary judgment, if we find fault with the ground relied upon facially by the trial court. Id.; see also Eid, 373 Md. at 10-11, 816 A.2d at 849 (holding that the issues of ERISA preemption and the existence of a patient-physician relationship giving rise to a state law medical malpractice cause of action are so “inextricably intertwined” that both grounds may be considered in the review of a grant of summary judgment, even though the trial court relied solely upon the ERISA preemption issue in granting summary judgment); cf. Geisz v. Greater Balt. Med. Ctr., 313 Md. 301, 314 n. 5, 545 A.2d 658, 664 n. 5 (1988) (“On appeal from the grant of summary judgment which is reversible because of error in the ground relied upon by the trial court[,] the appellate court will not ordinarily sustain the judgment by ruling on another ground, not ruled upon [by] the trial court, if the alternative ground is one as to which the trial court had ... discretion to deny summary judgment”) (emphasis added). Whether Family Law § 2-201 is violative of Articles 24 or 46 are issues purely of law and are so inextricably intertwined with one another that we shall consider the Article 24 claim, even though we find error in the Circuit Court’s singular reliance on Article 46.

DISCUSSION

I. Claim of Sex-based Discrimination Under Article 46 of the Declaration of Rights

Appellees assert that, because Family Law § 2-201 excludes same-sex couples from marriage, the statute draws an impermissible classification on the basis of sex, in violation of Article 46 of the ERA. Specifically, Appellees reason that “[a] man who seeks to marry a woman can marry, but a woman who seeks to marry a woman cannot. Similarly, a woman who seeks to marry a man can many, but a man who seeks to marry a man cannot.” Thus, because Family Law § 2-201 allows opposite-sex couples to marry but, at the same time, necessarily prohibits same-sex couples from doing so, the statute “makes sex a factor in the enjoyment and the determination of one’s right to marry,” and is therefore subject to strict scrutiny.¹³

Appellees’ argument, at first glance, is beguiling. They point to several Maryland precedents that, if viewed literally, appear to support the proposition that a statute receives strict scrutiny analysis under Article 46 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review. See Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037 (1998) (“[S]ex is not, and can not be, a factor in the enjoyment or the determination of legal rights.”) (citing Rand v. Rand, 280 Md. 508, 513, 374 A.2d 900, 902-03 (1977) and Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971)); Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 63-64, 501 A.2d 817, 822 (1985) (Burning Tree I) (“[S]ex is not a permissible factor in determining the legal rights of women, or men ... [such 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.”); Boblitz v. Boblitz, 296 Md. 242, 274-75, 462 A.2d 506, 522 (1983) (holding that, after “legislative passage and approval by the people of Article 46 of the Declaration of Rights, any ancient deprivation of rights based upon sex would contravene the basic law of this State”). When considering those cases in context,¹⁴ however, and because we believe that Article 46 was not intended by the General Assembly and the Maryland voters who enacted and ratified, respectively, the Maryland ERA in 1972 to reach classifications based on sexual orientation, we conclude that Family Law § 2-201 does not draw an impermissible sex-based distinction.

A. The Legislative History of the Maryland Equal Rights Amendment indicates that the ERA was intended to combat discrimination between men and women as classes.

The Maryland General Assembly, in 1972, ratified overwhelmingly a proposed Federal Equal Rights Amendment,¹⁵ and passed during that same legislative session Chapter 366, § 1 of the Acts of 1972. Governor’s Comm’n to Study Implementation of the Equal Rights Amendment, Application of the Equal Rights Amendment 1 (1977). The General Assembly, through this legislative enactment, amended the Declaration of Rights to include an Equal Rights Amendment (ERA) that tracked closely the language of the proposed federal amendment.¹⁶ Chapter 366, § 1 of the Acts of 1972. In its final form, the amendment to the Maryland Declaration of Rights read: “Equality of rights under the law shall not be abridged or denied because of sex.” Id. Maryland voters ratified overwhelmingly this amendment, by a 2 to 1 margin, in the November 1972 referendum, and the amendment became Article 46 on 5 December 1972. Governor’s Comm’n to Study Implementation of the Equal Rights Amendment, Application of the Equal Rights Amendment 1 (1977).

The official legislative history, at least for the Maryland ERA, is not particularly instructive as to discrete legislative intent because legislative bill files were not retained systematically by the General Assembly’s Standing Committees or the Department of Legislative Reference (now known as the Department of Legislative Services) until 1975. Resources useful in determining the purpose of pre-1975 legislative action are therefore limited to selected committee bill files (which do not exist for the ERA), the Legislative Council Reports to the General Assembly for 1941-1976 (which do not contain reference to the ERA), task force reports, and archival newspaper accounts published during the period. Dep’t of Legislative Serv., Md. Gen. Assembly, Legislative History Resources, available at http://www.dls.state.md.us/side_pgs/ library_info/library_legislative_history.html (20 February 2007). We were unable to locate any formal legislative documents created contemporaneous with consideration and promulgation of the Maryland ERA that indicate the General Assembly’s overriding purpose in passing the amendment. We were able to locate, however, extrinsic sources created at or about the time of the pendency of the proposed amendment and its promulgation that suggest that the intended scope of Article 46 was to prevent discrimination between men and women as classes.¹⁷

In the time surrounding the promulgation of Article 46, for example, Governor Marvin Mandel created a commission designed to study the amendment’s post-implementation affects. One of the Commission’s stated purposes was to examine Maryland laws that, while not facially discriminatory, drew classifications that discriminated in their application on the basis of sex:

Laws While Not Facially Sexually Discriminatory are Sexually Discriminatory in their Application or Effect: The Commission had as a precedent the considerable body of federal and state law which has declared that laws which are unoffensive facially are nevertheless racially discriminatory in their application. An example is the Supreme Court decision which outlaws literacy tests because they disproportionately exclude racial minorities. The Commission, therefore sought to identify laws, practices and procedures which in application has a disproportionately adverse affect on the sex [ (women) ] which has traditionally been victim of discrimination.

Governor’s Comm’n to Study Implementation of the Equal Rights Amendment, Final Report to the Governor 11 (1979).

In addition to documents originating from executive agencies created to study the effects of the newly passed equal rights amendment, various newspaper accounts from the period of time surrounding the 1972 electoral vote on Article 46 shed light on the intended scope of the proposed amendment. On Monday, 23 October 1972, the Washington Post published a staff-written compendium entitled Maryland Voters to Decide on Constitutional Changes, which described the various proposed amendments to the Maryland Constitution. According to the article, the

amendment, sponsored by a majority of the legislators, would be effective immediately with referendum approval and would, at the least, place the state Constitution in agreement with the U.S. Constitution in assuring equal rights for men and women.

This amendment is often referred to as a “women’s rights” measure, but it also would assure men that they could not be discriminated against because of their sex.

This amendment and the pending amendment to the U.S. Constitution are likely eventually to have a far-reaching impact on court decisions in the areas of family and domestic relations laws dealing with such matters as child custody, alimony and paternity cases.

Douglas Watson, Maryland Voters to Decide on Constitutional Changes, Wash. Post, 23 October 1972, at B4 (emphasis added); see also 18 Referendum Issues Confront Voters, The News Am., 24 October 1972, at 3-A (“The amendment is often referred to as a ‘women’s rights’ measure, but it also would assure men that they could not be discriminated against because of their sex.”); Barry C. Rascovar, Feminists find new foes of ballot question, Balt. Sun, 31 October 1972, at C24 (describing the lack of male opposition to the women’s liberation movement’s efforts to pass the Maryland ERA). While these are but a few examples of the newspaper accounts originating around the time the ERA was ratified by the Maryland voters, they represent accurately the bulk of the articles of the time on that subject, and reinforce that the primary purpose of the ERA was to eliminate discrimination as between men and women as a class.

Because the 1972 General Assembly considered in tandem the proposed federal and Maryland amendments, we find instructive also the objectives revealed by the legislative history of the federal initiative. Introduced originally in 1923 by the National Women’s Party, the proposed federal amendment was introduced at every legislative session during the mid-20th century. Renee Feinberg, the Equal Rights Amendment 16 (1986). It was not until 1972 that the proposed federal amendment, introduced to the 92nd Congress as House Joint Resolution (HJR) No. 208 by Representative Martha W. Griffiths (Michigan) and propelled significantly by the women’s rights movement occurring during that time, passed Congress by an overwhelming majority. Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & L. 113, 116 (1997).

In the House of Representatives, for example, there was much discussion of the intended scope of the proposed federal amendment. During a hearing before the House Committee on Rules, in requesting that HJR 208 be considered by The Committee of the Whole of the House on the State of the Union, Representative Thomas Phillip “Tip” O’Neill, Jr. (Dem., Massachusetts), then a member of the Committee on Rules, stated:

As a group, women have been victims of wide discrimination. In many States they are denied educational opportunities equal to those for men. In some States they are not allowed to manage their own property and a wife has fewer property rights.

Our legal system currently contains the vestiges of a variety of ancient common law principles which discriminate unfairly against women. This legislation would clarify the intent of the Congress that all irrational discrimination on the basis of sex be eliminated.

117 Congr. Rec. 35289 (daily ed. 6 October 1971) (statement of Rep. O’Neill). During that same hearing, Representative John B. Anderson (Rep., Illinois) commented:

Indeed, we are being called upon today to do the chivalrous thing—to redress a wrong out of fairness and respect for women. We are being called upon once and for all to make women equal under the law of the land—remove the last vestiges of their second-class citizenship from the books.

117 Congr. Rec. 35290 (daily ed. 6 October 1971) (statement of Rep. Anderson).

During the floor debate in the House, in opposing the addition of the Wiggins Amendment¹⁸ to the proposed ERA, it was stated by Representative Herman Badillo (Dem., New York):

It is clear that there is flagrant discrimination against women in this country—in employment opportunities, in the ownership of private property, in education, in a variety of Federal benefits such as social security and retirement and in numerous other areas of American society. This discrimination exists at all levels—Federal, State, and local and in both the public and private sector.

Although some advances have been made in the past, there is still much to be done and meaningful and effective steps must be taken to insure that women enjoy the same rights and privileges which are now generally available to men. Existing constitutional provisions and various court decisions have failed to provide equal rights for women and we cannot depend on piecemeal legislative measures to achieve this goal. In order to avoid any undue delays or possible erroneous interpretations, a comprehensive effort is required and I believe a constitutional amendment is the most appropriate and effective device for securing equal rights for all citizens, regardless of sex.

117 Congr. Rec. 3580 (daily ed. 12 October 1971) (statement of Rep. Badillo). Many comments of similar substance appear throughout the discussion in the House, regardless of whether a particular Representative was speaking in favor of or in opposition to the Wiggins Amendment.

The Senate debate concerning the proposed equal rights amendment contains sentiments consistent with that of the House. When discussing the issue on 22 March 1972, for example, Senator Charles H. Percy (Rep., Illinois) stated:

Even among the [proposed amendment’s] opponents, there seems to be little question but that tradition and law have worked together to relegate women to an inferior status in our society. In many cases this has been intentional, based on an archaic precept that women, for physiological or functional reasons, are inferior. This concept has lead to the implementation of laws that prohibit [among other things] women from engaging in certain businesses, managing their own properties and finances, entering into legal contracts, holding jobs which they are deemed incapable of performing, actively competing in public and private educational institutions for a quality education, and serving on a jury.

118 Congr. Rec. 9595 (daily ed. 22 March 1972) (statements of Sen. Percy). Senator Percy concluded his statements by quoting Susan B. Anthony and articulating that

[n]either does the equal rights amendment lessen or demean the importance of women as wives, mothers, and mainstays of the home. Equality does not imply sameness. While the family structure is at the heart of our society and this legislation does nothing to disrupt that notion, we must recognize that women of today are different, they are aware of and willing to accept their responsibilities as citizens in a modern society and ought to be free to accept those responsibilities much as they are free to remain in the home if that is their choice.

Today we will truly acknowledge that equality can no longer be legally conditioned upon sex, that women, as they assume new roles in our society, deserve as a matter of law equal treatment under the law.

Id. at 9596.

Speaking directly on the point of the proposed amendment and its effects on marriage between members of the same sex, it was contended by Senator Birch Evans Bayh II (Dem., Indiana) during the Senate debate that

[t]he equal rights amendment would not prohibit a State from saying that the institution of marriage would be prohibited to men partners. It would not prohibit a State from saying the institution of marriage would be prohibited to women partners. All it says is that if a State legislature makes a judgment that it is wrong for a man to marry a man, then it must say it is wrong for a woman to marry a woman-or if a State says it is wrong for a woman to marry a woman, then it must say that it is wrong for a man to marry a man.

118 Congr. Ree. 9881 (daily ed. 21 March 1972) (statements of Sen. Bayh).

B. Maryland precedent interpreting generally Article 46 indicates that the ERA was intended to combat discrimination between men and women as classes.

This Court has had the opportunity on several occasions to examine the historical underpinnings of the ERA. Since the passage, ratification, and promulgation of Article 46 in 1972, our applications of the ERA indicate that its primary purpose was to remedy the long history of subordination of women in this country, and to place men and women on equal ground as pertains to the enjoyment of basic legal rights under the law.

In virtually every case where this Court had the occasion to consider Article 46, the challenged classification drew clear lines between men and women as classes. In Burning Tree I, for example, the primary question before the Court was whether deferred State real property tax assessments given to a private country club that, according to the club’s bylaws, expressly prohibited women from membership was violative of Article 46. 305 Md. at 58-59, 501 A.2d at 819-20.¹⁹ In route to concluding that such favorable treatment violated the Maryland Declaration of Rights, we discussed briefly the history and purpose of the ERA:

[t]hat 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.

Burning Tree I, 305 Md. at 63-64, 501 A.2d at 822 (citing Barbara A. Brown et al., The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971)).²⁰ We concluded that “the [ERA] 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.” Burning Tree I, 305 Md. at 64, 501 A.2d at 823 (emphasis added).²¹

Consistent with this underlying purpose of the ERA, we held in Rand v. Rand, 280 Md. 508, 515-16, 374 A.2d 900, 905 (1977), that the “ ‘broad, sweeping, mandatory language’ of the [ERA] is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the [ERA] in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classification.” (quoting Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882, 889 (1975)); see also Giffin v. Crane, 351 Md. 133, 151, 716 A.2d 1029, 1038 (1998). In Rand, we considered the validity of a judgment of the Court of Special Appeals allocating child support obligations based, for the most part, on the sex of the parents. Despite the common law rule at the time that a father primarily was responsible for support of children born during the marriage, Rand, 280 Md. at 510-11, 374 A.2d at 902 (internal citations omitted), we concluded that, in light of Article 46, sex was not a permissible factor in the determination of child support obligations as between the mother and father:

The common law rule is a vestige of the past; it cannot be reconciled with out commitment to equality of the sexes. Sex of the parent in matters of child support cannot be a factor in allocating this responsibility. Child support awards must be made on a sexless basis.

Rand, 280 Md. at 516, 374 A.2d at 905; cf. Boblitz v. Boblitz, 296 Md. 242, 245, 273, 462 A.2d 506, 507, 521 (1983) (abrogating the common law doctrine of inter-spousal immunity²² as a “vestige of the past” in “derogation of married women”). We thus determined that, after the promulgation of Article 46, as between men and women, men no longer as a class were the primary source of child support. Rather, both the mother and father fundamentally were responsible equally for the monetary support of their children born during the marriage.

Appellees turn to Giffin for the proposition that “sex is not, and cannot be, a factor in the enjoyment or the determination of legal rights.” 351 Md. at 148, 716 A.2d at 1036. As with the other cases relied on by Appellees, we conclude, upon reflection, that Giffin does not support their argument as mounted. In Giffin, the primary issue was whether the Court of Special Appeals was correct in concluding that the sex of each parent, relative to the sex of their children born during the marriage, was a permissible factor to be considered in the grant of child custody at the dissolution of the marriage. In that case, James M. Giffin and Donna L. Crane entered, upon their divorce, an agreement whereby Mr. Giffin was awarded physical custody of the couple’s two daughters. Giffin, 351 Md. at 135-36, 716 A.2d at 1030-31. The agreement provided for annual reviews by a disinterested mental health professional, at the request of the non-custodial parent, of the residential status of the children. Giffin, 351 Md. at 137, 716 A.2d at 1031. Ms. Crane requested in 1995 an annual review of the residential status of the children and, following an unfavorable recommendation by the health professional, filed in the Circuit Court for Montgomery County a petition for modification of custody. Giffin, 351 Md. at 138, 716 A.2d at 1032. The trial court granted the petition, holding that, even though both parents were otherwise qualified to care for the children, the daughters’ particular need for a female influence was a “necessary factor” in the court’s determination that the mother should be granted custody. Giffin, 351 Md. at 13-141, 716 A.2d at 1032-33. In other words, the determination of custody was based entirely on sex.

Viewing the reasoning of Giffin in its context, it is clear that the Court’s statement that “sex is not, and cannot be, a factor” related- to distinctions drawn between men and women as classes. See Giffin, 351 Md. at 149, 716 A.2d at 1037 (“[T]he equality between sexes demanded by the Maryland [ERA] focuses on ‘rights’ of individuals ‘under the law,’ which encompass all forms of privileges, immunities, benefits and responsibilities of citizens.”) (citing Burning Tree I, 305 Md. at 70, 501 A.2d at 825) (emphasis added). In other words, the grant of child custody no longer could be based on pre-conceived notions, based solely on the parents’ sex, concerning the care a certain parent was capable of providing.

Virtually every Maryland case applying Article 46 has dealt with situations where the distinction drawn by a particular governmental enaction or action singled-out for disparate treatment men and women as discrete classes. See, e.g., Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984) (invalidating a law that made it unlawful for any tavern, concert hall, or other place of variety entertainment to employ female sitters,²³ but which made no mention of males hired for the same purpose); Condore v. Prince George’s Co., 289 Md. 516, 425 A.2d 1011 (1981) (determining that the aspect of the common law of necessaries obligating a husband to provide for the wife’s necessities, regardless of the income of the parties, unconstitutionally burdened an entire class of citizens based on sex); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980) (holding unconstitutional the cause of action of criminal conversation ²⁴ that, at common law, was available only to a man); Kerr v. Kerr, 287 Md. 363, 412 A.2d 1001 (1980) (upholding provision of Maryland Constitution providing for imprisonment for failure to pay child support because it applied equally to men and women); accord Hofmann v. Hofmann, 50 Md. App. 240, 437 A.2d 247 (1981) (rejecting an ex-husband’s argument that the award of alimony payments to his ex-wife violated Article 46 on the basis that, unlike the payment of necessaries, the statute governing the award of alimony is sex-neutral such that either party to a marriage is entitled to an award of alimony if appropriate under the circumstances of the particular case).²⁵

Based on our precedents interpreting Article 46, we conclude that the Legislature’s and electorate’s ultimate goal in putting in place the Maryland ERA was to put men and women on equal ground, and to subject to closer scrutiny any governmental action which singled out for disparate treatment men or women as discrete classes. As we stated in Burning Tree I,

[t]he 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....

