154 [93 Op. Att’y

CIVIL RIGHTS AND DISCRIMINATION

CODE REVISION – WHETHER 1964 STATUTE PROHIBITING

RECEIPT OF REMUNERATION FOR PARTICIPATION IN A

“RACIAL DEMONSTRATION” IS CONSTITUTIONAL 

November 14, 2008

Ms. Bonnie A. Kirkland, Chair

Human Relations Commission

 Law Article Review Committee

On behalf of the Article Review Committee reviewing the code

revision draft of Article 49B of the Annotated Code of Maryland,

you have requested our opinion concerning §6 of that article, which

makes it a crime for an individual to receive “any remuneration of

any kind whatsoever” for participating in a “racial demonstration.”

The Committee asks whether that provision is constitutional and

whether its repeal would have any substantive effect.

In our opinion, a court would likely hold that an attempt to

enforce the statute would violate the First Amendment of the United

States Constitution, as well as Article 40 of the Maryland

Declaration of Rights. Accordingly, we recommend that the General

Assembly repeal §6 when it revises Article 49B.

I

Article 49B, §6

A. Statutory Language

The statute reads, in its entirety, as follows:

(a) It is unlawful for any person to

receive any remuneration of any kind

whatsoever for participation in any racial

demonstration in the State.

(b) Violation of this section is punishable

upon conviction by fine not to exceed $1,000

or by imprisonment not to exceed one year or

by both fine and imprisonment.
Gen. 154] 155

 This statute was originally enacted as §11A of Article 49B. 1

Chapter 29, First Special Session, Laws of Maryland 1964. Some years

later, it was recodified in its current location without any change in

language. Chapter 684, §2, Laws of Maryland 1978.

A search of Westlaw yielded no similar statutes in other states or 2

any cases construing a similar statute.

 Branch describes the dramatic circumstances of one decision to 3

finance such demonstrations in 1961 after the first group of freedom riders

had been beaten in South Carolina and Alabama:

... That evening with the divided Nashville adults

agreeing to donate $900 from the sit-in treasury

without explicitly endorsing the student plan,

Diane Nash [of the Nashville student movement]

pushed ahead with a call of final notice to [Rev.

(continued...)

Annotated Code of Maryland, Article 49B, §6. We are not aware 1

of any cases prosecuted under this statute or any court decisions

construing it. Nor is there any extant legislative history. However, 2

the historical record provides some insight into the statute’s meaning

and purpose.

B. Historical Context

1. Public Accommodations and Demonstrations

Civil rights demonstrations and protests preceded the

enactment of major federal and State civil rights legislation,

including Article 49B, during the 1960s. Many of the early

protesters were inspired by religious values and were committed to

non-violence. Some engaged in non-violent civil disobedience, such

as sit-ins, to protest segregation laws. See Taylor Branch, Parting

the Waters: America in the King Years 1954-63 (1988) (“Parting the

Waters”) at 204-5, 272-76. 

Protests in the early 1960s targeted racial discrimination in

public transportation and public accommodations, such as hotels and

restaurants. Those engaging in the protests often received financial

support from others. For example, the expenses of participants in

the “freedom rides” protesting segregated interstate buses and bus

stations in several southern states were financed in part by donations.

Parting the Waters at 489-90.3
156 [93 Op. Att’y

 (...continued) 3

Fred] Shuttlesworth [of the Southern Christian

Leadership Conference]. “The students,” she told

him, “have decided that we can’t let violence

overcome. We are going to come into

Birmingham to continue the Freedom Ride.”

“Young lady,” Shuttlesworth replied in his

most authoritative voice, “do you know that the

Freedom Riders were almost killed here?”

“Yes,” Nash said tersely.... “That’s exactly

why the ride must not be stopped....”

Parting the Waters at 430.

Demonstrations in support of the movement to desegregate

public accommodations also occurred in Maryland. After several

incidents in which restaurants in Maryland refused to serve

diplomats from newly independent African nations in the early

1960s, various national civil rights groups, including the organizers

of the freedom rides, pressured the Maryland Governor and

Legislature to enact a statewide law banning racial discrimination in

public accommodations. Peter B. Levy, Civil War on Race Street:

The Civil Rights Movement in Cambridge, Maryland (2003) (“Civil

War on Race Street”) at 36. Veterans of the original freedom rides

came to Maryland and focused on facilities along Route 50,

particularly in the city of Cambridge. Civil War on Race Street at

38-40. In 1962, demonstrations began in Cambridge; among the

leaders of those protests were students and other individuals

described as “outside agitators” by local officials. Civil War on

Race Street at 40-41. At least one theater in the town reacted by

enforcing a more restrictive segregation policy. In March 1963,

students and others led a series of demonstrations from local

churches. Civil War on Race Street at 76. Crowds opposed to

desegregation confronted the demonstrators and many arrests

followed. 

