Did Maryland's country club tax break ban men-only tee times and grill rooms, or just discrimination in granting membership itself?

Plain-English summary

A state senator asked the Attorney General, in 1989, whether the antidiscrimination condition attached to Maryland's country club property tax preference reached only a club's decision to grant or deny membership, or whether it also covered how a club treated members once admitted, things like all-male tee times, men's-only grill rooms, and single-sex tournaments. The Attorney General concluded that the statute, TP §8-214(a), covered both: relying on the Court of Appeals' recent decision striking down a "periodic discrimination" exemption on Equal Rights Amendment grounds, the opinion found that the antidiscrimination ban applied to members' privileges and use of club facilities, not merely to the initial grant of membership, so practices like men-only tee times or grills were themselves prohibited if a club wanted to keep its tax break.

Currency note

This opinion was issued in September 1989 and interpreted the Tax-Property Article as it existed at that time, shortly after the Court of Appeals decided State v. Burning Tree Club, Inc. in March 1989. Maryland's tax preference statutes for country clubs, and the specific section numbers discussed here, may have been renumbered or amended since. This page is a historical record of how the Attorney General read the scope of the antidiscrimination condition in 1989. It describes what the opinion concluded at the time and is not a statement of current Maryland tax or antidiscrimination law governing country clubs. Verify the current statute directly before relying on anything here.

Common questions

Did Maryland's 1989 country club tax rules ban men-only golf tee times and grill rooms? Yes. The opinion concluded that TP §8-214(a)'s antidiscrimination condition applied to members' privileges and use of club facilities, so practices like reserving tee times, grills, or card rooms for one sex only were themselves violations, not just outright denial of club membership.

Were single-sex golf tournaments also banned by this ruling? Not entirely. The opinion agreed with an earlier Assistant Attorney General letter that occasional male or female member-guest tournaments, particularly those played under a recognized golf association's rules, remained permissible, even though a general policy of excluding one sex from facilities was not.

What court decision drove this 1989 conclusion about country club discrimination? State v. Burning Tree Club, Inc., in which the Court of Appeals struck down, under Maryland's Equal Rights Amendment, a statutory exemption that had let clubs discriminate by sex on certain days or at certain times, while upholding the antidiscrimination ban itself; the opinion read that decision's language about discrimination in "membership, facilities, dues, etc." as confirming the ban reached facility use, not just membership decisions.

Background and statutory framework

Maryland's country club property tax preference, available under TP §8-212 through §8-218 to clubs maintaining a clubhouse and restricting facilities primarily to members, family, and guests, conditioned that preference on a club not "allow[ing] or practic[ing] discrimination based on race, color, creed, sex or national origin in granting membership or guest privileges" under TP §8-214(a). When the 1974 law first created this scheme, it exempted clubs "operated with the primary purpose ... to serve or benefit members of a particular sex," an exemption the Court of Appeals struck down in Burning Tree Club v. Bainum (1985); the General Assembly responded in 1986 by repealing that exemption but adding a narrower "periodic discrimination" exemption letting clubs discriminate on certain days or at certain times, an exemption the Court struck down under the state's Equal Rights Amendment in State v. Burning Tree Club, Inc. (1989).

The senator's question was whether, with the periodic-discrimination exemption now gone, the remaining antidiscrimination ban reached only membership decisions or also a club's internal operating rules. The opinion answered that it reached both, pointing to the Court of Appeals' own language in Burning Tree that the ban applied to "membership, facilities, dues, etc." and to Chief Judge Murphy's discussion in Bainum describing the statute's "net effect" as prohibiting a club from continuously excluding members or guests, based on sex, from using some part of the club's facilities or services. The opinion reasoned that reading the statute to permit facility-level discrimination, after the Court had eliminated the very exemptions that had allowed it, would make no sense, particularly since qualifying for the tax preference itself required maintaining a "clubhouse" and "facilities" under TP §8-212. The opinion also drew on the 1986 legislative history, in which a lobbying group opposing repeal of the periodic-discrimination exemption had itself catalogued exactly the practices, men-only or ladies-only tee times, grills, card rooms, and sport-specific reserved times, that repeal would prohibit, treating that catalogue as confirming rather than undercutting the statute's reach. The opinion agreed, however, with an Assistant Attorney General's earlier guidance letter that occasional single-sex member-guest tournaments, especially those played under a recognized golf association's rules, remained permissible even though a standing policy of sex-based exclusion from facilities was not.