Burning Tree I, 305 Md. at 70, 501 A.2d at 825; see also Burning Tree I, 305 Md. at 65-66, 501 A.2d at 823-24 (“That the [ERA] is essentially limited in its scope to unequal treatment imposed by the law as between the sexes is clear from our cases.”).²⁶ Unless the statute under scrutiny grants, either on its face or in application,²⁷ rights to men or women as a class, to the exclusion of an entire subsection of similarly situated members of the opposite sex, the provisions of the ERA are not implicated and the statutory classification under review is subjected to rational basis scrutiny, unless there exists some other reason to apply heightened scrutiny.

Turning to the language of Family Law § 2-201, it becomes clear that, in light of the aforementioned purpose of the ERA, the marriage statute does not discriminate on the basis of sex in violation of Article 46. The limitations on marriage effected by Family Law § 2-201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct. A legislative enactment “should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation.” Massage Parlors, Inc. v. Mayor & City Council of Balt., 284 Md. 490, 494, 398 A.2d 52, 55 (1979) (quoting Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976)). To accept Appellees’ contention that Family Law § 2-201 discriminates on the basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assembly and the State’s voters who enacted and ratified, respectively, the amendment. In other words, it “stretch[es] the concept of gender discrimination to assert that [the marriage statute] applies to treatment of same-sex couples differently from opposite-sex couples.” Dean v. Dist. of Columbia, 653 A.2d 307, 363 n. 2 (D.C.1995) (Steadman, J., concurring).

C. Interpretations Given Equal Rights Amendments By Other Jurisdictions In Similar Situations.

Perhaps most persuasive here is the growing body of case law from foreign jurisdictions flatly rejecting the argument that statutes that limit marriage to unions between a man and woman discriminate impermissibly on the basis of sex. Rand, 280 Md. at 512, 374 A.2d at 903 (“Cases from other state jurisdictions interpreting the breadth and meaning of their equal rights amendments are instructive in ascertaining the reach of Maryland’s [ERA].”).

The Court of Appeals of Washington, in Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974), was one of the first appellate courts to weigh-in on same-sex marriage in light of the then-newly promulgated ERA. There, the court held that

[p]rior to adoption of the ERA, the proposition that women were to be accorded a position in the law inferior to that of men had a long history. Thus, in that context, the purpose of the ERA is to provide the legal protection, as between men and women, that apparently is missing from the state and federal Bills of Rights, and it is in light of that purpose that the language of the ERA must be construed. To accept the [same-sex couples’] contention that the ERA must be interpreted to prohibit statutes which refuse to permit same-sex marriages would be to subvert the purpose for which the ERA was enacted by expanding its scope beyond that which was undoubtedly intended by the majority of the citizens of this state who voted for the amendment.

Singer, 522 P.2d at 1194. The majority of federal and state courts called on to consider analogous legal challenges since then have disposed of equal rights challenges in a similar manner. See, e.g., In re Kandu, 315 B.R. 123 (Bankr. W.D.Wash.2004) (upholding the constitutionality of the federal Defense of Marriage Act (DOMA) and stating, “[t]here is no evidence, from the voluminous legislative history or otherwise, that DOMA’s purpose is to discriminate against men or women as a class. Accordingly, the marriage definition contained in DOMA does not classify according to gender.... ”); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 6 (2006) (“By limiting marriage to opposite-sex couples, [the State] is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and Men are treated alike-they are permitted to marry people of the opposite sex, but not people of their own sex.”); Andersen v. King Co., 158 Wash.2d 1, 138 P.3d 963, 987-89 (2006) (holding that the state DOMA does not discriminate on the basis of sex and cataloging the various cases from other jurisdictions interpreting their own equal rights amendments); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 186-87 (1971); but see Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *6 (Alaska Super.Ct. 27 February 1998), superceded by Alaska. Const. art. I, § 25 (amended 1999); Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 64 (1993) (plurality opinion) (determining that same-sex marriage statute drew a sex-based classification), abrogated by 1997 Haw. Sess. Law H.B. 117 § 2, at 1247 (“The Legislature shall have power to reserve marriage to opposite-sex couples.”).

The Supreme Court of Vermont, in Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999), despite holding unconstitutional the exclusion of same-sex couples from the various benefits and protections that accompany marriage, rejected the argument that a statute limiting marriages to those between a man and woman constitutes sex-based discrimination. As the Vermont court stated, “[t]he difficulty here is that the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.” Baker, 744 A.2d at 881 n. 13. Because there is no “discrete class subject to differential treatment,” according to the court’s analysis, the prohibition on same-sex marriage did not draw a sex-based classification.

D. Individuality of Rights Argument Presented by Appellees

Appellees counter the “equal application theory” by stating that the proper inquiry in this case is not whether Family Law § 2-201 singles out one sex or the other as a discrete class for disparate treatment. Rather, because constitutional rights are individual rights, the same-sex couples posit that this Court should examine how the legislative enactment affects individually each person seeking to marry. Appellees rely principally in support of this argument on Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the landmark U.S. Supreme Court equal protection case in which the Court held unconstitutional a Virginia miscegenation statute despite the fact that the statute “punish[ed] equally both the white and the Negro participants in an interracial marriage.” ²⁸ Loving, 388 U.S. at 8, 11-12, 87 S.Ct. at 1822, 1823, 18 L.Ed.2d 1010; see also McLaughlin v. Florida, 379 U.S. 184, 188, 85 S.Ct. 283, 286, 13 L.Ed.2d 222 (1964). The analogy to the present case is inapt.

We must concede at the outset that the mere equal application of a statute does not shield automatically a discriminatory statute from constitutional review under either the Equal Protection Clause of the Fourteenth Amendment, the equal protection provisions embodied in Article 24 of the Maryland Declaration of Rights,²⁹ or the ERA. See McLaughlin, 379 U.S. at 191, 85 S.Ct. at 288, 13 L.Ed.2d 222; Loving, 388 U.S. at 8, 87 S.Ct. at 1822, 18 L.Ed.2d 1010. By the same token, however, a statute does not become unconstitutional simply because, in some manner, it makes reference to race or sex. See Massage Parlors, Inc. v. Mayor & City Council of Balt., 284 Md. 490, 398 A.2d 52 (1979) (upholding the constitutionality, pursuant to Article 46, of a Baltimore City ordinance that prohibited massage parlors from providing treatment simultaneously to persons of the opposite sex in the same room, but declining to reach on procedural grounds a separate challenge to the constitutionality of a regulation promulgated pursuant to the ordinance that allegedly prohibited heterosexual massages as between the masseuse/masseur and client).

In Loving, the issue before the Court was the constitutionality of a Virginia statutory scheme prohibiting marriage between non-Caucasians and Caucasians, and providing for criminal penalties for violations. In support of the statute, the State of Virginia argued that, even though reference was made to race in determining who was entitled to marry, it punished equally both participants in the interracial marriage. Loving, 388 U.S. at 8, 87 S.Ct. at 1821, 18 L.Ed.2d 1010. The Supreme Court was able to see beyond the superficial neutrality of the legislative enactment, however, and determined that “[t]he fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.” Loving, 388 U.S. at 11, 87 S.Ct. at 1823, 18 L.Ed.2d 1010. Thus, the Court in Loving determined that, although the statute applied on its face equally to all races, the underlying purpose was to sustain White Supremacy and to subordinate African-Americans and other non-Caucasians as a class. The reasoning behind this conclusion was based, at least in part, on the fact that “[w]hile Virginia prohibits whites from marrying any nonwhite ..., Negroes, Orientals, and any other racial class may intermarry without statutory interference.” Loving, 388 U.S. at 11 n. 11, 87 S.Ct. at 1823 n. 11, 18 L.Ed.2d 1010.³⁰

“The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law ‘can be traced to a discriminatory purpose.’ ” Baker, 744 A.2d at 880 n. 13 (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979)). And while “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States,” Loving, 388 U.S. at 11, 87 S.Ct. at 1823, 18 L.Ed.2d 1010, the primary purpose behind Article 46 is to frustrate state action that separates men and women into discrete classes for disparate treatment as between the sexes. Absent some showing that Family Law § 2-201 was “designed to subordinate either men to women or women to men as a class,” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 11 (“This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there ... was in substance anti-black legislation.”), we find the analogy to Loving inapposite. See also, e.g., Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971) (determining that “Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination.”). Because there is no evidence in the record before us that the Legislature intended with Family Law § 2-201 to differentiate between men and women as classes on the basis of some misconception regarding gender roles in our society, we conclude that the ERA does not mandate that the State recognize same-sex marriage based on the analogy to Loving. See In re Kandu, 315 B.R. 123, 143 (Bankr.W.D.Wash.2004) (“There is no evidence, from the voluminous legislative history or otherwise, that DOMA’s purpose is to discriminate against men or women as a class.”); Andersen, 138 P.3d at 989; Baker v. Vermont, 744 A.2d at 880 n. 13 (concluding that the evidence on the record before the court did not “demonstrate that the authors of the marriage laws excluded same-sex couples because of incorrect and discriminatory assumptions about gender roles or anxiety about gender-role confusion”); Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1191-92 (1974) (“[There] is no analogous sexual classification involved in the instant case because appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one that may be entered into only by two persons who are members of the opposite sex.”), review denied, 84 Wash.2d 1008 (1974).³¹

II. Standards of Constitutional Review for Article 24 Challenges based on the Concepts of Substantive Due Process and Equal Protection.

In addition to Appellees’ claim that Family Law § 2-201 discriminates on the basis of sex in violation of Article 46, the same-sex couples seeking to marry challenged Family Law § 2-201 as violative of Article 24 of the Maryland Declaration of Rights.³² Appellees’ Article 24 challenge has three facets: (1) Family Law § 2-201 should be subject to strict scrutiny under principles of equal protection³³ because it discriminates on the basis of sexual orientation, a classification that the Appellees claim is suspect or quasi-suspect; (2) Article 24 mandates that strict scrutiny be applied to Family Law § 2-201 because the statute prevents same-sex couples from exercising their fundamental rights to marry while allowing, at the same time, opposite-sex couples to do so; and (3) the statute burdens unconstitutionally the exercise of the same-sex couples’ fundamental due process rights to marry.

Before proceeding, we pause to reiterate the three levels of constitutional scrutiny employed in our jurisprudence when a legislative enactment is challenged under either the due process or equal protection concepts embedded in Article 24. As we explained in Waldron, “[t]he top tier of [constitutional] review contemplates that when a statute creates a distinction based upon clearly ‘suspect’³⁴ criteria, or when that enactment infringes upon personal rights or interests deemed to be ‘fundamental,’ then the legislative product must withstand a rigorous, ‘strict scrutiny.’” 289 Md. at 705-06, 426 A.2d at 941; Hornbeck, 295 Md. at 641, 458 A.2d at 781; Wheeler v. State, 281 Md. 593, 601, 380 A.2d 1052, 1057 (1977) (“Equal protection analysis requires strict scrutiny of a legislative classification when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.”). When utilizing this most-demanding standard of constitutional review, we deem unconstitutional a challenged legislative classification unless the distinction formed by it is “necessary to promote a compelling governmental interest.” Hornbeck, 295 Md. at 641, 458 A.2d at 781; Goodsell, 284 Md. at 286, 396 A.2d at 1037 (quoting Wheeler, 281 Md. at 601, 380 A.2d at 1057); see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). In other words, the statute must be justified by a compelling state interest, and drawn sufficiently narrowly that it is the least restrictive means for accomplishing that end. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-88, 36 L.Ed.2d 16 (1973). To no one’s great surprise, classifications subject to strict scrutiny rarely survive the legal glare. Hargrove v. Bd. of Trustees of Md. Retirement Sys., 310 Md. 406, 428, 529 A.2d 1372, 1383 (1987) (explaining that the constitutionality of a particular classification often depends on the level of review under which it is analyzed because a statute subject to strict scrutiny is “nearly always struck down under an analysis that [has historically been] ‘strict in theory and fatal in fact’ ”) (quoting Waldron, 289 Md. at 707-08, 426 A.2d at 942 (citations omitted)); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 317-27, 96 S.Ct. 2562, 2568-73, 49 L.Ed.2d 520 (1976) (Marshall, J. Dissenting).

In contrast, we generally employ the least exacting and most deferential standard of constitutional review when the legislative action under review neither interferes significantly³⁵ with a fundamental right nor implicates a suspect classification. Under this “rational basis” level of scrutiny, the classification will pass constitutional muster so long as it is “rationally related to a legitimate governmental interest.” Murphy, 325 Md. at 355-56, 601 A.2d at 108;³⁶ City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976) (“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.”). In other words, we will uphold the statute under rational basis review “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [governmental] actions were irrational.” Id. (citations omitted). Statutes reviewed pursuant to this level of scrutiny are presumed constitutional, “and will be invalidated only if the classification is clearly arbitrary.” Murphy, 325 Md. at 356, 601 A.2d at 108; Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178, 185 (1985) (holding that a statute reviewed under the “rational basis” test “enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary”); Waldron, 289 Md. at 707, 426 A.2d at 942 (holding that a statute will be upheld generally unless the classification is “wholly irrelevant to the achievement of the State’s objective”) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961) and McDonald v. Bd. of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969)). “[A] classification [subject to rational basis review] having some reasonable basis need not be made with mathematical nicety and may result in some inequality” so long as the state can produce any conceivable “state of facts” to justify the distinction. Whiting-Turner, 304 Md. at 352, 499 A.2d at 185; City of New Orleans, 427 U.S. at 303, 96 S.Ct. at 2517, 49 L.Ed.2d 511 (“Matronal distinctions may be made with substantially less than mathematical exactitude.”); Baker v. Nelson, 191 N.W.2d at 187 (“ ‘Abstract symmetry’ is not demanded by the Fourteenth Amendment.”). A statute subject to rational review often passes constitutional muster. Hargrove, 310 Md. at 428, 529 A.2d at 1383 (explaining that legislation subject to rational basis review almost always has received “minimal scrutiny in theory and virtually none in fact”) (quoting Waldron, 289 Md. at 707-08, 426 A.2d at 942 (citations omitted)).

A third level of review has arisen to leaven the rigid two-tiered constitutional framework by which courts review the constitutionality of government action. See Waldron, 289 Md. at 708-10, 426 A.2d at 942-44. A “heightened” level of scrutiny, otherwise known as “intermediate scrutiny,” is triggered when the challenged action creates a classification “which ha[s] been subjected to a higher degree of scrutiny than the traditional and deferential rational basis test, but which ha[s] not [yet] been deemed to involve suspect classes or fundamental rights.” Murphy, 325 Md. at 357-60, 601 A.2d at 109-11 (explaining the Supreme Court’s evolving application of “heightened scrutiny” or “rational basis with bite” to certain “intermediate” classifications);³⁷ Hargrove, 310 Md. at 428, 529 A.2d at 1383 (explaining the evolution of the traditional two-tiered approach into the current three-tiered constitutional framework); Waldron, 289 Md. at 709-11, 426 A.2d at 943-44 (explaining the Supreme Court’s treatment of sex-based classifications as “an active review of legislation not implicating rights previously determined to be ‘fundamental’ or involving classifications held to be ‘suspect.’ ”).³⁸ This middle-tier scrutiny may be implicated to review a “quasi-suspect” classification. City of Cleburne, 473 U.S. at 440-42, 105 S.Ct. at 3254-55, 87 L.Ed.2d 313. In order to survive this intermediate level of scrutiny, the statute in question “must serve important governmental objectives and must be substantially related to the achievement of those objectives.” Murphy, 325 Md. at 358, 601 A.2d at 110 (quoting Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976)); Thomas v. Dep’t of Labor, Licensing, & Regulation, 170 Md.App. 650, 668-69, 908 A.2d 99, 109-10 (2006).

III. Equal Protection under Article 24 of the Declaration of Rights

A. A Statute That Discriminates on the Basis of Sexual Orientation Does Not Trigger Strict or Heightened Scrutiny.

While Family Law § 2-201 does not draw a distinction based on sex, the legislation does differentiate implicitly on the basis of sexual preference. “Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage.” Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 11. See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“While it is true that the law [making it criminal for two consenting adults to engage in homosexual sodomy in the privacy of their own home] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the statute] is targeted at more than conduct. It is instead directed toward gay persons as a class.”) (O’Connor, J., concurring). That Family Law § 2-201 draws a distinction based on sexual orientation is undisputed. The actual controversy here, therefore, is what level of constitutional scrutiny should be applied to a statute that treats citizens differently on that basis (i.e., whether sexual orientation constitutes a suspect or quasi-suspect class, thereby triggering one of the heightened levels of scrutiny iterated above). Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 11. We find that sexual orientation is neither a suspect nor quasi-suspect class, and Family Law § 2-201 therefore is subject to rational basis review. We explain.

There is no brightline diagnostic, annunciated by either this Court or the U.S. Supreme Court, by which a suspect or quasi-suspect class may be recognized readily. There are, however, several indicia of suspect or quasi-suspect classes that have been used in Supreme Court cases to determine whether a legislative classification warrants a more exacting constitutional analysis than that provided by rational basis review. These factors include: (1) whether the group of people disadvantaged by a statute display a readily-recognizable, “obvious, immutable, or distinguishing characteristics ...”³⁹ that define the group as a “discrete and insular minor-it[y];”⁴⁰ (2) whether the impacted group is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process;”⁴¹ and (3) whether the class of people singled out is “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities [to contribute meaningfully to society].”⁴² We have identified a similar, although not as comprehensive, set of criteria by which we may analyze allegedly new suspect classes. Waldron, 289 Md. at 706, 426 A.2d at 941-42 (describing a suspect class as “a category of people who have ‘experienced a history of purposeful unequal treatment’ or been ‘subjected to unique disabilities on the basis of stereotypical characteristics not truly indicative of their abilities.’ ”) (quoting Mass. Bd. of Retirement, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d 520). Because Article 24 is construed at least to the same extent as the Fourteenth Amendment, Murphy, 325 Md. at 354, 601 A.2d at 108; Waldron, 289 Md. at 705, 426 A.2d at 941 (citations omitted); Hornbeck v. Somerset County Bd. of Educ., 295 Md. at 640, 458 A.2d at 781, we find useful in our analysis those additional criteria used by the Supreme Court in assessing claims of a new suspect or quasi-suspect classification.