By June 1963, some demonstrations were accompanied by

violence. The Governor declared martial law in the town and sent

in the National Guard. Civil War on Race Street at 83. In a July

1963 agreement brokered by United States Attorney General

Kennedy, town officials pledged to undertake various reforms,

including desegregation of public accommodations, in return for a

halt to demonstrations. Civil War on Race Street at 86-88.
Gen. 154] 157

An exception for bars and taverns in the original law was

4

removed a few years later. Chapter 484, Laws of Maryland 1968.

 The federal law prohibiting racial discrimination in public

5

accommodations was passed the following year as Title II of the Civil

Rights Act of 1964, 42 U.S.C. §2000a et seq.

 The name was changed in 1968. Chapter 83, Laws of Maryland 6

1968.

 In addition, a proviso was added to the bill that allowed 7

proprietors to deny service to a person based on “the usual and regular

requirements, standards and regulations for the establishment” so long as

the denial was not based upon prohibited discrimination. That provision

is currently codified as Article 49B, §5(c).

However, a referendum at a special town election later that year

repealed the local desegregation measure for public

accommodations. Civil War on Race Street at 102.

2. Maryland Public Accommodations Law

Against this background, the General Assembly dealt with the

issue of desegregation of public accommodations. It passed, during

its 1963 session, a public accommodations law barring

discrimination on the basis of race, creed, color, or national origin in

hotels, restaurants, and other places of public accommodation.4

Chapters 227, 228, Laws of Maryland 1963, codified at Annotated

Code of Maryland, Article 49B, §11 et seq. The new law also gave 5

certain enforcement powers to the Commission on Interracial

Problems and Relations, the predecessor of the Maryland

Commission on Human Relations. Id. However, eleven counties, 6

including the entire Eastern Shore, were excepted from the purview

of the 1963 law and the Commission’s enforcement authority. 

The next year, during a special session, the Legislature

amended the new anti-discrimination law to eliminate the

geographical exceptions and extend it statewide. Chapter 29, First

Special Session, Laws of Maryland 1964. However, as the bill went

through the legislative process, a provision concerning “racial

demonstrations” was added to the bill. In particular, a new §11A,

the predecessor of current §6, was added to prohibit the receipt of

remuneration for participation in “any racial demonstration.” A 7

contemporary press account of the legislative negotiations reported

that this provision was added at the request of Eastern Shore
158 [93 Op. Att’y

Contemporary press accounts are sometimes relied upon by the 8

courts to provide useful context for laws enacted prior to the compilation

and preservation of legislative files in the mid-1970s. In re Jason W, 378

Md. 596, 602 & n. 3, 607-11, 837 A.2d 168 (2003). 

 The history of Maryland’s public accommodations law is

9

discussed in Bell v. Maryland, 378 U.S. 226, 228-29 & n.1 (1964), in

which the Supreme Court held that the passage of that law put in question

criminal trespassing convictions of students who had engaged in a sit-in

to protest racial discrimination prior to passage of the law. The lead

defendant in that case later became the current Chief Judge of the Court

of Appeals of Maryland.

opponents of the statewide public accommodations measure as the

Governor and legislative leaders sought to assemble the votes

necessary for its passage. See C. Whiteford, Tawes calls action

‘great step forward in racial relations,’ Baltimore Sun, p.1, 14

(March 15, 1964). The statewide law was petitioned to referendum, 8

and was narrowly ratified by the voters at the 1964 election. See 9

Maryland Manual 1965-1966 at 484. 

II

Analysis

A. What the Statute Prohibits

The first subsection of the statute regulates conduct; the second

establishes a criminal penalty for a violation. The statute prohibits

receipt of “remuneration” for participation in an event characterized

as a “racial demonstration.” An understanding of the meaning of

those terms is necessary to measure the statute against constitutional

limitations.