Citations and references

Statutes:

• TP §8-214(a), the antidiscrimination condition attached to the country club property tax preference
• TP §8-212, the qualification requirements (a clubhouse and member-restricted facilities) for the tax preference
• Chapter 870, Laws of Maryland 1974, the original enactment creating the tax preference and its first (later invalidated) sex-based exemption
• Chapter 334 of the Laws of Maryland 1986, repealing the primary-purpose exemption invalidated in Bainum

Cases:

• State v. Burning Tree Club, Inc., 315 Md. 254, 294, 554 A.2d 366 (1989), the Court of Appeals decision invalidating the "periodic discrimination" exemption under Maryland's Equal Rights Amendment and describing the antidiscrimination ban as reaching "membership, facilities, dues, etc."
• Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985), the earlier Court of Appeals decision invalidating the primary-purpose exemption and describing the statute's effect as barring continuous facility-based exclusion by sex

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 48-52 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ASSESSMENTS & TAXATION

Country Club Preference - Scope Of Ban On Discrimination - Antidiscrimination Provision Applies To Members' Privileges As Well As To Membership Itself

September 29, 1989

The Honorable Laurence Levitan
Senate Of Maryland

You have requested our opinion on the proper interpretation of §8- 214(a) of the Tax-Property Article ("TP" Article), which prevents a country club receiving a tax preference under TP §8-212 through §8- 218 from "allow[ing] or practic[ing] discrimination based on race, color, creed, sex or national origin in granting membership or guest privileges." Specifically, you have asked whether this ban on discrimination applies to "internal operations, housekeeping rules, and practices approved by the membership" of a club, such as all-male tee times, men's grills, and men's and women's tournaments. Essentially, you have asked whether the law applies only to discriminatory denials of membership and not to any "privilege" of membership or use of club facilities.1

On August 1, 1989, Assistant Attorney General Kaye Brooks Bushel, on behalf of a team of State lawyers involved in investigating clubs to determine compliance with §8-214(a), wrote a number of clubs stating:
Under the law in Maryland, you may not continue to reserve club facilities for exclusive use by one sex or the other. Thus, it is not permissible to have Men's Day or Ladies' Day on the golf course. This does not mean, however, that you may not reserve course time under the auspices of a Member's Day and a Spouse's Day, so long as these designations are not intended to promote discrimination. If, on Spouse's Day, only women happen to play golf, there would be no violation of the law as long as there was no club policy to exclude men from the course on that day. Furthermore, it is impermissible for a club to establish or continue a policy that permits preferred tee times based on sex. A permitted practice is an occasional female or male member-guest tournament, particularly when played under the rules of a recognized golf association.

(continued...)

In our opinion, TP §8-212(a) applies to discrimination in members' privileges to use club facilities, as well as in the grant or denial of membership itself.

I

State v. Burning Tree

In State v. Burning Tree Club, Inc., 315 Md. 254, 294, 554 A.2d 366 (1989), the Court of Appeals invalidated under the State's Equal Rights Amendment an exception to TP §8-214(a) that allowed clubs to engage in sex discrimination on certain days or at certain times ("the periodic discrimination provision").2 At the same time, the Court rejected all constitutional attacks on the ban on discrimination itself and noted that, as a result of its decision, "Burning Tree is not the only club ... that will be forced to change its policies or lose its tax benefit." 315 Md. at 273.

Specifically, the Court noted that, except for the unconstitutional "periodic discrimination" provision, "the prohibition against sex discrimination is otherwise applicable to all members of the class in such matters as membership, facilities, dues, etc." 315 Md. at 274 (emphasis added). The Court stated that the invalid exemption

1(...continued)
Several clubs have eating facilities or card rooms which are designated as "Men's Grill," "Ladies' Grill," "Men's Card Room," or "Ladies' Card Room." This designation by the club or the actual reservation of these facilities for a single sex is a violation of the law, regardless of the number of such facilities available at the Club. If you have two grills or card rooms, however, it is not a violation if the men or the women tend to gravitate to one or the other; what is not permitted is an official club policy of exclusion of one sex from these facilities.
(Emphasis added.) Essentially, you have raised the issue of whether the prohibitions noted in Assistant Attorney General Bushel's letter go beyond the requirements of TP
§8-214. For reasons stated in this opinion, we agree with the view of the law contained in her August 1 letter.
2
In Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985), the court had likewise invalidated a provision additionally exempting from TP §8-214(a) any country club whose facilities "are operated with the primary purpose of serving or benefiting members of a particular sex ...." That provision was repealed by Chapter 334 of the Laws of Maryland 1986.

permitted "the segregation of facilities on the basis of sex" and allowed "a club to engage in periodic sex discrimination in any of its facilities for any reason at all." 315 Md. at 295 and 296 (emphases added).