Although the Supreme Court has characterized repeatedly as suspect classes distinctions based on race,⁴³ alienage,⁴⁴ and national origin,⁴⁵ the Court has not addressed expressly whether sexual orientation is considered suspect, thereby implicating strict or heightened scrutiny. See Romer v. Evans, 517 U.S. 620, 631-32, 116 S.Ct. 1620, 1627-28, 134 L.Ed.2d 855 (1996) (stating that “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end,” and invalidating the statute at issue under rational basis review); In re Kandu, 315 B.R. at 144 (explaining that the Supreme Court, in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), did not address whether the Texas statute making it a crime to engage in consensual same-sex intimate conduct drew a suspect or quasi-suspect classification, but rather invalidated the Texas statute on the basis that it did not reasonably further a legitimate government interest); Andersen, 138 P.3d at 976 (same). The closest any Justice has come to suggesting a view on the issue is found in Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014, 105 S.Ct. 1373, 1376-77, 84 L.Ed.2d 392 (1985) (Brennan, J., dissenting from the denial of certiorari), where Justice Brennan stated in his dissent to the denial of certiorari that “homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is ‘likely ... to reflect deep-seated prejudice rather than ... rationality.”

The majority of other courts, both federal and state, that have addressed the issue hold that gay, lesbian, and bisexual persons neither are members of suspect nor quasi-suspect classifications. See, e.g., Selland v. Perry, 905 F.Supp. 260 (D.Md.1995), aff'd, 100 F.3d 950 (4th Cir.1996) (applying Maryland law in order to uphold the constitutionality of the military’s “Don’t Ask, Don’t Tell” provisions regarding homosexuality, and determining that equal protection does not mandate strict scrutiny); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir.1990) (“[H]omosexuals are not a suspect or quasi-suspect classification.”); In re Kandu, 315 B.R. at 143-44 (following the Ninth Circuit’s decision in High Tech Gays, and determining that the Lawrence Court, while “indicating a shift in the Supreme Court’s treatment of same-sex couples,” did not declare same-sex couples a suspect or quasi-suspect class for the purposes of equal protection analysis) (quoting Lawrence, 539 U.S. at 579-81, 123 S.Ct. at 2485, 156 L.Ed.2d 508 (O’Connor, J., concurring) (applying a rational basis standard of constitutional review to the Texas sodomy statute prohibiting sexual conduct between two persons of the same sex)); Wilson v. Ake, 354 F.Supp.2d 1298, 1307 (2005) (“[Hjomosexuality is not a suspect class that would require subjecting [the Florida Defense of Marriage Act] to strict scrutiny under the Equal Protection Clause.”) (quoting Lofton v. Sec. of Dep’t of Children and Fam. Servs., 358 F.3d 804, 818 (2004) (holding post-Lawrence that homosexuality is not a suspect class), cert. denied, 543 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005)); Andersen, 138 P.3d at 973-76 (explaining post -Lawrence that sexual orientation is not a suspect class and distinguishing the cases cited by the same-sex couples); Singer, 522 P.2d at 1196.⁴⁶ We shall join those courts and hold that sexual orientation has not come of age as a suspect or quasi-suspect classification.⁴⁷

1. While there is a history of purposeful unequal treatment of gay and lesbian persons, and homosexual persons are subject to unique disabilities not truly indicative of their abilities to contribute to society, we shall not hold that gay and lesbian persons are so politically powerless that they constitute a suspect class.

Homosexual persons have been the object of societal prejudice by private actors as well as by the judicial and legislative branches of federal and state governments. Gay, lesbian, and bisexual persons likewise have been subject to unique disabilities not truly indicative of their abilities to contribute meaningfully to society. For a significant period of American history, homosexual persons generally were not the object of regulatory focus because sexual and gender orientations differing from “traditional” sexual preferences were not well conceptualized by the public until after the Civil War. William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 1 (1999) (recounting in great detail the genesis of the treatment of gay, lesbian, bisexual, and transgender persons in American society); Lawrence, 539 U.S. at 568-69, 123 S.Ct. at 2478-79, 156 L.Ed.2d 508 (describing succinctly the early history of laws directed at homosexual conduct, and explaining that the “concept of the homosexual as a distinct category of person did not emerge until the late 19th century”) (citations omitted). Before 1900, regulation of gay, lesbian, bisexual, and transgender persons focused on the criminalization of “gender inversion,” which included, but was not limited to, cross-dressing, prostitution, obscenity, public lewdness, and indecent exposure. Eskridge, supra, at 13-14, 27-37. Many citizens viewed people who cross-dressed or otherwise deviated from the “traditional” gender roles as heretics, degenerates, or psychopaths. Id. at 17-18.

By the turn of the twentieth century, most medical professionals accepted the “degeneracy” theory of homosexuality. Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va.L.Rev. 1551, 1555 (1993). This theory was based primarily on the notion that homosexuality was an inheritable genetic trait, and that the “disease” could be treated through “aversion therapy, castration, and other radical ‘cures,’ rather than decriminalization.” Id. at 1555, 1555 n. 21 (citing John D’Emilio, Sexual Politics, Sexual Communities 15 (1983); David F. Greenberg, The Construction of Homosexuality 397-433(1988); Jonathon, Katz, Gay American History 129-207 (rev. ed 1992)); see Eskridge, Jr., supra, at 50 (quoting U.S. Army Surgeon General, “Disposition of Overt Cases of Homosexuality,” Army Bulletin No. 66, April 1943, pt. E, at 83 (1943) (explaining that rather than court-martial those who engage in single-sex sodomy, homosexual persons should be “reclaimed” through medical treatment)). Those who spoke out publicly in favor of gay and lesbian rights during the “Red Scare” of the late 1910s to early 1920s were branded as communists, denaturalized, and deported to the Soviet Union. Cain, supra, at 1555-56. In the 1950s, the Senate Investigations Subcommittee of the Committee on Expenditures in the Executive Department found that “homosexuals and other sex perverts” were unsuitable for employment by the federal government primarily because “[t]hose who engage[d] in overt acts of perversion lack[ed] the emotional stability of normal persons. In addition there [was, according to the Subcommittee,] an abundance of evidence to sustain the conclusion that indulgence in acts of sex[ual] perversion weakenfed] the moral fiber of an individual to a degree that he [was] not suitable for a position of responsibility.” Cain, supra, at 1565-66 (citing Subcomm. for the Comm’n of Expenditure in the Exec. Dep’t, Interimreport on the Employment of Homosexuals and other Sex Perverts in Government, S. Doc. No. 241, 81st Cong., 2d Sess. 4 (1950)) (hereinafter “Interim Report on the Employment of Homosexuals”). Homosexuals were furthermore deemed security risks because of their susceptibility to blackmail. Cain, supra, at 1566 (citing Interim Report on the Employment of Homosexuals, at 3).

The 1946 elections saw the beginning of a national homosexual “Kulturkampf,” a period spanning from 1946 to 1961, in which it is believed that as many as a million gay and lesbian persons were prosecuted criminally under statutes aimed at prohibiting consensual same-sex adult intercourse (both public and private), kissing, holding hands, or other forms of “public lewdness.” Eskridge, Jr., supra, at 60-67. Some states, namely New Jersey, Florida, California, and New York, prohibited establishments with state-issued liquor licenses from knowingly serving alcohol to homosexual persons. Eskridge, Jr., supra, at 78-80. In the wake of Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and until the Supreme Court’s decision in Lawrence v. Texas, it was not unconstitutional under the Fourteenth Amendment for a state to enact legislation making it a crime for two consenting adults of the same sex to engage in sexual conduct in the privacy of their home. See Lawrence, 539 U.S. at 575, 123 S.Ct. at 2482, 156 L.Ed.2d 508 (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”).

As stated by the Surgeon General,

[O]ur culture often stigmatizes homosexual behavior, identity and relationships. These anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health, including a greater incidence of depression and suicide, lower self-acceptance and a greater likelihood of hiding sexual orientation.... In their extreme form, these negative attitudes lead to [anti-gay] violence. Averaged over two dozen studies, 80 percent of gay men and lesbians had experienced verbal or physical harassment on the basis of their orientation, 45 percent had been threatened with violence, and 17 percent had experienced a physical attack.

U.S. Dep’t of Health & Human Servs., The Surgeon General’s Call to Action to Promote Sexual Health and Responsible Sexual Behavior (9 July 2001) (letter from the Surgeon General), at http://www.surgeongeneral.gov/library/sexualhealth/call. html.

It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society. The State, furthermore, has not provided evidence to the contrary in the present case, arguing instead that, because every other jurisdiction, both before and after Lawrence, rejected the notion that homosexuals are a suspect class, so should Maryland. While other jurisdictions’ dispositions of equal protection claims similar to the one advanced in the present case are persuasive and reinforce our own analysis, we do not accept them simply as conclusive. This Court nevertheless finds that, in light of the other indicia used by this Court and the Supreme Court in addressing equal protection claims, a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation.⁴⁸ We instead view the circumstances as a whole in order to determine whether sexual orientation constitutes a protected classification meriting a more exacting level of constitutional review.

In spite of the unequal treatment suffered possibly by Appellees and certainly a substantial portion of other citizens similarly situated, we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to “extraordinary protection from the majoritarian political process.” To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian, and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of government.⁴⁹ Maryland statutes protect against discrimination based on sexual orientation in several areas of the law, including public accommodation,⁵⁰ employment,⁵¹ housing,⁵² and education.⁵³

In addition to the statutory framework in place, several state and local regulations prohibit discrimination on the basis of sexual orientation.⁵⁴ See, e.g., Md.Code (2004), Health Occ. § 19-311(6) (prohibiting sexual orientation discrimination by social workers); Md.Code (2003), art. 29 §§ 1-107, 3-102(h)(l) (prohibiting sexual orientation discrimination on the part of the Washington Suburban Sanitary Commission, and prohibiting the use of discriminatory employment practices by any contractor engaged by the Commission); Md. Regs.Code tit. 1 §§ 04.07.04(A)(7)(d)(viii), 04.07.05(A)(2)(p) (2004) (prohibiting discrimination on the basis of sexual orientation in the administration of the Residential Child Care Program); Md. Regs. Code tit. 1 §§ 05.03.09(A)(2), 05.03.15(C)(2) (prohibiting the consideration of either the adoptive parent’s or adoptive child’s sexual orientation during the application or placement stage of a private adoption); Md. Regs.Code tit. 5 § 04.11.18(A) (2005) (prohibiting discrimination on the basis of sexual orientation by entities involved with, or contractors engaged by, the Special Housing Opportunities Program); Md. Regs.Code tit. 10 § 18.06.03(A)(6) (2004) (providing that it is improper for health care providers rendering services under the AIDS Drug Assistance Program to consider sexual orientation when determining whether to provide such services); Md. Regs. Code tit. 10 § 42.03.03(B)(5) (2005) (prohibiting discrimination on the basis of sexual orientation by licensed social workers); Md. Regs.Code tit. 10 § 10.43.03(D)(5) (2005) (same, in the context of chiropractors and chiropractic assistants licensed to practice in Maryland); Md. Regs.Code tit. 14 § 29.04.09(C)(1) (2004) (forbidding discrimination in the administration of the Maryland Heritage Areas Loan Program).

Evolutionary legal developments highlighting changing views toward gay, lesbian, bisexual, and transgender persons are not limited to statutory and regulatory enactments. In terms of Supreme Court jurisprudence, one of the most important cases is Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). This case dealt with a Colorado voter-adopted amendment to the State’s Constitution that “preclude[d] all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationship.’ ” Romer, 517 U.S. at 620, 116 S.Ct. at 1621-22, 134 L.Ed.2d 855. In other words, the amendment sought to preclude the Colorado legislature from enacting any statute that provided for protection from discrimination on the basis of sexual orientation. The Court struck down the statute as unconstitutional, under rational basis review, as a violation of the Fourteenth Amendment. In Lawrence, 539 U.S. at 565, 560, 123 S.Ct. at 2476, 2475, 156 L.Ed.2d 508, the Court overturned Bowers v. Hardwick and concluded that the Fourteenth Amendment to the U.S. Constitution forbids the criminalization of sexual conduct by two persons of the same sex in the privacy of their own homes. In neither Romer nor Lawrence, however, did the Supreme Court state that homosexual persons constituted a suspect class. The Court instead applied rational basis review to both of the statutes at issue.

The body of Maryland appellate opinions addressed to the rights and interests of gay, lesbian, bisexual, and transgender persons is substantial. Boswell v. Boswell, 352 Md. 204, 237-238, 721 A.2d 662, 678 (1998) (holding that, in the context of visitation rights of a non-custodial parent, “[this Court] make[s] no distinctions as to the sexual preference of the noncustodial parent whose visitation is being challenged. The only relevance that a parent’s sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children’s emotional and/or physical well-being”); State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004) (extending battered spouse syndrome to abusive situations within same-sex couples); North v. North, 102 Md.App. 1, 12, 648 A.2d 1025, 1031 (1994) (deciding that the sexual orientation of a non-custodial parent is not a proper basis for the denial of visitation rights, and placing emphasis on whether such visitation rights were in the “best interests of the child” and whether there was a showing of actual harm to the child by granting visitation, rather than focusing on the “perceived harms” to the child of exposing it to a homosexual lifestyle); Gestl v. Frederick, 133 Md.App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000) (determining that the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by the biological mother’s former same-sex partner under the Uniform Child Custody Jurisdiction Act); Lapides v. Trabbic, 134 Md.App. 51, 54, 758 A.2d 1114, 1115 (2000) (rejecting a father’s tort cause of action against his ex-wife’s same-sex domestic partner on the basis that she interfered with and caused harm to his relationship with his daughter to which he had joint custody); S.F. v. M.D., 132 Md.App. 99, 102, 110, 751 A.2d 9, 10, 14-15 (2000) (holding that the former domestic partner of a biological mother has standing to seek visitation of a child conceived by in vitro fertilization performed during the tenure of their partnership).⁵⁵

While gay, lesbian, and bisexual persons in recent history have been the target of unequal treatment in the private and public aspects of their lives, and have been subject to stereotyping in ways not indicative of their abilities, among other things, to work and raise a child, recent legislative and judicial trends toward reversing various forms of discrimination based on sexual orientation underscore an increasing political coming of age. The relevant decisions from other jurisdictions recognize this. Andersen, 138 P.3d at 974-75 (“The enactment of provisions providing increased protection to gay and lesbian individuals in [the State] shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendment [in Washington prohibiting discrimination on the basis of sexual orientation] is particularly significant.... We conclude that plaintiffs have not established that they satisfy the [political powerlessness] prong of the suspect classification test.”); see also High Tech Gays, 895 F.2d at 573-74 (concluding, independent of reliance on Bowers, that, “[w]hile we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria [for being a suspect or quasi-suspect classification],” and determining that “legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation though the passage of anti-discrimination legislation. Thus, homosexuals are not without political power ⁵⁶

2. Evidence that homosexuality is an immutable characteristic.

The term “immutability” defines a human characteristic that is determined “solely by the accident of birth,” Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 (explaining that “sex, like race and national origin, is an immutable characteristic [that is] determined solely by the accident of birth,” and that defines a particular group), or that the possessor is “powerless to escape or set aside.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S.Ct. 2733, 2784, 57 L.Ed.2d 750 (1978) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972)). See also Plyler v. Doe, 457 U.S. 202, 216-17 n. 14, 102 S.Ct. 2382, 2394-95 n. 14, 72 L.Ed.2d 786 (1982) (“Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”). Based on the scientific and sociological evidence currently available to the public, we are unable to take judicial notice that gay, lesbian, and bisexual persons display readily-recognizable, immutable characteristics that define the group such that they may be deemed a suspect class for purposes of determining the appropriate level of scrutiny to be accorded the statute in the present case.

Appellees rely on Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir.2000), overruled on other grounds by, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005), for the proposition that sexual orientation is a suspect classification because it is defined by a characteristic that people “should not be required to change because [it is] fundamental to ... individual identities or consciences.” The Ninth Circuit indeed held there that “[s]exual orientation and sexual identity are immutable; [and that] they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel, 225 F.3d at 1093 (indexing numerous studies that have concluded that sexual orientation is determined at an early age and engrained in an individual’s personality). Despite the Ninth Circuit’s conclusion in that ease that sexual orientation is an immutable characteristic, that court since has declared that homosexual persons do not constitute a suspect classification. See Andersen, 138 P.3d at 974 (citing Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.2003) (holding, pre-Lawrence, “homosexuals are not a suspect or quasi-suspect class, but are a definable group entitled to rational basis scrutiny for equal protection purposes”) (quoting High Tech Gays, 895 F.2d at 573-74)).

Beyond their reliance on Hemandez-Montiel and two Maryland cases that discuss, in the abstract, inherently suspect classifications and immutability, see Ehrlich v. Perez ex rel. Perez, 394 Md. 691, 718-19, 908 A.2d 1220, 1236-37 (2006) (discussing alienage as an inherently suspect classification); In re Heilig, 372 Md. 692, 697-710, 816 A.2d 68, 71-79 (2003) (discussing the concept of gender in the context of transsexuals and how, as medically possible, the outward and physical manifestations of gender may be changed), Appellees point neither to scientific nor sociological studies, which have withstood analysis for evidentiary admissibility, in support of an argument that sexual orientation is an immutable characteristic.⁵⁷

In the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic, and in light of the other indicia used by this Court and the Supreme Court in defining a suspect class, we decline on the record in the present case to recognize sexual orientation as an immutable trait and therefore a suspect or quasi-suspect classification. See Andersen, 138 P.3d at 974; In re Marriage Cases, 49 Cal.Rptr.3d 675, 714 (Cal.App.lst Dist.2006), review granted, 53 Cal.Rptr.3d 317, 149 P.3d 737 (2006). The majority of other jurisdictions that have addressed comparable equal protection challenges reviewed similar statutes under rational basis analysis. See In re Kandu, 315 B.R. at 143-44; Wilson, 354 F.Supp.2d at 1307; Lofton, 358 F.3d at 818, cert. denied, 543 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005); Andersen, 138 P.3d at 973-76; Singer, 522 P.2d at 1196.

IV. The Right to Same-Sex Marriage is Not so Deeply Rooted in the History and Tradition of this State or the Nation as a Whole Such That it Should be Deemed Fundamental.

Appellees contend next that Family Law § 2-201 is subject to strict scrutiny because it burdens significantly their fundamental right to marry guaranteed by the due process protections of Article 24. First defined federally by the Supreme Court in 1937, fundamental rights are those privileges and immunities that are “so rooted in the traditions and conscience of our people” that they are considered “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)); Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997) (defining fundamental rights as those privileges that are “objectively, ‘deeply rooted in this Nation’s history and tradition,’ ... and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ”) (quoting Palko, 302 U.S. at 325-26, 58 S.Ct. at 152, 82 L.Ed. 288); Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (defining fundamental rights as those liberty interests that are “deeply rooted in this Nation’s history and tradition”) (plurality opinion).