1. “Remuneration”

The Legislature has used the word “remuneration” frequently

in the Annotated Code, generally in contexts in which it intends to

encompass not only monetary compensation, but also any type of

reward or consideration paid to the party in question. See, e.g.,

Annotated Code of Maryland, Health-General Article, §7-1104(a)

(State employee may not receive or solicit “any remuneration” other

than State compensation for providing certain services); Insurance

Article, §10-503(b) (insurance adjuster may not accept any “form of
Gen. 154] 159

remuneration” from a repair service for recommending that service

to an insured); Natural Resources Article, §4-701(i)(3)(ii) (fishing

license may not be transferred “for any type of remuneration”);

Article 2B, §15-112(d)(6) (members and employees of Baltimore

City liquor board may not receive “any commission, remuneration

or gift whatsoever” from licensees or manufacturers of alcoholic

beverages). 

In Article 49B, §6, the General Assembly eliminated any doubt

that it was using the term in its broadest possible meaning by

surrounding it with expansive adjectives – i.e., “any remuneration of

any kind whatsoever.” For example, the term would clearly apply to

living expenses or a stipend paid to a student or other “outside

agitator” who visited the State to participate in a “racial

demonstration.”

2. “Racial Demonstration”

The phrase “racial demonstration” has fallen out of use in the

21 century. An on-line search of the New York Times archive st

found no use of the phrase in that newspaper after 1971. However,

in the early 1960s it was often used as a synonym for “civil rights

protest” or “civil rights demonstration” when the focus of the

demonstration or protest was racial segregation or racial

discrimination. Court decisions from that period concerning civil

rights protests, particularly in the United States Court of Appeals for

the Fourth Circuit, often use the phrase. See, e.g., Baines v. City of

Danville, 337 F.2d 579, 582, 586 (4 Cir. 1964) (in cases “arising th

out of racial demonstrations in Danville, Virginia,” discussing

whether demonstrators had exceeded their First Amendment rights);

see also Knight v. State Board of Education, 200 F. Supp. 174, 181

(M.D.Tenn. 1961) (discussing whether plaintiff college students had

been disciplined for engaging in “racial demonstrations” – i.e.,

freedom rides – in Mississippi).

The phrase “racial demonstration” relates to the message that

the demonstrators intended to convey, as opposed to the manner in

which the demonstration was conducted or the identity of the

demonstrators. As best we can determine from the contemporary

sources, the phrase does not connote a violent demonstration as

opposed to a peaceful one, or a demonstration at which civil

disobedience was practiced as opposed to one in which the

demonstrators acted entirely within the restrictions of the thencurrent law. Nor does it necessarily refer to the race of the
160 [93 Op. Att’y

Parting the Waters at 390 (describing the organization of the 10

freedom riders as “an interracial cadre of people well trained in

nonviolence”).

 The Office of the AttorneyGeneral has long had a general policy 11

of declining to provide formal opinions when there is pending or

imminent litigation concerning the issue in question. 

demonstrators – many of the freedom riders were white. Rather, 10

it refers to the subject matter of the protest. 

Thus, it is a fair inference that the General Assembly used the

phrase in reference to demonstrations protesting racial

discrimination. 

3. Summary

In our view, the language of the statute prohibits anyone who

participates in a demonstration or protest against racial

discrimination from receiving anything of value for that

participation. It is evident that its purpose was to limit participation

in civil rights demonstrations by individuals who might require some

financial support in order to participate – e.g., students and other

“outside agitators” blamed by some for unrest accompanying some

demonstrations.

B. Whether the Statute is Constitutional

1. Assessment of Constitutionality in an Attorney

General Opinion

The Committee has asked whether §6 is constitutional. In

undertaking this analysis, we are mindful of the obligation of the

Attorney General to defend, in litigation, the constitutionality of

statutes enacted by the Legislature. State v. Burning Tree Club, Inc.,

301 Md. 9, 36-37, 481 A.2d 785 (1984). However, we also have an

obligation under Article V, §3(a)(4) of the State Constitution to

respond to inquiries from the Legislature with our best legal analysis

– an obligation recognized in the Burning Tree decision itself. 301

Md. at 34. In the current setting where there is neither pending nor

imminent litigation concerning §6, we do not act as the advocate 11

for the provision before a tribunal. Rather, we are asked by an arm

of the Legislature to assess the constitutionality of its own

enactments, indulging all of the presumptions in favor of, and

against, the statute that a court would consider.
Gen. 154] 161

 Similarly, this Office applies a “not clearly unconstitutional” 12

standard in reviewing bills passed by the General Assembly prior to their

approval or veto by the Governor. 71 Opinions of the Attorney General

266, 272 n.12 (1986). This standard of review reflects the presumption of

constitutionality to which statutes are entitled and the Attorney General’s

constitutional responsibility to defend enactments of the Legislature ,

while also satisfying the duty to provide the Governor with our best legal

advice.