Similarly, in Burning Tree v. Bainum, 305 Md. 53, 501 A.2d 817 (1985), Chief Judge Murphy, in discussing a question of severability, said that:

[T]he net effect of [the 1974 statute] seems to be to prohibit a country club from continuously excluding, based on sex, members or their guests from using some part, but less than all of the club's facilities or services. An example of a facility fully within Chapter 870's prohibition would be a bar serving exclusively one sex at all times.

305 Md. at 81 (emphasis added).3

II

Statutory Construction

The language of TP §8-214(a) clearly supports the court's interpretation of the scope of that provision. When the exemption for Burning Tree (invalidated in Bainum) was originally enacted with the 1974 ban on sex discrimination, the General Assembly provided that the prohibition did not apply "to any club whose facilities are operated with the primary purpose ... to serve or benefit members of a particular sex ...." Chapter 870, Laws of Maryland 1974 (emphasis added). And the periodic discrimination exemption struck down in 1989, because it was enacted at the same time and served a similar purpose, also clearly applied to exclusion from the use of facilities.

To qualify for the tax preference, a club must have a "clubhouse" and restrict its "facilities" primarily to members, family, and guests.

In State v. Burning Tree, 315 Md. 254 (1989), the State argued that Chief Judge Murphy's opinion in Bainum did not speak for a majority of the Court on the issue of serverability. This position was rejected by Judge Eldridge in the 1989 decision. See 315 Md. at 298, n. 13.

TP §8-212. In our view, it would not be a reasonable construction to read the preferential assessment statute as requiring such facilities to exist for qualification for the tax preference and at the same time, after the Burning Tree decision, sanctioning discrimination on the basis of race, color, creed, sex, or national origin in their use.

Finally, the legislative history of the 1986 amendment to the tax preference statute is particularly compelling. Individuals and groups, such as the Conference of Private Organizations ("CONPOR") told the General Assembly that if the periodic discrimination provision were eliminated from the law, "all activities, programs and practices which differentiate on the basis of sex must be prohibited." See CONPOR Comments to the Maryland Senate Committee on Budget and Taxation in Opposition to Senate Bill No. 483 (February 28, 1986) (emphasis added). Similarly, this lobbying group noted that:

Among the commonly followed practices of Maryland golf clubs which, therefore, would be affected by S.B. 483 are:

(1) Saturday/Sunday tee times for men only

(2) "Ladies Days" for female golfers

(3) All male member-guest tournaments

(4) All female member-guest tournaments

(5) Any other kind of club tournament for males or females when the course is closed to members of the opposite sex

(6) Tennis, hockey, badminton times (or tournaments) reserved for one sex or the other

(7) Men's or ladies' grills

4 We believe it is most unlikely that the word "privileges" was intended to apply only to guests and not members, to afford guests greater protection under the law than members. Moreover, the value of a woman's "membership" to play golf would be significantly diminished if a club could abridge her right to use the clubhouse, restroom, and food facilities.

(8) Professional or amateur tournaments at the club for women or men only (e.g. the Kemper Open, Maryland State Amateur Tournaments, etc.)

Id.5 Arguments such as this certainly persuaded the General Assembly to leave the invalid exemption in the law. However, now that the Court of Appeals has eliminated it, we have no choice but to conclude that TP §8-214(a) bans discrimination in the use of club facilities, including such privileges of membership as prime tee time and ladies' and men's days and use of restaurant facilities.

Ill

Conclusion

In our opinion, TP §8-214(a) applies to discrimination in members' privileges to use club facilities, as well as in the grant or denial of membership itself. Hence, the Attorney General's enforcement authority extends to eliminating discrimination in the use of club facilities.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Assistant Attorney General Kaye Brooks Bushel's August 1, 1989 letter did not suggest that all the practices mentioned in the CONPOR Comments are per se illegal, particularly tournaments. In fact, under the rationale of the letter, with which we agree, such events as the Kemper Open would clearly be permissible.