We employ a very similar definition for determining what constitutes a fundamental right for state constitutional analysis. Sites v. State, 300 Md. 702, 716, 481 A.2d 192, 199 (1984) (defining fundamental rights as those that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental or implicit in the concept of ordered liberty”); Waldron, 289 Md. at 715, 426 A.2d at 947 (characterizing the rights protected by Article 24 as “those recognized as vital to the history and traditions of the people of this State”); Samuels v. Tschechtelin, 135 Md.App. 483, 537, 763 A.2d 209, 238 (2000) (quoting Glucksberg, 521 U.S. at 720-21, 117 S.Ct. at 2268, 138 L.Ed.2d 772). In determining whether an asserted liberty interest constitutes a fundamental right, we look not to our “personal and private notions” of what is fundamental, but rather to the “traditions and [collective] conscience of our people.” Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). Our task in the present case, therefore, is to determine objectively whether the right to marry another person of the same sex is so deeply rooted in the history and tradition of this State, as well as the Nation as a whole, that “neither liberty nor justice would exist if it were sacrificed.” Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268, 138 L.Ed.2d 772.

A. The Right at Stake must be Clearly and Precisely Identified.

It is undisputed that the right to marry, in its most general sense, is a fundamental liberty interest that goes to the core of what the U.S. Supreme Court has called the right to “personal autonomy.” See, e.g., Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 2807, 120 L.Ed.2d 674 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). This right to personal privacy was recognized formally by the U.S. Supreme Court in Griswold where it struck down, as an intrusion upon the constitutionally protected right to marital privacy, a ban on the use of contraceptives by married heterosexual couples. The Court reasoned that there are zones of privacy created by the guarantees of the Bill of Rights that serve “as [a] protection against all government invasions ‘of the sanctity of a man’s home and the privacies of life.’ ” Griswold, 381 U.S. at 484, 85 S.Ct. at 1681, 14 L.Ed.2d 510 (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). Other rights considered fundamental under this general right to personal autonomy are those decisions relating to child-bearing,⁵⁸ child-rearing and education,⁵⁹ intimate association and sexual intimacy,⁶⁰ the right to use contraceptives,⁶¹ the right to refuse unwanted lifesaving medical treatment,⁶² and, as stated before, the right to marriage.⁶³ The rights to personal autonomy embrace just a few of the rights that the Supreme Court has deemed fundamental. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (the right to move from state to state); Kramer v. Union Free School Dist., 395 U.S. 621, 627, 89 S.Ct. 1886, 1889-90, 23 L.Ed.2d 583 (1969) (the right to vote); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (the right to equal access to appeal).

Determination of whether there is a fundamental right to enter into a same-sex marriage, however, does not end with a brief invocation of the cases outlining the importance of marriage generally and the other liberty interests that make up the fundamental rights panorama of personal autonomy. Before determining the fundamental nature of an asserted liberty interest, the right at stake should be defined precisely. Samuels, 135 Md.App. at 537, 763 A.2d at 238 (“[A]nalysis of an alleged substantive due process violation ‘must begin with careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ”) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) (in turn quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)); Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268, 138 L.Ed.2d 772 (“[W]e have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.”)(internal citations omitted)); see also Glucksberg, 521 U.S. at 722-26, 728, 117 S.Ct. at 2269, 138 L.Ed.2d 772 (stating that the asserted liberty interest at issue in the case was framed more properly as the “right to commit suicide with another’s assistance” rather than the broadly-stated “liberty to choose how to die” or the “right to choose a humane, dignified death,” and determining that there existed no fundamental right to assisted suicide even though the right to refuse lifesaving medical treatment was deeply rooted in our Nation’s history) (distinguishing Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-80, 110 S.Ct. 2841, 2851-52, 111 L.Ed.2d 224 (1990)); Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 207 (2006) (same); In re Marriage Cases, 49 Cal.Rptr.3d at 701 (holding that an asserted right must be “concrete and particularized, rather than abstract and general”) (citations omitted). Once the asserted liberty interest is identified clearly, we determine objectively whether it is deeply rooted in the traditions, history, and conscience of the people of Maryland and the Nation as a whole.

Appellees argue that we should not be concerned with whether the Court should recognize a new fundamental right to same-sex marriage, but instead should focus on whether the existing fundamental right to marriage should be extended to include same-sex couples. Specifically, Appellees seek a declaration that the right to marry encompasses the right to marry a person of one’s choosing without interference from the government, even if the other person is of the same sex. They argue further that, “in assessing history and tradition, the proper inquiry is what has historically been enjoyed (e.g., the right to marry), not who has historically enjoyed it (e.g., people in heterosexual relationships).” A substantially similar argument has been made to our peers in other jurisdictions in the course of confronting same-sex marriage challenges. See, e.g., Wilson v. Ake, 354 F.Supp.2d 1298, 1305 (M.D.Fla.2005) (“Plaintiffs argue that their right to marry someone of the same sex is a fundamental right that is guaranteed by the Fourteenth Amendment’s Due Process Clause.”); Standhardt v. Superior Court of State, 206 Ariz. 276, 77 P.3d 451, 458 (App.2003); Dean v. Dist. of Columbia, 653 A.2d 307, 333 (D.C.App.1995); Jones v. Hallaban, 501 S.W.2d 588, 590 (Ky. App.1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 186 (1971); Andersen, 138 P.3d at 976-79. Each of these appellate courts, when presented with the argument, rejected it. For the reasons stated here, we join those courts and hold that the issue is framed more properly in terms of whether the right to choose same-sex marriage is fundamental.

In support of their argument, Appellees rely principally on Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Edüd 1010 (1967) (holding that the fundamental right to marriage encompasses the right marry the person of one’s choosing, even if that person is of a different race); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); and, through reference to other cases that cite it, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 1113-14, 86 L.Ed. 1655 (1942). We find that, while these cases certainly establish generally the fundamental nature of the right to marry, they do not represent a compelling basis to extend the fundamental right to include same-sex marriage. All of the cases infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species. We explain.

Appellees rely on Loving for the proposition that, despite the long history of prohibition against interracial marriages, the Supreme Court declared in that case that the right to marry was constitutionally guaranteed to different-race couples just as it was available to single-race couples, Loving, 388 U.S. at 12, 87 S.Ct. at 1823, 18 L.Ed.2d 1010, thereby declaring that the proper inquiry in the case was whether the right itself had been historically enjoyed rather than who had historically enjoyed it. We disagree.

The basis for the Supreme Court’s decision as to the interracial couples’ due process challenge was that “[mjarriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Id. (emphasis added) (citing Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655 (“Marriage and procreation are fundamental to the very existence and survival of the race.”)) (emphasis added). As our peers on other courts have stated, “[wjhether the Court [in Skinner ] viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental. This is hardly surprising inasmuch as none of the United States sanctioned any other marriage configuration at the time.” Baehr, 852 P.2d at 56; Standhardt, 77 P.3d at 458 (stating that “[ijmplicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman,” and concluding that, “while Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the opposite sex.”); Dean, 653 A.2d at 332-33 (holding that the right to marriage is deemed fundamental because of its link to procreation).

Language of similar import appears throughout the Supreme Court’s jurisprudence establishing as fundamental the right to marry. The Court commented in Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888), that “[marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and society, without which there would be neither civilization nor progress.” In Zabloeki, the Supreme Court reasoned that “[i]t is not surprising that the decision to marry has been placed in the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of family in our society.” 434 U.S. at 386, 98 S.Ct. at 681, 54 L.Ed.2d 618 (upholding the fundamental right to marry for those in non-compliance with child support obligations). In the course of doing so, the Court explained in detail the genesis of the fundamental status accorded marriage:

Long ago, in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the Court characterized marriage as “the most important relation in life,” [125 U.S. at 205, 8 S.Ct. at 726, 31 L.Ed. 654], and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” [125 U.S. at 211, 8 S.Ct. at 729, 31 L.Ed. 654], In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, [262 U.S. at 399, 43 S.Ct. at 626, 67 L.Ed. 1042], and in Skinner v. Oklahoma ex rel. Williamson, supra, ... marriage was described as “fundamental to the very existence and survival of the race,” [316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655],

Zablocki, 434 U.S. at 384, 98 S.Ct. at 680, 54 L.Ed.2d 618; see also Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 56 (1993). In Boddie, 401 U.S. at 376, 381-82, 91 S.Ct. at 785, 788, 28 , the Supreme Court declared that “marriage involves interests of basic importance in our society.” 401 U.S. at 376, 91 S.Ct. at 785, 28 L.Ed.2d 113 (citing generally Skinner, Loving, and Meyer). In light of that fundamental nature of marriage, the Court invalidated a statute that authorized the State of Connecticut to deny access to the courts to indigent citizens seeking to obtain a divorce, solely because they were unable to pay the requisite court fees. Boddie, 401 U.S. at 381-82, 91 S.Ct. at 788, 28 L.Ed.2d 113. Thus, virtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman. Andersen, 138 P.3d at 978 (“Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing.”).

The one exception is Turner v. Safley. In that case, the Supreme Court struck down as unconstitutional a Missouri Division of Corrections regulation that precluded an inmate from marrying unless he or she received permission from the superintendent, and only upon a finding that there was a “compelling reason” for the marriage. Turner, 482 U.S. at 78, 107 S.Ct. at 2256-57, 96 L.Ed.2d 64. The term “compelling reason” was not defined by the regulation, but prison officials testified at trial that the only reason deemed compelling was the pregnancy of the woman to be married or the birth of a child out of wedlock. Turner, 482 U.S. at 82, 107 S.Ct. at 2258, 96 L.Ed.2d 64. The Court concluded that the fundamental right to marriage recognized in Zablocki applied to prison inmates just as it applied to non-incarcerated individuals. Turner, 482 U.S. at 95, 107 S.Ct. at 2265, 96 L.Ed.2d 64. Among several reasons given for application of Zablocki to the issues at bar was that “most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.” Turner, 482 U.S. at 96, 107 S.Ct. , 96 L.Ed.2d 64. The Court reasoned additionally that marriage often serves as a precondition to certain tangible and intangible benefits, including the legitimization of children born out of wedlock. Id. It is true that the reasons given in support of the fundamental right of inmates to marry were not linked in express terms to procreation and, indeed, some of the reasons given were wholly independent of procreation. Whatever the reasons given for granting to those couples the right to marry, however, it is clear that the Court was contemplating marriage between a man and woman when it declared unconstitutional the Missouri regulation. The case involved challenges by opposite sex couples, and a number, although not all, of the reasons given in support of the right to marry applied only to opposite sex couples, i.e., consummation of the marriage and legitimization of children born outside the marital relationship. Turner does not persuade us to frame the inquiry in the present case as Appellees wish. See Andersen, 138 P.3d at 979.⁶⁴

It is beyond doubt that the right to marry, in the abstract, is a fundamental right recognized by both the Federal and this State’s Constitutions. While we deem fundamental this latitudinously-stated right to marry, it is nevertheless a public institution that historically has been subject to the regulation and police powers of the State.⁶⁵ Henderson v. Henderson, 199 Md. 449, 458-59, 87 A.2d 403, 409 (1952) (“The State has the sovereign power to regulate marriages, and accordingly can determine who shall assume and who shall occupy the matrimonial relation within its borders.”);⁶⁶ see also Md.Code Ann. (1957, 2006 Repl.Vol.), Family Law Article, §§ 2-201 to 2-407, 2-409, 2-410 (delineating the requirements for a valid marriage in the State of Maryland) (unless otherwise noted, all references in this portion of the opinion are to the Family Law Article of the Annotated Code of Maryland).

In that vein, whether a particular person may marry often has depended on who historically has enjoyed the right. Indeed, the fundamental right to marry is not absolute. Under Maryland law, a minor may not marry if the minor is under the age of 15. Family Law § 2-301(c). If the child is 15 years old, he or she may not marry unless consent is given by a parent or guardian and the clerk issuing the marriage license is supplied with documentation that the female to be married is either pregnant or has given birth. Family Law § 2-301(b). If the child is 16 or 17 years of age, he or she may not marry unless there is consent obtained from a parent or guardian or, in the case of woman, documentation is given indicating that the woman to be married is pregnant or has given birth. Family Law § 2-301 (a); see also Picarella v. Picarella, 20 Md.App. 499, 510-11, 316 A.2d 826, 833-34 (1974). Limitations of this type on marriage are rooted in the common law. See 24 Op. Att’y Gen’l 482 (1939) (describing the age limits placed on marriage at common law). Individuals within a certain degree of lineal or collateral consanguinity may not marry. Family Law § 2-202. In order for a marriage to be valid within the State, the parties to it must be mentally competent such that “there [is] an understanding and appreciation of what the ceremony was that was being gone through with, and what were the legal consequences naturally deducible therefrom.” Montgomery v. U’Nertle, 143 Md. 200, 207, 122 A. 357, 360 (1923); Elfont v. Elfont, 161 Md. 458, 471, 157 A. 741, 746 (1932) (“[T]o render a marriage invalid because of insanity on the part of one of the parties to the contract, it must be shown clearly and convincingly that such party was unable to understand the nature of the contract of marriage and to appreciate the legal consequences naturally deducible therefrom.”). Bigamous relationships are likewise subject to regulation by the State, and any marriage stemming from such a relationship is considered void. Roth v. Roth, 49 Md.App. 433, 436, 433 A.2d 1162, 1164 (1981) (voiding a marriage when one of the parties has a still-living spouse from a previous marriage where no decree of divorce from the previous marriage has been issued); Donnelly v. Donnelly, 198 Md. 341, 346-47, 84 A.2d 89, 92 (1951); see Family Law § 2-402(b) (requiring in the application for a marriage license disclosure by the parties of the marital status of each party). We are not aware of any ease from Maryland, the U.S. Supreme Court, or elsewhere domestically in which the issue has been framed in terms of whether the fundamental right to marry encompasses, for example, “the fundamental right to marry a person of one’s choosing without government interference, even if that other person is lineally and directly related to the citizen asserting their fundamental right to marry,” such that strict scrutiny was deemed the appropriate standard of constitutional review to analyze the relevant statute.

The principle of defining precisely the asserted liberty interest is not limited to the analytical context of marriage. When the scope of an asserted liberty interest becomes relevant to determining the fundamental nature of that right, we have sought to define narrowly that right and identify precisely the group asserting the liberty interest. In Suessmann v. Lamone, 383 Md. 697, 862 A.2d 1 (2004), for example, unaffiliated registered voters filed suit in the Circuit Court for St. Mary’s County “seeking declaratory and injunctive relief from the allegedly unconstitutional exclusion of unaffiliated voters from the Democratic and Republican Parties’ primary elections for circuit court judicial candidates.” 383 Md. at 704, 862 A.2d at 5. Judges were chosen in a general election to which the judges gained access by securing placement on the ballot through victory in either of the primary elections held by the Democratic and Republican parties. Suessmann, 383 Md. at 704-05, 862 A.2d at 5. The State argued in that case, and we agreed, that “the mere fact a law imposes a burden on the right to vote does not mean the law must be subjected to strict scrutiny.” Suessmann, 383 Md. at 729-30, 862 A.2d at 20. Rather than framing the constitutional issue in terms of the generally stated fundamental right to vote, we reviewed the election laws narrowly, and in terms of whether “the State ha[d] deprived [the plaintiffs] of the right to vote in the primary elections of a party to which they [did] not belong .” Suessmann, 383 Md. at 731, 862 A.2d at 21. This method of framing the asserted liberty interest is not inconsistent with that taken by various other courts addressing the issue. See, e.g., In re Marriage Cases, 49 Cal.Rptr.3d at 702 (“Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone.”); see also Glucksberg, 521 U.S. at 722-26, 728, 117 S.Ct. at 2269, 138 L.Ed.2d 772 (framing the asserted liberty interest as the “right to commit suicide with another’s assistance” rather than the more abstractly-stated “liberty to choose how to die” or “right to choose a humane, dignified death,” and determining that, even though the right to refuse lifesaving medical treatment was deeply rooted in our Nation’s history, there existed no fundamental right to assisted suicide); see also Glucksberg, 521 U.S. at 727-28, 117 S.Ct. at 2271, 138 L.Ed.2d 772 (“That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.”); Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 701 n. 5 (D.C.Cir.2007) (determining, pursuant to Glucksberg, that the issue was framed properly as to “whether terminally ill patients have a fundamental right to experimental drugs that have passed Phase I clinical testing,” rather than the broadly-asserted right “to try to save one’s life” proposed by the terminally ill patients and adopted by the dissent); Eschenbach, 495 F.3d 695, 701 n. 5 (D.C.Cir.2007) (“If the asserted right is so broad that it protects a person’s efforts to save his life, it might subject to strict scrutiny any government action that would affect the means by which he sought to do so, no matter how remote the chance of success.”).

Our task, therefore, is to determine whether the right to same-sex marriage is so deeply embedded in the history, tradition, and culture of this State and Nation that it should be deemed fundamental. We hold that it is not.

B. There is No Fundamental Right Requiring the State to Sanction Same-Sex Marriage

It is well-established that the concepts of equal protection and due process embodied in Article 24, similar to the Fourteenth Amendment, are viewed as somewhat flexible and dynamic in order to accommodate advancements in the contemporary political, economic, and social climate. As we have stated,

while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee. Thus, while we may not depart from the Constitution’s plain language, we are not bound strictly to accept only the meaning of the language at the time of adoption.... Thus, we construe the Constitution’s provisions to accomplish in our modern society the purposes for which they were adopted by the drafters.

Benson v. State, 389 Md. 615, 632-33, 887 A.2d 525, 535 (2005) (citations omitted); see also Lawrence, 539 U.S. at 579, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (“As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”). Mere acquiescence for any length of time, however, will not serve as an adequate foundation for the constitutionality of a particular legislative enactment. We therefore consider the current economic, political, and social climate in order to determine whether same-sex marriage is a fundamental right.

There is no doubt that the legal landscape surrounding the rights of homosexual persons is evolving. A trend toward gay, lesbian, and bisexual persons gaining more rights seems evident within Maryland, see generally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a “Sexual Orientation-Blind” System in Maryland and the Recognition of Same-Sex Marriage, 35 U. Balt. L.Rev. 73, 75-92 (2005) (cataloging recent trends toward equality for lesbian, gay, bisexual, and transsexual persons and its potential impacts on the constitutionality of same-sex marriage in Maryland), as well as in the laws of the Nation as a whole. Lawrence, 539 U.S. at 575, 579, 123 S.Ct. at 2482, 2484, 156 L.Ed.2d 508 (overruling Bowers and declaring that the continued viability of the precedent allowing states to criminalize private consensual sexual intimacy between members of the same sex “demeans the lives of homosexual persons.”); Romer, 517 U.S. at 623-24, 632, 116 S.Ct. at 1623, 1627, 134 L.Ed.2d 855 (invalidating on the grounds that it “impos[ed] a broad and undifferentiated disability on a single named group” an amendment to the Colorado Constitution that made it illegal for the legislature to pass laws prohibiting discrimination against gay, lesbian, and bisexual persons on account of their sexual orientation); see also Amer. Assoc, of Law Libraries, Social Responsibilities Special Interest Section, Standing Committee on Lesbian and Gay Issues, Introduction of Sexual Orientation and the Law: A Research Bibliography Selectively Annotating Legal Literature Through 2005, at XXV (discussing the exponential increase in recent years of case law and legislative enactments granting to lesbian, gay, bisexual, and transsexual persons rights never before enjoyed). Despite this expanding library of statutory and judicial authorities acknowledging a growing awareness of the need to protect gay, lesbian, and bisexual persons in broader society, acceptance alone does not require that the State or we recognize the asserted fundamental right that Appellees seek.