See Maryland Constitution, Article I, §9. 13

In that regard, §6 is to be given the benefit of the doubt. There

is a presumption in favor of the constitutionality of a statute, and 12

statutes should be construed to avoid constitutional defects. In re

Roberto d.B., 399 Md. 267, 283-84, 923 A.2d 115 (2007). However,

the canons of statutory construction do not authorize a court, or an

opinion of the Attorney General, to rewrite a statute to make it

constitutional. Accordingly, any construction of the statute must be

reasonable in light of its language and underlying purpose. Davis v.

State, 294 Md. 370, 377-78, 451 A.2d 107 (1982).

Of course, even if we conclude that the statute is

constitutionally deficient, an Attorney General opinion cannot itself

invalidate an act of the General Assembly. Burning Tree, 301 Md.

at 36. However, as the legal counsel for the State, we advise our

clients, particularly those who have sworn to uphold the federal and

State constitutions, to administer statutes in compliance with 13

constitutional provisions. See, e.g., 71 Opinions of the Attorney

General 266 (1986) (debarment statute unconstitutional and

unenforceable in light of Supreme Court decision concerning similar

statute); 62 Opinions of the Attorney General 227 (1977) (provision

of budget bill restricting State employee speech was unconstitutional

and should not be implemented); 56 Opinions of the Attorney

General 25 (1971) (recommending that the General Assembly

amend the Maryland Constitution to delete a provision prohibiting

ministers or preachers from serving in Legislature as the provision

was invalid under First and Fourteenth Amendments of the federal

constitution); 46 Opinions of the Attorney General 51 (1961)

(statutes requiring segregation of three juvenile reform schools

should not be implemented in light of Court of Appeals decision

holding that segregation pursuant to a different statute at a fourth

institution was unconstitutional).
162 [93 Op. Att’y

 The Maryland provision states: 14

That the liberty of the press ought to be inviolably

preserved; that every citizen of the State ought to

be allowed to speak, write and publish his

sentiments on all subjects, being responsible for

the abuse of that privilege.

Maryland Declaration of Rights, Article 40. The Court of Appeals has

stated that Article 40 is “in pari materia” with the First Amendment and

that, while the two provisions will not necessarily always be construed

identically, in many contexts, the analysis under Article 40 and the First

Amendment will be the same. The Pack Shack, Inc. v. Howard County,

377 Md. 55, 64, 832 A.2d 170 (2003). 

The vagueness doctrine is derived from the constitutional right 15

to due process – i.e., a law fails to provide a person of ordinary

intelligence fair notice of what is prohibited or is so standardless that it

permits discriminatory enforcement. Williams, 128 S.Ct. At 1845.

2. Freedoms of Speech and Association

As outlined above, Article 49B, §6, essentially criminalizes the

receipt of funds – or other remuneration – by an individual for that

individual’s participation in a civil rights demonstration. While the

action regulated by the statute is the payment of funds or other

remuneration, its stated purpose is to restrict that activity only in

connection with a particular form of expressive activity – a

demonstration against racial discrimination or, in the parlance of the

1960s, a “racial demonstration.”

The statute must be assessed against the constitutional

provisions that protect the freedoms of speech and association.

Those rights are based on the First Amendment of the United States

Constitution, as well as Article 40 of the Maryland Declaration of

Rights. Organized expression of views on public issues is on the 14

“highest rung of ... First Amendment values.” NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 913 (1982). Nevertheless, the

government may regulate that right if it has “a sufficiently important

interest and employs means closely drawn to avoid unnecessary

abridgment of associational freedoms.” Buckley v. Valeo, 424 U.S.

1, 25 (1976). A statute that is not narrowly tailored and that includes

a substantial amount of constitutionally protected conduct within its

prohibition may be struck down on the basis of overbreadth and

vagueness. See United States v. Williams, ___ U.S. ___ , 128 S.Ct. 15
Gen. 154] 163

 See note 14 above. 16

1830, 1838, 1845 (2008); Cox v. Louisiana, 379 U.S. 536, 551-52

(1965); NAACP v. Button, 371 U.S. 415, 432-33 (1963). 

3. Brookins

The Court of Appeals recently assessed the constitutionality of

a State statute of similar vintage that criminalized the payment of

compensation for participation in speech-related activities. State v.

