ANNAPOLIS, JULY 22 -- The exclusive Burning Tree Club in Bethesda, which refuses to accept women as members, won another legal round today in its battle to retain its property tax break, and this time the club was aided by the Maryland Equal Rights Amendment.
An Anne Arundel County circuit judge ruled that a 1986 law aimed at denying the tax break to Burning Tree is unconstitutional because of a provision in that law that was intended to allow country clubs to reserve golf courses at certain times for men or women.
That "periodic discrimination" exception violates the state's ERA, Circuit Judge Martin A. Wolff ruled, and renders the entire law unconstitutional.
Wolff noted that it was ironic that Burning Tree, which argued before the state's highest court in 1985 that single-sex country clubs did not violate the state's ERA, was now contending that the 1986 law was unconstitutional because of the ERA. Nevertheless, he ruled, the club was right.
Maryland Assistant Attorney General Robert Zarnoch said the state would appeal Wolff's ruling.
The Burning Tree Club has been a male bastion since it was founded in 1922. Its roster of 250 resident members and about 200 nonresident members has over the years included presidents, members of Congress, Cabinet officials, high-ranking judges and some of Washington's most influential businessmen. Women are excluded from membership.
The 1986 law enacted by the Maryland General Assembly ended a six-year lobbying effort to either force the club to admit women or forfeit an annual break on property taxes.
Since 1965, Maryland has allowed the land owned by country clubs to be assessed at a lower rate if clubs agree not to develop the property. That amounted to a tax savings of $300,000 for Burning Tree for the 1986-87 tax year, according to court documents. The documents state that from 1981 to 1985, Burning Tree paid $165,000 in property taxes to both the state and Montgomery County.
State law was changed in 1974 to deny such tax breaks to clubs that discriminate on the basis of race and religion, but membership policies that discriminate on the basis of sex were permitted.
Burning Tree was the only club with such a policy.
Two lawsuits were filed against the club in 1983, one by Montgomery County state Sen. Stewart Bainum and the other by Attorney General Stephen H. Sachs, to strike down the tax break. Sachs' suit was dismissed, but a Circuit Court judge ruled in favor of Bainum.
The club appealed the decision, and in December 1985 Bainum won the battle but not the war. The state's highest court, the Maryland Court of Appeals, struck down the amendment granting the break.
However, the court also struck down parts of the law that prohibited country clubs from discriminating, thus allowing Burning Tree to continue its male-only policy.
Bainum, who lost an attempt last year for a congressional seat, tried again.
After years of thwarting laws aimed at Burning Tree, the General Assembly last year passed the measure Bainum thought would remove the club's tax break.
"Burning Tree has a simple choice now: Either they start paying their taxes, like the rest of us have to do, or they start admitting women," Bainum said at the time. "No longer will women have to subsidize a club which they can't be members of."
Instead, Burning Tree went once again to court.
While Wolff rejected most of Burning Tree's challenges to the law, he disagreed with the state's contention that the club had no grounds to raise the ERA argument.
Wolff said the 1986 law was contradictory because of the provision allowing clubs to reserve courses at certain times for men or women.
That provision means that "a club may prohibit a man or woman from using the club and the only reason for such a denial is one's sex," Wolff wrote.
"Under Maryland's ERA and the case law derived from it, this is unconstitutional," he wrote.
That provision cannot be severed from the rest of the law, Wolff wrote.