The breadth of precedent, particularly Romer and Lawrence, falls short of establishing as deeply rooted the concept of same-sex marriage. In Romer, while the Supreme Court held that it was unconstitutional for Colorado to amend its constitution to preclude state legislative enactments protecting from discrimination based on sexual orientation, the Court did so on the basis of equal protection. The Court determined, furthermore, that a “disadvantage imposed [that] is born of animosity toward the class of persons affected,” thereby reflecting “a bare ... desire to harm a politically unpopular group[,] cannot constitute a legitimate governmental interest.” Romer, 517 U.S. at 634-35, 116 S.Ct. at 1629, 134 L.Ed.2d 855 (citations omitted). The Supreme Court concluded that the asserted state interests in protecting other citizens’ freedom of association “who have personal or religious objections to homosexuality,” and the “interest in conserving resources to fight discrimination against other groups,” Romer, 517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed.2d 855, was insufficient even for rational basis review. Beyond the principle that no state may pass laws or state constitutional amendments that prohibit any and all state or local government action designed to protect homosexual persons as a named class, Romer, 517 U.S. at 624, 116 S.Ct. at 1623, 134 L.Ed.2d 855, nothing within the language of this landmark case establishes as deeply rooted the concept of same-sex marriage.

Nor does Lawrence establish as deeply rooted the right to same-sex marriage. First, while the Court in that case overturned Bowers and declared unconstitutional the Texas statute on the basis that “[the law and traditions in the past half century] show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 571-72, 123 S.Ct. at 2480, 156 L.Ed.2d 508, it did so on what appears to be rational basis review. 539 U.S. at 579, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”) (emphasis added). Nor did the Court in that case state expressly that the right to sexual intercourse between two individuals of the same-sex was fundamental. Lawrence, 539 U.S. at 586, 123 S.Ct. at 2488, 156 L.Ed.2d 508 (Scalia, J., dissenting) (“Though there is discussion of ‘fundamental proposition^],’ ..., and ‘fundamental decisions,’ ..., nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ ”). If the Court in Lawrence was unwilling to declare that the right of two persons of the same sex to engage in sexual intimacy was deeply rooted in history and tradition, we are not disposed to accept that the Lawrence Court intended to confer such status on the public recognition of an implicitly similar relationship. See Standhardt, 77 P.3d at 457 (“If the Court did not view such an intimate expression of the bond securing a homosexual relationship to be a fundamental right, we must reject any notion that the Court intended to confer such status on the right to secure state-sanctioned recognition of such a union.”).

Indeed, the Supreme Court in Lawrence, after declaring unconstitutional the Texas statute that forbade same-sex intimate conduct, held that

[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Lawrence, 539 U.S. at 578-79, 123 S.Ct. at 2484, 156 L.Ed.2d 508 (emphasis added). Lawrence does not establish a fundamental right to same-sex marriage. Several of the holdings by other courts that have addressed the issue are in accord. See, e.g., Standhardt, 77 P.3d at 456-57 (determining that the Supreme Court’s holding in Lawrence cannot be interpreted to provide for same-sex marriage); Wilson, 354 F.Supp.2d at (“[T]he Supreme Court’s Decision in Lawrence cannot be interpreted as creating a fundamental right to same-sex marriage.”); Andersen, 138 P.3d at 979 (distinguishing Lawrence on similar grounds).

We are unwilling to hold that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland. Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268, 138 L.Ed.2d 772. Even a quick glance at the laws of Maryland indicate that this State has long regarded marriage as a union between a man and a woman. The consanguinity statute, for example, addresses only those marriages with a certain degree of blood relation as between members of the opposite sex. Family Law § 2-202. The statutory scheme regulating dealings between spouses refers to the parties in terms of a “married woman” and “her husband.” Family Law §§ 4-201 to 4-205. Family Law § 4-301, furthermore, involves liabilities for, and protection from, the obligations of a spouse. The statute addresses only those liabilities as between “husband” and “wife.” These are only a few of the examples of Maryland family law statutes that recognize sex-specific language when referring to the marital relationship. The point is that despite the long-established presence of Family Law § 2-201, the laws of our State historically, and continue to, employ sex-specific language that reflects Maryland’s adherence to the traditional understanding of marriage as between a man and woman.

In spite of the changing attitudes about what constitutes a “nuclear family,” Congress, as well as nearly every state in the Nation, has taken legislative action or otherwise enacted constitutional amendments limiting explicitly the institution of marriage to those unions between a man and a woman.⁶⁷ With the exception of Massachusetts, virtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole. Standhardt, 77 P.3d at 465 (“[A]lthough many traditional views of homosexuality have been recast overtime in our state and Nation, the choice to marry a same-sex partner has not taken sufficient root to receive constitutional protection as a fundamental right.”); Lewis, 908 A.2d at 211 (“Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people ... that it ranks as a fundamental right.”); Dean, 653 A.2d at 332-33 (declaring summarily that same-sex marriage is not deeply-rooted in history and tradition); Baehr, 852 P.2d at 57 (concluding that there is no fundamental right to same-sex marriage); Baker v. Nelson, 191 N.W.2d at 186 (“The institution of marriage as a union of man and woman ... is as old as the book of Genesis.”); In re Kandu, 315 B.R. at 140 (holding that there is no fundamental right to same-sex marriage based on the Supreme Court’s cautionary statements that courts should “exercise the utmost care” in establishing a new fundamental liberty interest); Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 9 (“The right to marry someone of the same sex, however, is not ‘deeply rooted’; it has not even been asserted until relatively recent times.”); Andersen, 138 P.3d at 979 (“That some laws provide [protections to gay and lesbian persons] shows change is occurring in our society, but community standards at this time do not show a societal commitment to inclusion of same-sex marriage as part of the fundamental right to marry.”); but see Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 961 (2003) (“Because the statute does not survive rational basis review, we do not consider the [same-sex couples’] arguments that this case merits strict scrutiny.”). While the opinions of other courts in the Nation are not conclusive with regard to the present case, even when they constitute an overwhelming majority, their reasoning and analysis are instructive as they provide a sampling of the current socio-political climate in which we make our determination whether the asserted right is fundamental.

We are not unmindful of the fact that the relationships gay, lesbian, and bisexual persons seek to enter involve intimate and private decisions that extend to the core of the right to personal autonomy. Those decisions do not necessarily require us or the State to recognize formally those relationships in the form of State-sanctioned marriage. That a liberty interest such as the argued-for right to marry a person of the sex of one’s choosing, even if assumed to be important, does not render automatically fundamental that liberty interest. Glucksberg, 521 U.S. at 727-28, 117 S.Ct. at 2271, 138 L.Ed.2d 772; Hornbeck, 295 Md. at 649, 458 A.2d at 786 (‘Whether a claimed right is fundamental does not turn alone on the relative desirability or importance of that right.”). When dealing in the realm of due process, furthermore, we are hesitant to recognize new fundamental rights, especially when the Supreme Court has either failed or declined to do so. “[W]here social or economic legislation [such as the regulation of marriage] is involved, ... [we] have generally avoided labeling a right as fundamental so as to avoid activating the exacting strict scrutiny standard of review.” Hornbeck, 295 Md. at 650, 458 A.2d at 786. As the Supreme Court stated, “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ ... lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.” Glueksberg, 521 U.S. at 720, 117 S.Ct. at 2268, 138 L.Ed.2d 772 (quoting Collins v. City of darker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)). With these principles in mind, and in light of Maryland’s history of limiting marriage to those unions between members of the opposite sex, coupled with the policy choices of nearly every other state in the Nation, we do not find that same-sex marriage is so deeply rooted in this State or the country as a whole that it should be regarded at this time as a fundamental right.

Y. Family Law § 2-201 Comports with Notions of Rational Basis Review.⁶⁸

Because Family Law § 2-201 does not discriminate on the basis of sex, burden significantly a fundamental right, or otherwise draw a classification based on suspect or quasi-suspect criteria, rational basis review is the correct standard of constitutional review under which we consider the Maryland marriage statute. Under that standard,

the State[] [is afforded] a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. [The General Assembly is] presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

McGowan, 366 U.S. at 425-26, 81 S.Ct. at 1105, 6 L.Ed.2d 393; Murphy, 325 Md. at 355, 601 A.2d at 108 (“[A] court ‘will not overturn’ the classification ‘unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude the [governmental] actions were irrational.”). Rational basis review “does [not] authorize ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam)); Md. Aggregates Ass’n, Inc. v. State, 337 Md. 658, 655 A.2d 886 (1995) (“ ‘[C]ourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ ”) (citations omitted). Thus, Family Law § 2-201 is presumed constitutional, and the burden is on Appellees to establish the unconstitutionality of the statute. Whiting-Turner Contracting Co., 304 Md. at 352, 499 A.2d at 185 (holding that a statute reviewed under the “rational basis” test “enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary”). This burden requires Appellees to “‘negative every conceivable basis which might support [the statute],’ whether or not the basis has a foundation on the record.” Heller, 509 U.S. at 320-21, 113 S.Ct. at 2643, 125 L.Ed.2d 257 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)).

Appellants offer in support of Family Law § 2-201 two primary governmental interests: (1) the State has a legitimate interest in maintaining and promoting its police powers over the traditional institution of marriage and its binary, opposite-sex nature; and (2) the State has a legitimate interest in encouraging marriage between two members of the opposite sex, a union that is uniquely capable of producing offspring within the marital unit. We shall consider these interests, as necessary, in order to determine first, whether either (or both) is sufficient to justify the distinction made in Family Law § 2-201, and secondly, whether the means fit sufficiently the ends sought by the statute.

We agree that the State’s asserted interest in fostering procreation is a legitimate governmental interest. As one of the fundamental rights recognized by the Supreme Court as a matter of personal autonomy, procreation is considered one of the most important of the fundamental rights. Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655 (“Marriage and procreation are fundamental to the very existence and survival of the race.”) (emphasis added); Zablocki, 434 U.S. at 386, 98 S.Ct. at 681, 54 L.Ed.2d 618 (“It is not surprising that the decision to marry has been placed in the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of family in our society.”); Meyer, 262 U.S. at 399, 43 S.Ct. at 626, 67 L.Ed. 1042 (recognizing that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause). In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest.

The question remains whether there exists a sufficient link between an interest in fostering a stable environment for procreation and the means at hand used to further that goal, i.e., an implicit restriction on those who wish to avail themselves of State-sanctioned marriage. We conclude that there does exist a sufficient link. As stated earlier in this opinion, marriage enjoys its fundamental status due, in large part, to its link to procreation. Loving, 388 U.S. at 12, 87 S.Ct. at 1823, 18 L.Ed.2d 1010 (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”) (emphasis added); Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655 (“Marriage and procreation are fundamental to the very existence and survival of the race.”); Maynard, 125 U.S. at 211, 8 S.Ct. at 729, 31 L.Ed. 654 (“[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and society, without which there would be neither civilization nor progress.”). This “inextricable link” between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding). Acceptance of this notion is found in the clear majority of opinions of the courts that have considered the issue. See Standhardt, 77 P.3d at 458 (“Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman.”); Dean, 653 A.2d at 332-33 (holding that the right to marriage is deemed fundamental because of its link to procreation); Singer, 522 P.2d at 1197 (“[M]arriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one woman.”); Andersen, 138 P.3d at 982-83 (“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple.”); Baker v. Nelson, 191 N.W.2d at 186 (“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”) (citing Skinner, 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. 1655).

Appellees urge in response, quite convincingly, that Family Law § 2-201 is not related rationally to the governmental objective of fostering optimal relationships for procreation because it is at once over-inclusive and under-inclusive. Appellees argue that it is overinclusive because children may be born into same-sex relationships through alternative methods of conception, including surrogacy, artificial insemination, in vitro fertilization, and adoption. The statute is also under-inclusive, according to Appellees, because not all opposite-sex couples choose to bear children, or are able to do so because of infertility or otherwise. Lastly, Appellees posit that the marriage statute is not linked sufficiently to the interests in procreation because allowing same-sex couples to marry will not impact interests in procreation in that “[o]pposite-sex couples will continue to bring children into their families through ‘traditional’ procreation regardless of whether same-sex couples are permitted to marry.”⁶⁹

There is some merit to these arguments. There appears to be a trend towards the gradual erosion of the “traditional” nuclear family in today’s society to the extent that the classic family structure, consisting of a mother, father, and children born to them during the marriage, is less and less the norm. In 2000, of the 104.7 million households counted by the U.S. Census Bureau, only 55.3 million of them were composed of married couple households. Jason Fields & Lynne M. Casper, U.S. Census Bureau, America’s Families and Living Arrangements: March 2000, Current Population Reports, P20537, at 1 (2001), available at http://www.census.gov/prod/2001 pubs/p20-537.pdf (hereinafter “America’s Families 2000”). Of those 104.7 million households, only 24.1 percent were represented by the nuclear family (married couples with their own children). Id. at 3. This number represented a drastic decline from 40 percent of all households in 1970. Id The percentage of married opposite-sex households without children, however, remained constant from 1970 to 2000 at approximately 29 percent of all households in the United States. Id. As of 2000, therefore, there were just as many married households in the United States without marital children as those households with marital children. The period of time from 1970 to 1990, furthermore, saw an increase in births among unmarried women, “raising the proportion of children living with a single parent.” Id. at 4 (quoting Amara Bachu, U.S. Census Bureau, Trends in Premarital Childbearing: 1930-1991/., Current Population Reports, P23-197 (1999)). In 2000, there were 10 million single-mother families in the United States (up from 3 million in 1970), and 2 million single-father families (up from 393,000 in 1970). Id. at 6-7, 8.

The statistics are not limited to households in which children live with one or both biological/genetic parents. Indeed, reports from the U.S. Census Bureau show that of the 72.1 million children in the United States in 2000, only 68 percent live in a married couple family home. Terry Lugalia, Julia Overturf, U.S. Census Bureau, Children and the Households They Live In: 2000, CENSR-14, at 8 (2004), available at http://www.census.gov/prod/2004pubs/censr-14.pdf (hereinafter “Children and the Households They Live In ”). Four million, four hundred thousand children (6.1% of the total children in the United States) lived with one or both grandparents, whereas 5.9 million children lived with someone other than a biological/genetic parent. Id. at 2, 3. See also Brent Bennett, et al., To Grandmother’s House We Go: Examining Troxel, Harrold, and the Future of Third-Party Visitation, 74 U. Cin. L.Rev. 1549, 1553 (2006). In 2000 and closer to home, according the Census Bureau, 67 percent of all children in Baltimore lived outside of a married couple household, while 25.7 percent of all children lived with someone other than a biological/genetic parent. The City ranked in the top five nationwide in both of these categories. Children and the Households They Live In, supra, at 18. Thus, reasonable doubt exists that the traditional model of what constitutes a family does not constitute the majority of households any longer.

A legislative enactment reviewed under a rational basis standard of constitutional review need not be drawn with mathematical exactitude, and may contain imperfections that result in some degree of inequality. Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 644-45, 837 A.2d 931, 944 (2003) (“[A] state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ”) (citations omitted); Whiting-Turner, 304 Md. at 352, 499 A.2d at 185 (“[A] classification [subject to rational basis review] having some reasonable basis need not be made with mathematical nicety and may result in some inequality”). Looking beyond the fact that any inquiry into the ability or willingness of a couple actually to bear a child during marriage would violate the fundamental right to marital privacy recognized in Griswold, 381 U.S. at 484-86, 493, 85 S.Ct. at 1681, 14 L.Ed.2d 510, the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation. In such a situation, so long as the Legislature has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, we may not “substitute [our] social and economic beliefs for the judgment of legislative bodies----” Md. Aggregates Ass’n, Inc. v. State, 337 Md. 658, 655 A.2d 886 (1995); see also Heller, 509 U.S. at 321, 113 S.Ct. at 2643, 125 L.Ed.2d 257 (“[C]ourts are compelled under rational-based review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ”) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)). In light of the deference owed to the General Assembly under rational basis review, we shall not declare Family Law § 2-201 unconstitutional, even though it may be under—or over-inclusive, or otherwise create a distinction based on imperfectly drawn criteria.⁷⁰,⁷¹

VI. Conclusion

Because Family Law § 2-201 does not abridge the fundamental right to marriage (as we understand that right), does not discriminate on the basis of sex in violation of Article 46, and does not otherwise implicate a suspect or quasi-suspect class, the marriage statute is subject to rational review. As such, it carries a strong presumption of constitutionality. Under rational review, “[w]here there are ‘plausible reasons’ for [the General Assembly’s] action, ‘our inquiry is at an end.’ ... [Rationale basis review] is a paradigm of judicial restraint. ‘The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that the judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (citations omitted). In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED; STAY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DECLARE CONSTITUTIONAL THE STATUTE AT ISSUE AND TO DENY INJUNCTIVE RELIEF TO APPELLEES. COSTS TO BE PAID BY APPELLEES.

RAKER, J., Concurs in Part and Dissents.

BELL, C.J., and BATTAGLIA, J., Dissent.

1 . Md.Code (1957, 2006 Repl.Vol.), Family Law Article, § 2-201, provides that “[o]nly a marriage between a man and a woman is valid in this State.”

2 . Article 46 of the Maryland Declaration of Rights (“Article 46”) states that "[ejquality of rights under the law shall not be abridged or denied because of sex.”

3 . Article 24 of the Maryland Declaration of Rights ("Article 24’’) states that "no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

4 . The nine same-sex couples who applied for marriage licenses are as follows: Gitanjali Deane and Lisa Polyak; Charles Blackburn and Glen Dehn; Jodi Kelber-Kaye and Stacey Kargman-Kaye; Alvin Williams and Nigel Simon; Steven Palmer and Ryan Killough; Patrick Wojahn and David Kolesar; Mikkole Mozelle and Phelicia Kebreau; Donna Myers and Maria Barquero; and Takia Foskey and Joanne Rabb. John Lestitian is the surviving partner of a thirteen-year same-sex relationship who formed a new same-sex relationship and wishes to preserve the right to apply for a marriage license in the future.

5 . Although Lestitian has not applied for a marriage license, he plans to do so in the future and, according to Appellees, the Clerk of the Circuit Court for Washington County would deny his application under the current statutory scheme. There is scant doubt about the accuracy of this prediction.

6 . Through the efforts of Appellees’ counsel, we are directed to 339 Maryland laws that provide for benefits, conditioned on marital status, which grant rights and responsibilities to married couples, to the effective exclusion of same-sex couples. They include, but are not limited to, the areas of taxation, business regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding spousal health care, insurance, labor and employment, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements. This is but a partial list of the benefits provided in Maryland to married couples and denied to same-sex couples prohibited from marriage.

In terms of federal benefits, the Government Accounting Office (GAO) compiled in 1997, and updated in 2004, a list of federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. According to the study, there were 1,138 federal statutes providing such benefits. A.B.A. Sec. of Fam L., A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 38 Fam. L.Q. 339, 366, n. 98 (citing Report No. 04-353R (4 January 2004), available at http://www.gao.gOv/new.items/d 04353r.pdf). Although disposition of the present case would have no effect on Appellees’ eligibility for those federal benefits under the Federal Defense of Marriage Act, it illustrates the current regulatory landscape regarding same-sex marriage and the marital benefits from which Appellees are excluded.

The privileges that accompany marriage, according to Appellees, are not limited to demonstrable statutory benefits. Same-sex couples suffer, it is proffered, various intangible harms, which include the stigma attached to the couples and their children, and harm to dignity resulting from being singled-out for unequal treatment on the basis of their sexual preference.

7 . Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-202.

8 . Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-301.

9 . Md.Code (1957, 2006 Repl.VoL), Family Law Article, § 2-402(b)(l)(v)-(vi).

10 . According to the record, four of the couples reside in Baltimore City; three couples reside in Prince George's County; one member of another couple resides in St. Mary's County, while the other member resides in Costa Rica; Mr. Lestitian resides in Washington County; and one couple resides in Dorchester County.

11 . Appellees filed a motion to strike the accompanying declarations of Lisa Ayers, Esquire; Judith Stacey, Ph. D; Nancy F. Cott, Ph.D; and, M.V. Lee Badgett, Ph. D. These declarations purported to be expert opinions debunking the General Assembly's assumed factual underpinnings for Family Law § 2-201. The trial judge granted Appellants' motion as to the declaration of Ms. Ayers.

12 . Maryland Rule 2—632(f) provides that "[w]hen an appeal is taken from an order or a judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the adverse party.” Although the record is unclear whether this Rule was relied on as the basis for the grant of the stay, the validity of the stay is unchallenged here.

13 . If Family Law § 2-201 discriminates on the basis of sex, as the Appellees assert, this Court would examine the statute with the strictest of scrutiny. Tyler v. State, 330 Md. 261, 266, 623 A.2d 648, 651 (1993) (holding that, "because of Article 46 of the Maryland Declaration of Rights, sex-based classifications are suspect and are subject to strict scrutiny”); Murphy v. Edmonds, 325 Md. 342, 357 n. 7, 601 A.2d 102, 109 n. 7 (1992) (holding that classifications based on sex are suspect and subject to strict scrutiny review under the Equal Rights Amendment of Article 46); State v. Burning Tree Club, Inc., 315 Md. 254, 295-96, 554 A.2d 366, 387 (1989) (“Burning Tree II"). If it is determined that Family Law § 2-201 does not draw a sex-based classification, however, our cases instruct us to analyze the constitutionality of the statute under rational basis review. See Murphy, 325 Md. at 355-56, 601 A.2d at 108-09 (1992) (holding that statutory classifications that do not affect a suspect or quasi-suspect class are subject to rational basis review, and will be upheld so long as the statute is rationally related to a legitimate governmental purpose).

Judge Battaglia's dissent goes to great lengths to explain that "[t]he majority in the present case fails to recognize that Burning Tree II clearly adopted strict scrutiny as the standard in ERA cases.” Judge Battaglia's Dissent op. at 383, 932 A.2d 670. To the contrary, the Majority recognizes that strict scrutiny should be applied when the ERA is implicated. But in order for strict scrutiny to be the approach standard, it must first be found that the statute discriminates on the basis of sex. We conclude that it does not.

14 . As will be described infra, each case relied on by Appellees in support of their argument involved legislative classifications that gave certain rights to an entire class of men or women, to the exclusion of the opposite sex. The classifications in those cases are so obviously sex-based that they are of negligible value in demonstrating the invalidity of a statute such as Family Law § 2-201 that, on its face, applies equally to the members of both sexes.

15 . Originally introduced in 1923 to Congress by the National Women’s Party, Renee Feinberg, The Equal Rights Amendment 16 (1986), the proposed federal equal rights amendment, upon which the Maryland counterpart was based, was proposed in every Congressional session since then and through the 1971 Ninety-Second session. Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J.Women & L. 113, 116 (1997). "Propelled by a wave of political support for women's rights reform, the amendment passed Congress by an overwhelming majority----” Id. The proposed amendment passed in the House by a vote of 354 to 24 and in the Senate 84 to 8. 117 Cong. Rec. 35,815 (1971); 118 Cong. Rec. 9598 (1972). Three-quarters of the States (38 at the time) were required to ratify the amendment before 1979 in order for it to become part of the U.S. Constitution. Feinberg, supra, at 14. When only 35 states ratified the amendment by the deadline, Feinberg, supra, at 14, Congress adopted a resolution extending the deadline for ratification to 30 June 1982. Held et al., supra, at 117; H.R.J. Res. 638, 95th Cong., 2d Sess., 92 Stat. 3799 (1978). The amendment did not receive the three remaining votes required by 1982, and thus failed to become part of the U.S. Constitution. Feinberg, supra, at 1.

16 . The proposed federal amendment read in pertinent part: "SECTION 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Proposed Amendment to the United States Constitution, H.R.J. Res. 208, 92d Cong., 2d Sess., 86 Stat. 1523 (1972).

17 . As we have stated in the past,

[i]f the text [of a constitutional provision] is ambiguous, the Court should first endeavor to ascertain its meaning from other parts of the instrument. It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid. When that becomes necessary, however, it is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereby....

Reed v. McKeldin, 207 Md. 553, 560-61, 115 A.2d 281, 285 (1955) (emphasis added).

We are mindful, however, of pitfalls and limitations in relying on contemporary newspaper'accounts in interpreting legislative intent. In re Jason W., 378 Md. 596, 607-11, 837 A.2d 168, 175-78 (2003) (Harrell, J., concurring) (stating that, on the “rare occasion[] when it is appropriate for a court to consider, to some degree, relatively contemporaneous relevant newspaper articles in ascertaining the legislative intent of an enactment of comparable vintage ..., the use of newspaper accounts should be approached with caution and selectivity,” and cataloging cases from various jurisdictions in which courts have declined to consider contemporaneous newspaper articles as conclusive evidence of legislative intent); see also Hornbeck, 295 Md. at 661, 458 A.2d at 792 (Cole, J., dissenting) (“Newspaper articles ... are hardly the most reliable sources for extrapolating legislative intent; they certainly are not adequate substitutes for cogent analysis of the purpose of a provision as discerned from its historical context and basic goals.”). We consider the contemporaneous newspaper accounts here only to provide context for our analysis. In re Jason W., 378 Md. at 610-11, 837 A.2d at 177-78.

18 . The Wiggins Amendment provided for an additional clause in the proposed ERA that stated that "[t]his article shall not impair the validity of any law of the U.S. which exempts a person from compulsory military service or any other law of the U.S. or of any state which reasonably promotes the health and safety of the people.”

19 . In Burning Tree I, the preferential tax assessment was conditioned upon the club’s compliance with an anti-discrimination clause in the statutory scheme granting the tax benefits, which read, in pertinent part, 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. 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.

Burning Tree I, 305 Md. at 57-58, 501 A.2d at 819 (emphasis added). Central to the plurality opinion of this Court that the statute violated the Maryland Declaration of Rights, was the ‘‘primary purpose” qualification to the anti-discrimination provision emphasized in italics above. Based on this "primary purpose” provision, the Attorney General found that the club did not discriminate on the basis of sex because the club, pursuant to the statute, operated for the “primary purpose” of benefit-ting one sex, namely men. Burning Tree I, 305 Md. at 59, 501 A.2d at 820.

20 . Respected commentators such as Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman, have discussed the intended scope of the Equal Rights Amendment. In their oft-cited law review article, the authors examined generally the need for an equal rights amendment:

An amendment that deals with all sex discrimination, and only sex discrimination, corresponds roughly to the boundaries of a distinct and interrelated set of legal relationships.... [A] woman’s status before the law in one area, such as employment, relates both practically and theoretically to her status in other areas, such as education or responsibility for family support. Coming to grips with the dynamics of discrimination against women requires that we recognize the indications of, the excuses for, and the problems presented by women’s inferior status. An understanding of these dynamics in any one field informs and enlightens understanding of sex bias elsewhere in the law. This is because, in the past, the legal and social systems have been permeated with a sometime inchoate, but nevertheless pervasive, theory of women’s inferiority.

Barbara A. Brown et al., The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 885 (1971) (emphasis added). The authors stated further that

without a constitutional mandate, women’s status will never be accorded the special concern which race now receives because of the history of the Fourteenth Amendment. For these reasons it is important to have a constitutional amendment directed to this specific area of equality, out of which a special body of new law can be created.

Id. (emphasis added).

21 . In Burning Tree II, two members of the country club attacked as unconstitutional a statute, enacted in response to Burning Tree I, that excluded from preferential tax treatment those clubs that discriminated on the basis of race, color, creed, sex, or national origin. 315 Md. at 261, 554 A.2d at 370. The plaintiffs in that case argued that the statute burdened unconstitutionally the club's First Amendment freedom of association and constituted a violation of Art. 1, § 10 (the Contract Clause) of the U.S. Constitution and Article III, § 33 of the Maryland Constitution. Burning Tree II, 315 Md. at 261-62, 554 A.2d at 370. This Court affirmed summarily the holdings of Burning Tree I that the discriminatory practices of the country club violated Article 46. Burning Tree II, 315 Md. at 263, 554 A.2d at 371.

22 . The common law doctrine of inter-spousal immunity barred a wife from bringing a cause of action, without her husband’s concurrence, in order to recover for losses sustained as a result of either person or property injury. Boblitz v. Boblitz, 296 Md. 242, 244, 462 A.2d 506, 507 (1983). In Boblitz, Ms. Lauretta Baseman-Boblitz was injured as a result of her husband's negligent operation of an automobile. Boblitz, 296 Md. at 243, 462 A.2d at 507. In that case, therefore, we were called upon to determine whether the common law doctrine remained viable, in light of Article 46, as an affirmative defense to an action arising in tort when the wife’s personal injury occurred as the result of negligence of her husband. Boblitz, 296 Md. at 244, 462 A.2d at 507. As Appellees point out, we held there that “any deprivation of rights based upon sex would contravene the basic law of this State.” Our decision to abrogate the common law doctrine, however, was based on the premise that such an archaic doctrine, founded entirely on the "derogation of married women,” Boblitz, 296 Md. at 245, 462 A.2d at 507, had no place in modern society. We find, therefore, that Appellees’ reliance on language parsed from Boblitz is misplaced.

23 . "Sitters” were individuals employed by a place of entertainment for the purpose of generating sales by circulating amongst the patrons in order to solicit them to purchase drinks or other items. Turner v. State, 299 Md. 565, 569, 474 A.2d 1297, 1298-99 (1984). In Turner, for example, the proprietor of a tavern required female dancers employed by the tavern to interact with patrons in order to "produce sales.” Turner, 299 Md. at 569, 474 A.2d at 1299.

24 . "Criminal Conversation,” at common law, was the act of adultery committed by a married woman. Kline v. Ansell, 287 Md. 585, 586-87, 414 A.2d 929, 929 (1980). Criminal conversation was actionable by a husband against the third party male who engaged in sexual intercourse with the married woman. Black’s Law Dictionary 402 (8th ed.2004). Only a man could sue or be sued under the doctrine. Kline, 287 at 586-87, 414 A.2d at 929.

25 . The trend of this line of precedent, as our judicial peers in Vermont have indicated when similarly confronted, is consistent with the seminal U.S. Supreme Court equal protection cases addressing classifications based on sex. See Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 881 n. 13 (1999). In each of these landmark decisions, the U.S. Supreme Court struck down as unconstitutional statutes that differentiated between men and women as discrete classes for the purposes of unequal treatment between the sexes. Id. See, e.g., United States v. Virginia, 518 U.S. 515, 555-56, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (invalidating a Virginia statute excluding women from a "citizen-soldier” program offered at Virginia Military Institute); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (holding unconstitutional a Mississippi University for Women admission policy denying the admission of an adult male to the nursing education program solely because of his sex); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (striking down an Oklahoma statute that allowed females to purchase 3.2% beer at the age of 18, while prohibiting males from purchasing the same until they reached 21); Weinberger v. Wiesenfeld, 419 U.S. 822, 95 S.Ct. 38, 42 L.Ed.2d 45 (1974) (declaring unconstitutional a federal statute providing that widows and divorced mothers, but not widowers, may collect social security benefits); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (nullifying federal statute that made it more difficult for the spouses of service-women to claim dependent status for purposes of quarters' allowance and medical benefits); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (rendering unconstitutional an Idaho statute that provided that, as between two or more persons equally qualified to be the administrator of an estate, males are preferred to females).

26 . The dissent points out that a plurality of this Court in Burning Tree I rejected the "equal application” theory and attempts to label that discredited theory as one espoused anew by the majority here. Judge Battaglia’s Dissent, op. at 356-67, 932 A.2d at 654-61. Aside from the fact that the language quoted in the main text to this footnote was provided merely to synthesize the holdings of the multitude of Maryland cases cited previously in the majority opinion, the "separate but equal” approach, introduced by Chief Judge Murphy and rejected by a plurality of that Court in Burning Tree I, 305 Md. at 79, 501 A.2d at 830, is not the "equal application” theory grounding our analysis in the present case.

Burning Tree I concerned the constitutionality of a "primary purpose” qualification to an anti-discrimination provision upon which the receipt of preferential property tax assessments for private country clubs was based. The qualification provided that “[t]he provisions of the section [prohibiting discrimination on the basis of, among other characteristics,] sex shall not apply to any club whose facilities are operated with the primary purpose ... to serve or benefit members of a particular sex, nor to clubs which exclude certain sexes on certain days and at certain times.” Burning Tree I, 305 Md. at 57-58, 501 A.2d at 819. In other words, Burning Tree Club, an all-male country club, could discriminate against women based solely on their sex, yet still enjoy the preferential treatment pursuant to the "primary purpose” exemption, so long as the exclusion of women was total. Burning Tree I, 305 Md. at 58-59, 501 A.2d at 819-20. The circuit court held that the primary purpose provision, although gender neutral by its language, was discriminatory in its effect.

In Burning Tree I, Chief Judge Murphy, writing for two others, espoused a so-called "separate but equal” approach, 305 Md. at 79, 501 A.2d at 830, which provided essentially that, "[u]nder its terms, the primary purpose provision is sex-neutral because it operates without regard to gender.” Burning Tree I, 305 Md. at 71, 501 A.2d at 826. According to the Chief Judge, “the statute [did] 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.” Id. Because there was nothing in the statute to prohibit all-women clubs from forming and excluding all men from membership, while still enjoying the statute’s protections, Chief Judge Murphy and his two colleagues felt that the statute did not implicate the ERA. Burning Tree I, 305 Md. at 78, 501 A.2d at 830 ("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, [the statute] did not cause there to be no all-female country clubs.”). Chief Judge Murphy opined also that the State’s acquiescence in the country club’s discrimination did not amount to state action. Burning Tree I, 305 Md. at 76-77, 79, 501 A.2d at 828-29, 830. Recognizing, however, that his "separate but equal” approach was not going to command a majority of the Court, 305 Md. at 80, 501 A.2d at 830-31, Chief Judge Murphy opined that the primary purpose provision was not severable from the remainder of the anti-discrimination provision. Burning Tree I, 305 Md. at 81-84, 501 A.2d at 831-32.

Although Judge Rodowsky agreed with Chief Judge Murphy that the club’s participation in the open space program did not, by itself, amount to state action, Burning Tree I, 305 Md. at 85, 501 A.2d at 833 (Rodowsky, J., concurring), he opined that the primary purpose provision itself was state action and violative facially of the ERA. Burning Tree I, 305 Md. at 85-86, 501 A.2d at 833 (Rodowsky, J., concurring). He wrote separately because, in his view, "the lead opinion ha[d] not identified, and responded directly to, [the plaintiffs’] argument that 'the primary purpose provision by its terms single[d] out for special exception from an otherwise uniformly applicable anti-discrimination measure private discrimination of a certain type-sex-and to a certain degree-total-which neither the State nor a private club receiving a tax exemption could otherwise practice.’ ” Burning Tree I, 305 Md. at 85, 501 A.2d at 833 (Rodowsky, J., concurring). In stating his view that the primary purpose provision would violate clearly on its face the ERA, Judge Rodowsky explained that, "in application, the provision will always be applied to a particular sex, the one excluded by a given, participating club. In all of the cases previously decided by this Court in which a rule of common law or a statute was invalidated under the E.R.A. the rule or statute itself isolated one sex and specified either males or females for different burdens or benefits.” Burning Tree I, 305 Md. at 87, 501 A.2d at 834 (Rodowsky, J., concurring). Thus, "in the context of sex discrimination, only one sex will be the object of discrimination.” Id. In rejecting the "separate but equal” approach presented by the Chief Judge, Judge Rodowsky concluded that "[i]t is not an answer ... to say that at the elevated level of the statewide open space program, the program ... is neutral with respect to sex, in the sense that an all female or an all male country club is eligible to participate. The ostensible prohibition against sex discrimination applies to each individual country club participating in the open space program.” Id. Judge Rodowsky agreed that the primary purpose provision was not severable from the anti-discrimination provision. Burning Tree I, 305 Md. at 88, 501 A.2d at 835 (Rodowsky, J., concurring).

Judge Eldridge, writing for himself and two other judges, disagreed completely with Chief Judge Murphy, opining that, "[i]f the views set forth in [the "majority’s”] opinion were in the future to be adopted by a majority of this Court, the effectiveness of the [E.R.A.] to the Maryland Constitution would be substantially impaired.” Burning Tree I, 305 Md. at 89, 501 A.2d at 835 (Eldridge, J., concurring in part, dissenting in part). Judge Eldridge took issue specifically with what he deemed to be the majority’s "separate but equal” approach that the "primary purpose” provision " '[did] not apportion or distribute benefits or burdens unequally among the sexes’ and ma[d]e[ ] the statutory 'benefit available to all single sex country clubs agreeing to participate in the State's open space program.' ” Burning Tree I, 305 Md. at 90-91, 501 A.2d at 836 (Eldridge, J., concurring in part, dissenting in part). Judge Eldridge criticized additionally Chief Judge Murphy’s opinion that "the express sanctioning of single sex clubs [did not] imposte] a burden upon the excluded sex, as long as the governmental action in theory equally sanctioned] discrimination by single sex facilities against persons of the other sex.” Burning Tree I, 305 Md. at 95, 501 A.2d at 838 (Eldridge, J., concurring in part, dissenting in part). Instead, Judge Eldridge opined that the ERA should be construed broadly "in accordance with its language and purpose,” cataloging several cases that, as we have stated in the majority opinion in the present case, dealt expressly with situations where the line was drawn clearly between men and women in terms of the burdens imposed and benefits conferred upon them. Burning Tree I, 305 Md. at 89, 501 A.2d at 835 (Eldridge, J., concurring in part, dissenting in part) (discussing Kuhn, Rand, Condore, Kline, and cases from other jurisdictions of similar import). Judge Eldridge found fault further in Chief Judge Murphy's “separate but equal” theory, based on the fact that, in his opinion, "[wjhile 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 [ERA] is narrowly limited to such situations.” Judge Eldridge determined finally that the primary purpose provision was severable from the anti-discrimination provision, Burning Tree I, 305 Md. at 102, 501 A.2d at 842.

The end result was a four member majority of concurring judges that the primary purpose provision constituted state action violative of the ERA. Because Chief Judge Murphy, joined by two other judges and Judge Rodowsky, were of the opinion that the primary purpose provision was not severable from the remainder of the anti-discrimination provision, the entire provision was invalidated.

Despite the dissent’s attempts here to turn Judge Eldridge's opinion into something it is not, the “narrow interpretation,” to which Judge Eldridge referred, pertained to Chief Judge Murphy’s proposed construction of the ERA requiring language of the challenged statute to single out, in express gender-specific terms, either "males” or "females.” Judge Eldridge's argument, in essence, was that, merely because the "primary purpose” provision did not refer either to "males” or "females” in gender-specific terms, that did not save the statute when it sanctioned total discrimination of one sex by members of the opposite sex. Burning Tree I, 305 Md. at 98-99, 501 A.2d at 835 (Eldridge, J., concurring in part, dissenting in part) ("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 significant state benefit. On the other hand, sexually integrated country clubs are generally precluded from discriminating on the basis of sex.”).

In sum, the opinions of Judges Eldridge and Rodowsky, which ultimately represented a plurality opinion of this Court, that the “primary purpose” provision was violative of the ERA, Burning Tree I, 305 Md. at 91 n. 5, 501 A.2d at 836 n. 5 ("In effect, the Court’s entire mandate in this case reflects the conclusions of only one member, Judge Rodowsky.”) (Eldridge, J., concurring in part, dissenting in part), was based on the fact that the statute allowed a club, whether comprised of all males or all females, to exclude all members of the opposite sex while still enjoying deferred assessments for the purposes of real estate taxation. Chief Judge Murphy’s "separate but equal” approach to interpreting the ERA, rejected by the plurality in Burning Tree I, differs substantially from the "equal application” theory relied on by the majority of the Court in the present case. While the plurality in Burning Tree I determined that a statute was violative of the ERA when it allowed, albeit in gender-neutral terms, the exclusion of the entire opposite sex by a uniform-gender club, we deal here with a statute that in no way singles out an entire group of persons based on sex. The “equal application” theory proposed here is not inconsistent with the plurality in Burning Tree I.

27 . Burning Tree I, 305 Md. at 100, 501 A.2d at 841 (Eldridge, J., concurring in part and dissenting in part) ("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.”) (citations omitted).

28 . Appellees rely additionally upon other cases containing reasoning similar to that in Loving. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (rendering unconstitutional a statute that made criminal the co-habitation between an African American and Caucasian person); Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948) (striking down California statute that prohibited interracial marriage).

Still other cases cited by Appellees, such as Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), clearly are distinguishable from the present case. In Shelley, the issue was whether a restrictive covenant prohibiting "persons of color” from real property ownership was violative of the Fourteenth Amendment to the U.S. Constitution. 334 U.S. at 4, 68 S.Ct. at 838, 92 L.Ed. 1161. Even though the defendants in that case argued that the covenant was applicable to members of all races (because the Court in previous cases was prepared to enforce similar restrictive covenants applicable to African Americans and Caucasians), Shelley, 334 U.S. at 21-22, 68 S.Ct. at 846, 92 L.Ed. 1161, the Court found no merit in the argument. We fail to see how a statute that so patently discriminated on the basis of race sheds any light on the present case.

Reliance upon Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) is likewise misplaced. In that case, the Supreme Court struck down a federal statute that provided benefits to families whose fathers had become unemployed, but denied those same benefits where the mothers lost their jobs. Califano, 443 U.S. at 79, 99 S.Ct. at 2657-58, 61 L.Ed.2d 382. In other words, the statute put an express sex qualification on the receipt of familial benefits. Califano, 443 U.S. at 79, 99 S.Ct. at 2658, 61 L.Ed.2d 382. The argument made in support of the statute was that, although it contained an express sex classification, it did not discriminate against women as a class because the entire family was impacted. Califano, 443 U.S. at 83-84, 99 S.Ct. at 2660-61, 61 L.Ed.2d 382. Although the Court rejected this argument, it did so on the basis that the statute was

part of the "baggage of sexual stereotypes,” Orr v. Orr, [440 U.S. 268, 283, 99 S.Ct. 1102, 1113], 59 L.Ed.2d 306 [(1979)], that presumes the father has the "primary responsibility to provide a home and its essentials,” Stanton v. Stanton, 421 U.S. 7, 10, 95 S.Ct. 1373, 1376, 43 L.Ed.2d 688 (1975), while the mother is the " 'center of home and family life.’ ” Taylor v. Louisiana, 419 U.S. 522, 534 n. 15, 95 S.Ct. 692, 699 n. 15, 42 L.Ed.2d 690 (1975).

Califano, 443 U.S. at 89, 99 S.Ct. at 2663, 61 L.Ed.2d 382. The distinction drawn by Family Law § 2-201 in the present case is not based on this sort of archaic stereotyping, and is therefore distinguishable from the federal statute at issue in Califano.

Appellees cite additionally Giffin and Burning Tree I in support of their argument. For the reasons stated earlier in this opinion, those cases also are distinguishable from the case at bar.

29 . See, e.g., Neifert v. Dep’t of Env’t, 395 Md. 486, 504, 910 A.2d 1100, 1111 (2006) ("Although Article 24 does not contain an express equal protection clause, this Court has held that the concept of equal protection is embodied within the Article.”); Frankel v. Bd. of Regents, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (internal citations omitted); Governor v. Exxon Corp., 279 Md. 410, 438 n. 8, 370 A.2d 1102, 1118 n. 8 (1977), aff'd, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).

30 . Although the Supreme Court in McLaughlin did not hold expressly that the latent purpose behind the cohabitation statute at issue was based on White Supremacy, the reasoning in that case is exceedingly similar to that employed in Loving. The Court held that

[b]ecause the section applies only to a white person and a Negro who commit the specified acts and because no couple other than one made up of a white and a Negro is subject to conviction upon proof of the elements comprising the offense it proscribes, we hold [the statute] invalid as a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment.

McLaughlin, 379 U.S. at 184, 85 S.Ct. at 284, 13 L.Ed.2d 222.

31 . Judge Raker, in her Concurring and Dissenting Opinion, apparently concurs with the foregoing analysis and conclusion that the Maryland statute is not violative of Article 46 (the Equal Rights Amendment) of the Maryland Declaration of Rights.

32 . Article 24 of the Declaration of Rights provides

[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

33 . As delineated previously, there is no express equal protection provision found within Article 24. Article 24 "embodies[, however,] the concept of equal protection of the laws to the same extent as the Equal Protection Clause of the Fourteenth Amendment.” Murphy, 325 Md. at 353-54, 601 A.2d at 107-08 (citations omitted); Neifert v. Dep't of Env’t, 395 Md. 486, 504, 910 A.2d 1100, 1111 (2006); Frankel v. Bd. of Regents, 361 Md. 298, 312-13, 761 A.2d 324, 332 (2000) (internal citations omitted); Bd. of Supervisors of Elections of Prince George’s County v. Goodsell, 284 Md. 279, 293 n. 7, 396 A.2d 1033, 1040 n. 7 (1979); U.S. Mortgage Co. v. Matthews, 167 Md. 383, 395, 173 A. 903, 909 (1934), rev’d on other grounds, 293 U.S. 232, 55 S.Ct. 168, 79 L.Ed. 299 (1934) (determining that Article 24 should be construed at least to the extent of the Fourteenth Amendment). Thus, even though the Fourteenth Amendment and Article 24 are independent of each other and capable of being interpreted differently, U.S. Supreme Court cases construing the Fourteenth Amendment are highly persuasive with regard to our interpretation of Article 24. Murphy, 325 Md. at 354, 601 A.2d at 108; Waldron, 289 Md. at 705, 426 A.2d at 941 (citations omitted); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597, 640, 458 A.2d 758, 781 ("[D]ecisions of the Supreme Court interpreting the Equal Protection Clause of the federal constitution are persuasive authority....”).

34 . The criteria by which we determine whether a statute draws a "suspect classification” or infringes on a "fundamental” right are discussed infra.

35 . For an in-depth discussion of whether a particular statute interferes “significantly’' with a fundamental right, see Koshko v. Haining, 398 , 921 A.2d 171, 186-91 (2007) (holding that the Maryland grandparent visitation statute worked a "direct and substantial interference" upon parental rights with respect to the court-ordered visitation with their children by the grandparents). See also Hornbeck, 295 Md. at 653, 458 A.2d at 788 (holding that "the heightened review test is not applicable in [that] case, because ... there has been no significant interference with, infringement upon, or deprivation of the underlying right to take advantage of a [right to education]”) (emphasis added).

36 . Although this Court has articulated over the years several derivations of the "rational basis” titling of this standard, the application of the constitutional standard has been the same across all derivations.

37 . As explained in Murphy, 325 Md. at 358-60, 601 A.2d at 109-10, the Supreme Court described these intermediate classifications in various ways over the years, ranging from subjecting the statute to “heightened scrutiny,’’ see Plyler v. Doe, 457 U.S. 202, 218 n. 16, 102 S.Ct. 2382, 2395 n. 16, 72 L.Ed.2d 786 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976); Mississippi University for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. 3331, 3335, 73 L.Ed.2d 1090 (1982), to application of “rational basis with bite.” See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Hooper v. Bernalillo County Assessor, 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985); Williams v. Vermont, 472 U.S. 14, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985); Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). See also D. Stewart, A Growing Equal Protection Clause?, 71 A.B.A. J. (October) 108, 112 (1985) (quoting Victor Rosenblum, G. Pettinga, Rational Basis With Bite: Intermediate Scrutiny by Any Other Name, 62 IND. L.J. 779 (1987)). Although referred to by different names and employing differently phrased levels of constitutional review, the practical differences between the two appear slight.

38 . Maryland, in light of the ERA, applies a strict scrutiny standard to statutes carving classifications based on sex whereas the Supreme Court applies intermediate scrutiny to sex-based governmental action. There are other areas, however, to which the Supreme Court has applied this intermediate level of scrutiny. Those specific areas triggering heightened scrutiny will be discussed infra.

39 . Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 ("[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility ....'”) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768 (1972)); see also Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L.Rev. 503, 507, 507 n. 11 (1994) ("[I]mmutability is not a requirement but a factor.”) (citing Bowen v. Gilliard, 483 U.S. 587, 602-03, 107 S.Ct. 3008, 3018, 97 L.Ed.2d 485 (1987)); Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d 527).

40 . United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84, 82 L.Ed. 1234 (1938); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).

41 . Mass. Bd. of Retirement, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d 520 (quoting San Antonio School District, 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d 16).

42 . Mass. Bd. of Retirement, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d 520; Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d 583 (determining that sex-based classifications trigger heightened scrutiny, and that "the sex characteristic frequently bears no relation to ability to perform or contribute to society”). Even though Article 46 mandates that we apply strict scrutiny to gender-based classifications, this factor nonetheless is useful in determining whether a particular classification warrants heightened scrutiny.

43 . E.g., Loving, 388 U.S. at 11, 87 S.Ct. at 1823.

44 . Graham, 403 U.S. at 372, 91 S.Ct. at 1852, 29 L.Ed.2d 534.

45 . Oyama v. California, 332 U.S. 633, 644-46, 68 S.Ct. 269, 274-75, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944).

46 . Appellees cite Tanner v. Oregon, 157 Or.App. 502, 971 P.2d 435, 447 (1998), and Children’s Hospital & Med. Ctr. v. Bonta, 97 Cal.App.4th 740, 118 Cal.Rptr.2d 629, 650 (2002), as authorities finding sexual orientation to be a suspect basis for classification. In Tanner, the Oregon Court of Appeals stated:

[W]e have no difficulty concluding that [lesbian and gay people] are members of a suspect class. Sexual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice.

Tanner, 971 P.2d at 447.

Reliance on these two cases is misplaced because both are distinguishable from the instant case or unpersuasive. Tanner involved an analysis pursuant to Oregon’s privileges and immunities clause, and does not compel a similar finding under our equal protection jurisprudence. See Andersen, 138 P.3d at 975 ("The [privileges and immunities clause] analysis bears little resemblance to the analysis that applies under the equal protection clause.”). Children’s Hospital likewise is distinguishable. While the California appellate court in that case stated that sexual orientation is a suspect classification subject to strict scrutiny, the issues did not pertain even remotely to gay and lesbian equal protection. Rather, the case involved a constitutional challenge to disparate reimbursement between in-state and out-of-state hospitals providing services under California's Medi-Cal system. The court tendered its suspect classification observation only in passing and without the benefit of any sort of supporting authority. Id. (distinguishing Children’s Hospital on the ground that it stated "only in passing, without authority, that the issue before [the California intermediate appellate court] did not relate to a suspect class 'such as race or sexual orientation.’ ”).

47 . We note that some cases upon which Appellants and other jurisdictions’ decisions have relied, were based, in part, on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). See e.g., High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (1990) (stating that, because sexual intimacy between same-sex partners can be criminalized, sexual orientation can not be a suspect or quasi-suspect classification). We do not associate ourselves with the reasoning employed in those portions of the opinions, and they carry no precedential value to the extent of their reliance on Bowers. Other portions of those cases upon which we rely, however, contain reasoning independent of Bowers and are persuasive in our analysis of the equal protection issue before us.

That Bowers was overturned by Lawrence, furthermore, does not compel recognition of sexual orientation as a suspect classification, as Appellees suggest. As our judicial peers in other jurisdictions have noted, the Court in Lawrence evaluated the Texas sodomy law on the basis that it did not comport even with rational basis review, but did not evaluate the statute in such a way that declared gay, lesbian, and bisexual persons as suspect classifications. See In re Kandu, 315 B.R. at 143-44; Andersen, 138 P.3d at 975-76.

48 . Appellees cite to several annual reports compiled by the Maryland Commission on Human Relations documenting yearly total reported instances of hate crimes and discrimination in the areas of employment, public accommodations, and housing. Of the total 511 hate-related incidents reported to the Commission for the 2006 fiscal year, 350 were race-based, while 37 were based on sexual orientation. Md Comm'n on Human Relations, 2006 Annual Report 18 (2006), at http://www.mchr. state.md.us/annrep2006.pdf. We find equally important, however, other statistics reported by the Commission in recent Annual Reports. In the 2005 Annual Report, the Commission included a table displaying the total reported instances of discrimination in housing, employment, and public accommodations according to various characteristics, including race, sex, sexual orientation, age, retaliation, disability, religion, familial status, and national origin. Md. Comm’n on Human Relations, 2005 Annual Report 13-15 (2005), at http://www.mchr.state.md.us/2005 imalannualfeport.pdf. The report states that there were 25 alleged instances of discrimination based on sexual orientation, compared to 117 cases based on age and 99 cases based on disability. Neither of these classifications are considered suspect yet, either under Supreme Court or this Court’s precedent.

49 . For an in-depth discussion of the legislative and regulatory developments in Maryland addressing discrimination based on sexual orientation, see generally Something Old, Something New, Something Borrowed, Something Long Overdue: The Evolution of a “Sexual Orientation-Blind" System in Maryland and the Recognition of Same-Sex Marriage, 35 U. Balt. L.Rev. 73, 75-92 (2005). While the goal of the article apparently was to highlight the legal landscape in Maryland regarding sexual orientation, and its probable amenability to the recognition of same-sex marriage, the trends presented there illustrate the evolving political influence that gay, lesbian, and bisexual individuals are exercising. See also Amer. Assoc, of Law Libraries, Social Responsibilities Special Interest Section, Standing Committee on Lesbian and gay Issues, Introduction of Sexual Orientation and the Law: A Research Bibliography Selectively Annotating Legal Literature Through 2005, at XXV("In the last twelve years, the exponential increase in judicial opinions and legislation regarding [Lesbian, Gay, Bisexual, and Transsexual] issues has been accompanied by a growth in favorable decisions and legislative enactments.").

50 . Md.Code (Supp.2004), art. 49B, §§ 5(b), 8(a).

51 . Md.Code (2003), art. 49B §§ 16; Id. at § 14 ("It is hereby declared to be the policy of the State of Maryland, in the exercise of its police power for the protection of the public safety, public health and general welfare, for the maintenance of business and good government and for the promotion of the State’s trade, commerce and manufacturers to assure all persons equal opportunity in receiving employment and in all labor management union relations regardless of ... sexual orientation.”); Md. Regs.Code tit. 1, § 01.01.1995.19(I)(A)(11) (2004) (prohibiting expressly in Maryland discrimination in state employment on the basis of sexual orientation); see also 35 U. Balt. L.Rev. 73, supra, at 87 (citing Acanfora v. Bd. of Educ., 359 F.Supp. 843, 853 (D.Md.1973) (holding that the sexual orientation of a teacher is not a proper grounds to deny employment), aff'd on other grounds, 491 F.2d 498 (4th Cir. 1974)).

52 . Md.Code (2003), art. 49B, §§ 22-24; Id. at § 19 ("It is the policy of the State of Maryland to provide for fair housing throughout the State of Maryland, to all its citizens, regardless of ... sexual orientation.”).

53 . Md. Regs.Code tit. 13A, § 01.04.03 ("All students in Maryland’s public schools, without exception and regardless of ... sexual orientation ... have the right to educational environments that are: A. Safe; B. Appropriate for academic achievement; and C. Free from any form of harassment.”).

54 . The statutes and regulations that follow in the main text are extracted from the briefs supplied by the parties and amici, and constitute only a portion of the anti-discrimination measures found within the State of Maryland’s statutes and regulations. For a full description of the various state and local enactments that prohibit discrimination on the basis of sexual orientation, see 35 U. Balt. L.Rev. 73, supra, at 86-90, 86 n. Ill (cataloging extensively Maryland regulations that eliminated sexual orientation discrimination in the administration of numerous public assistance programs and community development initiatives, and that prohibit such discrimination in the regulation of various business occupations and professions throughout the State).

55 . For a comprehensive list of Supreme Court, other Federal and State appellate court cases adjudicating gay and lesbian rights from 1981 to 2000, see Daniel R. Pinello, Gay Rights and American Law 167-213 (2003).

56 . The irony is not lost on us that the increasing political and other successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statute under review.