Brookins, 380 Md. 345, 844 A.2d 1162 (2004). That case concerned

a statute, most recently codified at Annotated Code of Maryland,

Election Law Article (“EL”), §13-245, that prohibited candidates,

political committees, political parties, and others from paying “any

sum of money or thing of value” for “walk around services” on

election day. The statute defined “walk around services” to include

such activities as distributing campaign material, electioneering or

canvassing, and communicating a voting preference. EL §13-245(a).

Certain types of payments were excepted from the prohibition,

including salaries of campaign personnel, the cost of transporting

voters to polling places, meals served to campaign workers, and

similar items. EL §13-245(b).

Brookins arose out of a criminal prosecution of several

individuals who had paid college students and residents of homeless

shelters to provide “walk around services” on election day in 2002,

including the distribution of campaign materials and electioneering

with voters near polling places. The defendants moved to dismiss

the indictment, challenging the constitutionality of the statute under

both the First Amendment of the United States Constitution and

Article 40 of the Maryland Declaration of Rights. The circuit court

dismissed the indictment on the ground that the statute was facially

unconstitutional. 

 The Court of Appeals analyzed the arguments under the

federal and State constitutional provisions as a single issue. 380 Md.

at 350 n.2. The Court first observed that, under Supreme Court 16

precedents, a law that burdens “core political speech” is subject to

“exacting scrutiny” and may be upheld only if it is narrowly tailored

to serve an important State interest. 380 Md. at 355. The Court

described in detail several Supreme Court decisions striking down

restrictions on campaign expenditures and similar payments on First

Amendment grounds. See, e.g., Meyer v. Grant, 486 U.S. 414

(1988) (holding that state statute that prohibited compensation of
164 [93 Op. Att’y

 A similar prohibition in Maryland law had been held 17

unconstitutional in Ficker v. Montgomery County Board of Elections, 670

F. Supp. 618 (D.Md. 1985). 

petition circulators violated First Amendment); Buckley v. Valeo,

17

424 U.S. 1 (1976) (striking down federal restrictions on campaign

expenditures). 

In defending the statute, the State argued that the statute was

directed not at political speech itself, but at the potentially corrupt

use of money to influence an election and that, to the extent it

affected speech, the statute was content-neutral. The State also

argued that the statute was narrowly focused on payments for very

specific electioneering activities on a single day – election day. Id.

at 360-61, 370-71.

The Court held that the statute regulated speech and found

none of the State’s arguments sufficiently compelling to save the

statute. In rejecting the argument that the statute did not regulate

speech per se, the Court observed that the Supreme Court had

applied a stricter standard to regulation of campaign expenditures as

opposed to regulation of campaign contributions. 380 Md. at 361-

68. It noted that, as in Buckley, the statutory restriction on payments

for “walk around services” directly affected a candidate’s ability to

disseminate a political message, as those activities were part of

conveying that message. Id. at 368-69. The Court also rejected the

State’s argument that the statute was content-neutral, noting that the

Supreme Court has stated that “the First Amendment’s hostility to

content-based regulation extends not only to a restriction on a

particular viewpoint, but also to a prohibition of public discussion of

an entire topic.” 380 Md. at 369 (quoting Burson v. Freeman, 504

U.S. 191, 197 (1992)).

The Court stated that there was no showing that the statute was

necessary to accomplish the goal of reducing corruption, and cited

other statutes that directly prohibit vote-buying, attempts to influence

voters through the use of force or other improper means, and

interference with the balloting process. Id. at 373-74. The Court

concluded that “[t]he State’s asserted goal of preventing corruption

or the appearance of corruption does not rise to the level of a

compelling state interest in light of the fact that the measure

‘restricts access to the most effective, fundamental, and perhaps

economical avenue of political discourse, direct one-on-one

communication.’” Id. at 375-76 (quoting Meyer v. Grant).
Gen. 154] 165

4. Application to §6

As noted above, while §6 literally prohibits certain payments,

like the statute in Brookins, it concerns payments only for certain

types of expressive activity – “racial demonstrations.” Thus, like the

statute barring payments for “walk around services,” it indirectly

regulates speech. But it is even more difficult than in Brookins to

argue that the restriction on speech in §6 is content-neutral. While

the restrictions on payments for “walk around services” applied to

all candidates and political parties, regardless of their point of view,

§6 targets demonstrations protesting racial discrimination. There is

no similar prohibition on receiving remuneration for participation in

a demonstration for or against a war, abortion, other forms of

discrimination, or other issues of public policy. 