57 . No party addresses in its brief the immutability of sexual orientation and the implications of an answer to that query in determining the correct level of constitutional review to be applied to Family Law § 2-201. The issue of the immutability of sexual orientation, however, is the subject of a multitude of recent studies and nationwide debate. See J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives Gen’l Psychiatry 1089, 1093 (1991) (studying the similarities in sexual orientation between twin, non-twin, and adopted siblings, and concluding that identical twins are more likely than other types of siblings to have a similar homosexual orientation); Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu & Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X Chromosome and. Male Sexual Orientation, 261 Science 321 (1993) (finding evidence that there is a connection between male sexual orientation and a particular gene found on the X chromosome and suggesting that male sexual orientation may be linked to maternal relatives); Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 Science 1034-37 (1991) (finding that the interstitial nuclei of the anterior hypothalamus (INAH) 3, one of four cell groups found within the anterior hypothalamus region of the brain, is twice as large in heterosexual men as compared to homosexual men, and concluding that, at least in men, a heterosexual brain is structurally dimorphic from a homosexual brain). These reports, considered three of the most important in the field, however, are not without challenge. Their imperfections and limitations are well-documented. See generally Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan L.Rev. 503, 529-46 (1994) (reviewing the limitations and flaws within the leading studies on the link between biology and sexual orientation); Ingrid Wickelgren, Discovery of the “Gay Gene” Questioned, 284 Science 571 (1999); Eliot Marshall, NIH’s “Gay Gene” Study Questioned, 268 Science 1841 (1995) . Other studies have found contrary indicia and have concluded that culture and environment, at least in part, play a factor in the development of an individual’s sexual orientation. See, e.g., Dean H. Hamer, et ah, Genetics and Male Sexual Orientation, 285 Science 803a (1999) (“Sexual orientation is a complex trait that is probably shaped by many different factors, including multiple genes, biological, environmental, and socio cultural influences.”); J. Michael Bailey, Michael P. Dunne, Nicholas G. Martin, Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample, 78(3) J. of Personality & Soc. Psychol. 524 (2000). Even the authors, most notably Simon LeVay, have indicated that the biological studies do not establish that biology is the primary indicator of sexual orientation. LeVay, supra, at 1036 ("The discovery that a nucleus differs in size between heterosexual and homosexual men illustrates that sexual orientation in humans is amenable to study at the biological level, and this discovery opens the door to studies of neurotransmitters or receptors that might be involved in regulating this aspect of personality. Further interpretation of the results of this study must be considered speculative. In particular, the results do not allow one to decide if the size of INAH 3 in an individual is the cause or the consequence of that individual’s sexual orientation, or if the size of INAH 3 and sexual orientation co-vaiy under the influence of some third, unidentified variable.”). We by no means are able to form any sort of merits-driven conclusion based on the forgoing studies. We note only that there does not appear to be a consensus yet among "experts” as to the origin of an individual’s sexual orientation.

Based on our research, no studies currently available to the public have been subjected to rigorous analysis under the Frye-Reed standard in order to determine the scientific reliability of the methodology, principles, and resultant conclusions of the foregoing studies for the purposes of evidentiary admissibility. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923) (requiring that expert testimony is admissible only when it is determined by the trial judge that the deduction is generally accepted in the particular field in which it belongs); Reed v. State, 283 Md. 374, 389, 391 A.2d 364, 373 (1978) (adopting in the State of Maryland the "general acceptance” rule annunciated in Frye); Hutton v. State, 339 Md. 480, 494 n. 10, 663 A.2d 1289, 1295 n. 10 (1995); see Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 327, 923 A.2d 939, 946 (2007); see also Committee Note to Md. Rule 5-702 ("[Rjequired scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.”). Nor were we able to locate any analyses of the studies under the Daubert/Kumho Tire/Joiner standard for admissibility applied in the federal courts and certain of our sister state court systems. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), superceded by Fed.R.Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 1174-75, 143 L.Ed.2d 238 (1999) (holding that the basic gate-keeping obligations imposed by the U.S. Supreme Court, in Daubert, upon a federal trial judge applies not only to "scientific” testimony, but all expert testimony); General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 517-18, 139 L.Ed.2d 508 (1997) (holding that a trial judge's ruling regarding admissibility of scientific evidence is reviewable only for an abuse of discretion).

58 . Carey v. Population Services Int'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) ("The decision whether or not to beget or bear a child is at the very of this cluster of constitutionally protected choices.”); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (invalidating a Texas law that prohibited abortions on the basis that a woman has a Due Process right to make fundamental decisions affecting her body).

59 . Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

60 . Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (invalidating a Texas statute that criminalized private sexual intimacy by consenting same-sex couples).

61 . Eisenstadt v. Baird, 405 U.S. 438, 454, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (extending the reasoning employed in Griswold to invalidate a law under the Fourteenth Amendment that prohibited the distribution of contraceptive devices to unmarried persons).

62 . Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 2851-52, 111 L.Ed.ld 224 (1990) (holding that every person possesses a constitutionally protected right to withdraw from unwanted life-saving medical treatment).

63 . It is beyond doubt that the right to marry is a fundamental liberty interest protected by the Constitution. See e.g., Turner v. Safley, 482 U.S. 78, 95, 96-97, 107 S.Ct. 2254, 2265, 2265-66, 96 L.Ed.2d 64 (1987) (holding unconstitutional a Missouri regulation that prohibited inmates from marrying, absent approval by the prison superintendent after a finding that there were compelling reasons for the marriage, even though the right to marry, as with many other constitutional rights, is restricted substantially as a result of incarceration); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978) ("[T]he right 'to marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause ....”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971) ("[M]arriage involves interests of basic importance in our society.”); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 1113-14, 86 L.Ed. 1655 (1942) (describing marriage as ''fundamental to the very existence of the [human] race.”); see also Skinner, 316 U.S. at 541, 62 S.Ct. at 1113-14, 86 L.Ed. 1655 ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”).

64 . Appellees rely additionally on Griswold, 381 U.S. at 486, 85 S.Ct. at 1682, 14 L.Ed.2d 510, and Eisenstadt, 405 U.S. at 453-54, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) for the proposition that the Supreme Court looks to what was enjoyed historically rather than who historically enjoyed it. They reason that in Eisenstadt the Court did not rely on history and tradition to conclude that unmarried couples were entitled to the right of sexual privacy and the use of contraceptives. Overlooking the fact that the case did not involve directly the right to marriage and that it was decided on equal protection grounds, Eisenstadt, 405 U.S. at 454, 92 S.Ct. at 1038, 31 L.Ed.2d 349, we nevertheless deem it distinguishable. As with the other cases cited supra, the decision was based on the right to produce children. The Court in Eisenstadt reasoned that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U.S. at 453-54, 92 S.Ct. at 1038, 31 L.Ed.2d 349 (citations omitted). The ability to bear or beget children is inherently a characteristic requiring at some level the participation of a man and a woman (at least until science demonstrates otherwise).

65 . We note, however, that this police power is not absolute. In regards to social and economic regulation, the Legislature may,

in the exercise of what is usually called its police power, [ ] regulate or restrict the freedom of the individual to act, when such regulation or restraint is essential to the protection of the public safety, health, or morals. That power, however, is itself subject to the restraints imposed by constitutions which the whole people have adopted and approved as the supreme law of the land.

(Thus), while the legislature may, in the proper exercise of the State's police power, classify the persons to whom a prescribed regulation found to be necessary to the public welfare may apply ..., or determine whether certain classes of acts may be regulated ..., nevertheless the exercise of the power must have some real and substantial relation to the public welfare ..., and the legislature may not, under the cloak of the power, exercise a power forbidden by the Constitution, or take away rights and privileges expressly guaranteed by it.

Waldron, 289 Md. at 718-19, 426 A.2d at 948-49 (quoting Dasch v. Jackson, 170 Md. 251, 262-64, 183 A. 534, 538-39 (1936)). We note that marriage is subject to the police power of the State not to employ the sort of circular reasoning urged by the State that Family Law § 2-201 is constitutional automatically, but rather to illustrate that the General Assembly and this Court have not always couched the right to marry in its most abstract sense.

66 . Unfortunate dicta appears in Henderson declaring void any marriage within Maryland between Caucasian and African-American persons. 199 Md. 449, 459, 87 A.2d 403, 409 (1952). This objective is obviously invalid in light of the Supreme Court’s subsequent holdings in Loving. The point of our allusion here to Henderson, however, is as an illustration that the State of Maryland may not be compelled to recognize a marriage performed in another state if that foreign marriage is repugnant to Maryland’s public policy (interracial marriage was against the public policy of Maryland at the time Henderson was decided). Id. The discredited portion of Henderson does not affect the continuing and vital principle that marriage is subject to the police power of the State.

67 . 1 U.S.C.A. § 7 (1996) ("In determining the means of any Act of Congress, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.”); Alaska Const. art. I, § 25; Ark. Const. amend. 83, § 1; Ga. Const. art. I, § IV, ¶¶1; Haw. Const. art. I, § 23; Kan. Const. art. XV, § 16; Ky. Const. § 233a; La. Const. art. XII, § 15; Mich. Const, art. I, § 25; Miss. Const art. 14, § 263A; Mo. Const, art. I, § 33; Mont Const, art. XIII, § 7; Neb. Const, art. I, § 29; Nev.Const. art. I, § 21; N.D. Const, art. XI, § 28; Ohio Const, art. XV, § 11; Okla. Const, art. II, § 35; Or. Const art. XV, § 5a; Tex. Const art. I, § 32; Utah Const, art. I, § 29; Ala.Code § 30-1-19; ArizRev.Stat. § 25-101; Cal. Fam.Code § 308.5 (West); Colo.Rev.Stat. § 14-2-104; Conn. Gen.Stat. § 45a-727a; Del.Code Ann. tit. 13, § 101; Fla. Stat. § 741.212; Idaho Code § 32-201 (Michie); 750 III. Comp. Stat. 5/201, 5/212; Ind.Code § 31-11-1-1; Iowa Code § 595.2; Me.RevStat. Ann. tit. 19-A, §§ 650, 701; Minn. Stat. §§ 517.01, 517.03; N.H. Rev. Stat. Ann. §§ 457:1, 457:2; N.J. Stat. Ann. 37:1-1, -3; N.M. Stat. Ann. § 40-1-18 (Michie); N.Y. Dom. Rel. Law §§ 51-1, 51-1.2 (McKinney); 23 Pa. Cons.Stat. §§ 1102, 1704; R.I. Gen. Laws §§ 15-1-1, 15-1-2, 15—2—1; S.C. Code Ann. § 20-1-15 (Law.Co-op.); S.D. Codified Laws § 25-1-1 (Michie); Tenn.Code Ann. § 36-3-113; Vr. Stat. Ann. tit. 15, § 8; VaCode Ann. §§ 20-45.2, 20-45.3 (Michie); Wash. Rev.Code § 26.04.020(l)(c); W. VaCode § 48-2-104(c); Wis. Stat §§ 765.001(2), 765.01; Wyo Stat Ann § 20-1-101 (Michie).

68 . Judge Raker agrees that rational basis review is the appropriate standard to apply to analysis of Appellees’ Article 24 argument (Raker dissent, op. at 328-29, 932 A.2d 637-38), whether viewed in support of a claim that gay and lesbian couples should have a right to marry in Maryland or, as Judge Raker supplies for Appellees, an alternate claim of relief that they should be granted civil union, domestic partners registration, or some other relief short of marriage.

69 . Judge Battaglia’s dissent, in response to the State’s assertion that it has an interest in marriage “as an institution of transcendent importance to social welfare,” posits that, “until the recent advances in assisted reproductive technology, there was a close[,] albeit imperfect fit[,] between opposite-sex marriage and the inherent biological fact that reproduction of our species could result only from the sexual union of a man and a woman.... The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today.” Judge Battaglia’s Dissent, op. at 418, 932 A.2d at 691. In that vein, the dissent árgues that

[t]he phenomena of assisted reproduction and same sex marriage are so new and radical that there exists no evidence thus far to support or refute the asserted link [between reproduction and the State’s asserted interest in marriage as an “institution of transcendent importance to social welfare”] and its concomitant external effects. Thus far, courts that have weighed this argument favorably have done so under rational basis review. The State’s contention that the same-sex marriage ban arises organically from the nature of marriage itself, and that the much later codification accomplished by [Family Law § ] 2-201 merely clarifies society’s compelling interest in "the historic family unit as a mechanism for protecting the progeny of biological unions,” actually asserts the State interest in promoting an orderly, stable society. On the present state of the record, I believe neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.

Judge Battaglia's Dissent, op. at 420, 932 A.2d at 692-93 (citations omitted). As such, Judge Battaglia and Chief Judge Bell would remand, pursuant to Maryland Rule 8-604(d) ("If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court”), in order to conduct an evidentiary hearing regarding what it refers to as "the State’s unrebutted contention regarding the broad societal interest in retaining traditional marriage.” Id.

In ordering a remand for the purposes of additional evidentiary hearings, a Court exercising appellate jurisdiction must explain expressly its reasons for doing so. Md. Rule 8-604(d)(l). The problem with remanding in the present case lies in the fact that neither the record nor the briefs of the litigants reflect a dispute of material fact of the kind imagined by the dissent. Although Appellees argue generally that the distinction made by Family Law § 2-201 is over-inclusive and, at the same time, under-inclusive, they do not point to an evidentiary conflict necessitating remand for the purpose of an evidentiary hearing and resolution of a factual dispute. Appellees instead assert that they are entitled to summary judgment by virtue of what they deem to be a flaw fatal in the constitutionality of the marriage statute.

If this Court were to accept the reasoning of Judge Battaglia’s dissent and reverse the grant of summary judgment, pursuant to Maryland Rule 2-501 (a), (f) (providing that a motion for summary judgment may be granted only when there exists on the record no genuine disputes of material facts and the movant is entitled to judgment as a matter of law), we essentially would be recognizing in the record an illusory dispute of fact fatal to the grant of summary judgment when one does not exist. This we should decline to do. See Haas v. Lockheed Martin Corp., 396 Md. 469, 478, 914 A.2d 735, 740 (2007) (holding that, when reviewing a circuit court’s grant of summary judgement, ”[w]e consider, de novo, first, whether a material fact was placed in genuine dispute, thus requiring a trial, and ... whether the Circuit Court was legally correct in granting summary judgment.”) (citing Livesay v. Baltimore County, 384 Md. 1, 9, 862 A.2d 33, 38 (2004)) (emphasis added); Neifert v. Dep’t of Env’t, 395 Md. 486, 910 A.2d 1100 (2006) ("In reviewing a grant of summary judgment, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.”) (citing Livesay, 384 Md. at 9, 862 A.2d at 38) (emphasis added).

70 . Because we find that the State's interest in fostering procreation sufficient to sustain Family Law § 2-201, we need not address the alternative, and rather circular, justification offered by Appellants based on the State’s interest in maintaining its police power over the social institution of marriage.

71 . Judge Raker’s dissent, which follows closely the legal reasoning employed by the New Jersey Supreme Court in Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J.2006), essentially rests on two strata: (1) the Due Process Clause of Article 24 of the Maryland Declaration of Rights; and (2) the Equal Protection Clause embodied in Article 24. See, e.g., State v. Good Samaritan Hospital of Md., Inc., 299 Md. 310, 326 n. 7, 473 A.2d 892, 900 n. 7 (1984) ("The Maiyland Constitution does not contain an express equal protection clause; the concept of equal protection is, however, embodied in Article 24 of the Declaration of Rights.”) (citing Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 616, 458 A.2d 758 (1983)).

In line with the majority opinion here, Judge Raker’s dissent posits initially that, even though Maryland’s citizenry is a diverse and tolerant group, and there exists in Maryland precedent and statutory authority that evidence increasing social acceptance of homosexual persons, the same-sex couples do not have a fundamental right to marry. Despite the absence of a fundamental right of same-sex couples to marry, however, the dissent reasons additionally that Article 24’s equal protection guarantee mandates that same-sex couples otherwise be afforded the various rights and benefits currently available under Maryland law only to opposite-sex couples. Dissent op. at 351-52, 932 A.2d at 651; see also Lewis, 908 A.2d at 200. In that vein, the dissent concludes essentially that the General Assembly must either amend Family Law § 2-201 to allow same-sex couples to marry, or create a substitute scheme under which same-sex couples may enjoy the same rights and benefits, as well as bear the same obligations, as married opposite-sex couples. Judge Raker's Concurring and Dissenting Opinion, op. at 356, 932 A.2d at 654; see also Lewis, 908 A.2d at 200.

We disagree with Judge Raker’s dissent for, other than the reasons advanced in the body of the majority opinion, the simple reason that Appellees here expressly disavowed any present desire to obtain the alternate relief she proposes. Ordinarily in Maryland, a court, whether trial or appellate, does not fashion relief where the record reflects that the parties to be benefitted repudiated expressly the proposed relief.

Appellees, in this record, cited a number of "intangible protections of marriage for themselves and especially for their children.” One such benefit relates to the sense of dignity that would accompany recognition of same-sex marriage in Maryland. Appellees refer, not only to the dignity that may be felt by the same-sex couples themselves, but also to their children in that the children, if their same-sex parents were able to marry, would "feel proud of who they are and where they come from.” One Appellee stated, in support of Appellees’ motion for summary judgment, that "[t]he legal sanction of [their] relationship through the institution of civil marriage would greatly diminish the stigma that [their] daughters will otherwise bear, simply because their parents are a same-sex couple.” Another Appellee noted that she "suffer[s] dignitary harm on account of the fact that the law effectively requires [her] to choose between [her] life in Maryland and [her] relationship with [her partner], simply because [they] are not recognized as spouses.”

Several Appellees iterated, in support of their motion for summary judgment, that the grant of benefits of marriage without actually recognizing same-sex marriage only would perpetuate the dignitary harm that they now claim to experience. Charles Blackburn wrote that “anything short of civil marriage for same-sex couples would perpetuate second-class citizenship for lesbian and gay families. While we respect the freedom of religious organizations to decline to perform religious wedding ceremonies for same-sex couples, we believe that such religious freedom cannot prevent our state from recognizing our relationship. We believe that, rather than undermining the institution of marriage, a commitment such as our[s] honors it. We believe that we, too, are entitled to the dignity and respect that marriage bestows.” Steven Palmer wrote that he and his partner "[s]till risk discrimination fostered by the stigmatizing message about the worth of [their] relationship that [their] government sends to [the] community by excluding [them] from marriage.” Finally, Patrick Wojahn wrote that "[m]ost of all, [he and his partner] wish for [their] relationship to enjoy that same social recognition as well as legal recognition as the relationships of [their] heterosexual peers. [Their] relationship can attain this level of respect only through the institution of marriage.”

Thus, notwithstanding the statements of Appellees' counsel at oral argument that Family Law § 2-201 denies same-sex couples that “full citizenship that is constitutionally guaranteed to them, no less than all other Marylanders,” (emphasis added), Appellees appear to have disavowed, both impliedly and expressly, the alternate remedy Judge Raker would offer. Her dissent attempts to bestow upon Appellees the benefits of marriage, without actually granting them the right to marry, proposing exactly that which Appellees in the present case expressly chose not to seek in this litigation.