It might be argued that §6 was designed not to limit the

participation of those who wish to express a particular point of view,

but simply to eliminate those who participate in a demonstration for

profit without any true interest in the issue of racial discrimination.

Assuming that the statutory language could be parsed to reach such

a conclusion and that a category of mercenary protesters could be

identified, enforcement of the statute would still violate the First

Amendment. In Meyer, supra, the Supreme Court struck down a

statute in a case involving the hiring of petition circulators by

proponents of a possible ballot measure; in Brookins, the statute was

held unconstitutional when payments were made to residents of an

out-of-state homeless shelter recruited to electioneer with voters. 

It might also be urged that §6 was a prophylactic measure

designed to prevent demonstrations that would result in violence or

other violations of the law. However, the language of §6 makes no

distinction as to whether the forbidden remuneration is for

participation in an entirely lawful demonstration, a protest involving

civil disobedience, or one accompanied by violent activity. Nor does

it target any particular type of participation – it covers peaceful

presence as well as incitement to violence. As noted above, it would

encompass financing the transportation expenses of someone who

travels to participate peaceably in a civil rights march. Nor is there

any apparent way to limit the reach of the statute by its historical

context. In the parlance of the early 1960s, a “racial demonstration”

could be, and generally was, an entirely lawful activity in which the

participants expressed their common political and moral views. The

broad reach of the statute not only undermines any argument that it

is narrowly tailored to serve an important governmental interest; it

also demonstrates that the statute is fatally overbroad. 
166 [93 Op. Att’y

 It is also notable that the federal civil rights law barring racial 18

discrimination in public accommodations, enacted after the Maryland

statute, would cover most, if not all, the facilities covered by the State law.

There is simply no way to parse the broad language of this

statute to limit its application to situations in which the compensated

“participation” is not protected speech. Accordingly, in our view, §6

cannot be enforced consistently with the First Amendment of the

United States Constitution or Article 40 of the Maryland Declaration

of Rights. 

5. Severability

In light of our conclusion that §6 is unconstitutional, we

discuss briefly whether the invalidity of §6 would call into question

the validity of the rest of the 1964 act, including the statewide public

accommodations law. In other words, is the current §6 severable

from the remainder of the public accommodations law? In our view,

the provision is severable.

At the time §6 was originally enacted, as now, the courts did

not generally invalidate an entire act when a portion of the act was

held unconstitutional or preempted by other law. See, e.g., City of

Baltimore v. Stuyvesant Insurance Co., 226 Md. 379, 390-93, 174

A.2d 153 (1961). Rather, the courts generally looked to whether the

remaining valid provisions alone were incomplete or incapable of

being executed in accordance with legislative intent – an approach

that was codified in statute in 1973. See Annotated Code of

Maryland, Article 1, §23.

In this instance, §6 does not relate directly to the enforcement

of the statewide public accommodations law, as it regulates a

category of public events rather than a category of accommodations;

the public accommodations law functions independently of §6.

While the inclusion of §6 in the 1964 act may have been important

to the passage of that law, the provisions have not been linked in

subsequent legislation reaffirming the anti-discrimination measure.

The Legislature has amended and reenacted the public

accommodations statute on numerous occasions since 1964. For

example, it has reenacted the public accommodations law to expand

the types of prohibited discrimination, without making similar

changes to §6. It is evident that, whatever purpose §6 served in the

original passage of the public accommodations law, the legislative

intent underlying the subsequent reenactments of the antidiscrimination law would require that §6 be severed.18
Gen. 154] 167

See 42 U.S.C. §2000a.

 Changes made by code revision bills are generally presumed to 19

clarify and not to make a substantive change in the law. See, e.g., Chapter

15, §3, Laws of Maryland 2008; see also Allen v. State, 402 Md. 59, 69-

76, 935 A.2d 421 (2007). We recommend that the repeal either be

accomplished in a separate bill or be specially flagged for the General

Assembly in the code revision bill. See Maryland Division of Labor and

Industry v. Triangle General Contractors, Inc., 366 Md. 407, 784 A.2d

534 (2001) (code revision bill may effect substantive change if language

is clear and unambiguous).

III

Conclusion

In our opinion, a court would likely hold that an attempt to

enforce Article 49B, §6, would violate the First Amendment of the

United States Constitution, as well as Article 40 of the Maryland

Declaration of Rights. Accordingly, we recommend that the General

Assembly repeal §6 when it revises Article 49B.19

Douglas F. Gansler

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice