Condore v. Prince George's County , 289 Md. 516 ( 1981 )

Murphy, C. J.,

delivered the opinion of the Court. Davidson and Rodowsky, JJ., dissent. Rodowsky, J., filed a dissenting opinion at page 533 infra, in which Davidson, J., concurs in part.

The Equal Rights Amendment (ERA), Article 46 of the Maryland Declaration of Rights, provides:

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

The primary issue in this case is whether the ERA modifies the common law of Maryland by imposing upon a wife a legal obligation to pay for medical services rendered to her husband. The Circuit Court for Prince George’s County (Blackwell, J.) held that the appellant, Maureen Condore, was liable to pay the hospital bill incurred by her deceased husband, Louis, in the appellee county hospital. The court concluded that the ERA mandated this result, without regard to whether the appellant contracted with the hospital to pay for services rendered to her husband. The wife appealed. We granted certiorari prior to decision by the Court of Special Appeals to consider the significant constitutional issue raised in the case.

I

On November 4,1976, Louis Condore was admitted to the Prince George’s County General Hospital. He signed a hospital admission form agreeing to be responsible for all charges incurred from his admission until his discharge.¹ Louis died in the hospital on December 11, 1976, after incurring a substantial hospital bill for services rendered to him. Louis’ hospital insurer paid the entire amount of the hospital bill except for $3,435 for services recorded on the bill under the heading "Date of Service” as having been rendered on December 12 and 13 after Louis’ death.

The County sued Mrs. Condore in assumpsit upon the common counts for the unpaid amount. The County moved for summary judgment, attaching the hospital bill as an exhibit, together with an affidavit of Louis’ physician attesting to the medical necessity for the services rendered. Also attached to the motion were two affidavits from the hospital’s Manager of Special Accounts stating, on personal knowledge, that he kept books of special accounts in the regular course of the hospital’s business and that it was the regular course of the hospital’s business to keep such accounts; that in accordance with its regular practice the hospital maintained an account for services rendered to Louis Condore; that the Condore account appended to the summary judgment motion was true and correct, the entries having been made at the time or shortly after the time that the services were provided; and

"that the dates that appear under date of service on plaintiffs billing statements, after December 11, 1976, the date of patient’s death, in fact, represent the dates that the service was posted and these services were, in fact, rendered but were not posted until after the patient was deceased.”

The appellant filed a motion opposing summary judgment, asserting that she had never agreed to be responsible for her husband’s hospital bill and was therefore not indebted to the hospital.

At the hearing on the hospital’s summary judgment motion, the appellant argued that the motion should be denied because there was a material dispute of fact concerning the correctness of the bill, namely, that the hospital bill showed on its face that the disputed services were rendered after the date of her husband’s death. The court, referring to the affidavit of the hospital’s Manager of Special Accounts, said that the evidence before it, under oath, was that the services were incurred before Louis’ death, although posted to his account on dates subsequent to his death. As to the amount of the bill owing to the hospital, and whether the services had been rendered prior to Louis’ death, the court concluded that there was no genuine dispute between the parties as to any material fact.

The court next considered the parties’ arguments as to whether, as a matter of law, the appellant was legally responsible for her husband’s hospital bill. The County’s position was that the ERA modified the common law duty of the husband to be responsible for his wife’s necessaries by imposing a corresponding legal obligation on the wife to pay for her husband’s necessaries. The County did not rely upon the provisions of Maryland Code (1957, 1980 Repl. Vol.), Art. 45, § 21, which specify that the husband is liable for necessaries supplied to his wife. Although it suggested that §21 may be unconstitutional under the ERA for failure to impose a similar support obligation on the wife, the County maintained that the statute was not involved in the case, since it relied solely upon the ERA-modified common law to recover from the wife. The appellant argued that the ERA imposed no duty upon her to pay for her husband’s necessaries. She suggested that Art. 45, § 21 may be unconstitutional, in which event there would be no legal obligation on the part of either spouse to pay for the necessaries of the other. However, the appellant insisted that the statute was not involved in the case and that the court should not rule on its constitutionality.

The court held that the ERA expanded the "equal rights concept” to require acceptance by women of "the burdens as well as the benefits of such expansion.” In granting summary judgment for the County, the court said:

“[I]n Maryland at the present time the wife is as responsible for her husband’s necessities, such as medical expenses, as would the husband be responsible for the wife’s necessities ... without the benefit of any amendment in the code provisions [Art. 45, § 21].”

Appellant subsequently filed a motion for rehearing and for suminary judgment in her favor, raising the same issues previously adjudicated by the court, but adding that no factual basis was contained in the affidavit of the hospital’s Manager of Special Accounts demonstrating that he in fact had personal knowledge of if and when the disputed services were rendered. The court denied the motion.

Before us, the appellant urges that the lower court was wrong, when, in granting summary judgment for the County, it determined that there was no genuine dispute as to any material fact concerning the amount properly owed to the hospital for services rendered to appellant’s husband. Whether the court erred on this point need not be here considered for we hold, as a matter of law, that the appellant is not legally obligated in this case to pay her husband’s hospital bill.

II

Under the common law of Maryland, prior to the adoption of,the ERA, the husband had a legal duty to supply his wife with necessaries suitable to their station in life, but the wife had no corresponding obligation to support her husband, or supply him with necessaries, even if she had the financial means to do so. Ewell v. State, 207 Md. 288, 114 A.2d 66 (1955); Coastal Tank Lines, Inc. v. Canoles, 207 Md. 37, 113 A.2d 82 (1955); Stonesifer v. Shriver, 100 Md. 24, 59 A. 139 (1904). This well-settled principle was an outgrowth of the early common law which placed married women under various legal disabilities, e.g., (1) the legal existence of the wife was deemed merged in that of the husband and they were regarded as one person, Criminal Inj. Comp. Bd. v. Remson, 282 Md. 168, 384 A.2d 58 (1978); Sezzin v. Stark, 187 Md. 241, 49 A.2d 742 (1946); Joyce v. Joyce, 10 Md. App. 516, 276 A.2d 692 (1970); (2) upon marriage, the wife’s personal property became vested in the husband and was subject to the claims of his creditors, Rowe v. Dept. of Mental Hygiene, 247 Md. 542, 233 A.2d 769 (1967); Clark v. Wootton, 63 Md. 113 (1885); Bayne v. State, Use of Edelen, 62 Md. 100 (1884); and (3) the husband was entitled to the wife’s services and she was legally incapable of making contracts in her own name, Coastal Tank, supra; Sezzin, supra; Furstenburg v. Furstenburg, 152 Md. 247, 136 A.2d 534 (1927). The husband’s common law duty to supply his wife with necessaries included medical care; the wife’s right to obtain such care stemmed from the marital relation itself and the husband’s obligations incident to it. Rowe, supra; Kemer v. Eastern Hospital, 210 Md. 375, 123 A.2d 333 (1956); Ewell, supra; Anderson v. Carter, 175 Md. 540, 2 A.2d 677 (1938); McFerren v. Goldsmith-Stern Co., 137 Md. 573, 113 A. 107 (1921); Stonsifer, supra.

Because of the common law doctrine subjecting the property of the wife to the claims of the husband’s creditors, the Maryland Constitution of 1851, Art. 3, § 38 directed the General Assembly to pass laws to protect the property of the wife from the debts of the husband. Consistent with this constitutional mandate, the legislature enacted various statutes to afford married women the right to a separate estate and to protect it from the husband’s creditors. See Maryland Code (1860, 1861-1867 Supp.), Art. 45, §§ 1 and 2. In the present Maryland Constitution — that of 1867 — the following provision was included in Art. Ill, § 43:

"The property of the wife shall be protected from the debts of her husband.”

To place married women on a more equal footing with their husbands, a number of "Married Women’s Acts” were subsequently enacted by the legislature, primarily ch. 267 of the Acts of 1892 and ch. 457 of the Acts of 1898. These statutes are now codified as Maryland Code (1957, 1980 Repl. Vol.), Art. 45, §§ 1-21. Section 1, in implementation of Art. Ill, § 43 of the Constitution of Maryland, protects the property of a married woman, however acquired, including property acquired "by her own skill, labor or personal exertions” from the debts of the husband. Section'4 provides that married women shall hold their property "for their separate use, as fully as if they were unmarried.” Section 5 empowers married women "to engage in any business, and to contract,... as fully as if they were unmarried.” This section also specifies that married women may be sued separately on their contracts and that a husband is not liable "upon any contract made by his wife in her own name and upon her own responsibility.” Section 21 provides that nothing in the cited sections shall be construed "to relieve the husband from liability for the debts, contracts or engagements which the wife may incur or enter into upon [his] credit ... or as his agent or for necessaries for herself or for his or their children; but as to all such cases his liability shall be or continue as at common law.”

Although the provisions of Art. 45 enlarged rights and removed disabilities imposed on married women at common law, they did not abrogate the common law liability of the husband to provide his wife with necessaries. Dudley v. Montgomery Ward & Co., 255 Md. 247, 257 A.2d 437 (1969); Coastal Tank, supra; Gregg v. Gregg, 199 Md. 662, 87 A.2d 581 (1952); Riegger v. Brewing Company, 178 Md. 518, 16 A.2d 99 (1940); Noel v. O’Neill, 128 Md. 202, 97 A. 513 (1916). The power vested in the wife by § 5 to contract as a principal in her own name, however, included contracts for necessaries. But the husband was relieved of responsibility on such contracts if the wife expressly contracted upon her sole credit to pay the debt incurred from her separate estate or the circumstances clearly showed that the wife assumed liability exclusive of the common law liability of the husband. Anderson, supra; Farver v. Pickett, 162 Md. 10, 158 A. 29 (1932); Barnes v. Starr, 144 Md. 218, 124 A. 922 (1923); Hood v. Hood, 138 Md. 355, 113 A. 895 (1921); Bliss v. Bliss, 133 Md. 61, 104 A. 467 (1918); Noel, supra.

The liability of the wife for her husband’s medical bill was squarely before the Court in Rowe v. Dept. of Mental Hygiene, 247 Md. 542, 233 A.2d 769 (1967). In that pre-ERA case, judgment was rendered against the wife for medical care and maintenance supplied to her husband who was involuntarily committed to a state mental hospital for evaluation following indictment on a murder charge. Under then existing Maryland statutes, a wife was liable for the care and support of a husband within the institution. The wife sought reversal of the judgment against her, contending that under Art. III, § 43 of the Maryland Constitution, her "property ... [was] protected from the debts of her husband.” The State argued "that the marriage relation itself should operate to make a wife liable for her husband’s medical and hospital bills ... if she has the ability to do so ... .” Id. at 546-47. The Court found no merit in the State’s contention; it said:

"This argument must fall before the specific provisions of Section 43 of Article III of the Maryland Constitution.” Id. at 547.

The Court also rejected the State’s argument that under the statute the debt was that of the wife, not the husband.

This was the state of the Maryland law on the doctrine of necessaries when, on November 7, 1972, the people of this State approved the ERA, thereby adding to the Declaration of Rights the provision in Article 46 that "Equality of rights under the law shall not be abridged or denied because of sex.” We first interpreted the provision in Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977), a case concerning parental liability for the support of minor children. The mother there contended that she was obligated under the common law to contribute to the support of her minor child only to the extent that the father was financially incapable of supporting the child. It was argued that the ERA changed the common law rule to impose upon a mother liability equal with that of the father for the support of their minor children. We agreed, stating that the words of the ERA clearly and unambiguously mandated equality of rights between men and women and "can only mean that sex is not a factor.” Id. at 512. We reviewed a number of cases in which similar equal rights amendments of other states had been interpreted, particularly Darrin v. Gould, 85 Wash. 2d 859, 540 P.2d 882 (1975), and Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974). We noted that the Supreme Court of Washington .declined in Darrin to consider whether, under that state’s ERA, a sex-based classification could be sustained under either the rational relationship or strict scrutiny tests. That court held that the "overriding compelling state interest” in equalizing the rights and responsibilities of men and women had been determined by the people of Washington by their adoption of the ERA.² In Henderson, the court said that the thrust of the Pennsylvania ERA "is to insure equality of rights under the law and to eliminate sex as a basis for distinction.” 327 A.2d at 62. The Pennsylvania Supreme Court, in concluding that sex is no longer "a permissible factor in the determination of [the] legal rights and legal responsibilities” of men and women, said:

"The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.” ³ Id.

In line with these cases, we concluded that the broad, sweeping and mandatory language of the Maryland ERA was "cogent evidence” that the people of this State "are fully committed to equal rights for men and women.” 280 Md. at 515. We said that the adoption of the ERA in Maryland "was intended to, and did, drastically alter traditional views of the validity of sex-based classifications.” Id. at 516. Accordingly, we held in Rand that the parental obligation of child support was, in view of the provisions of the ERA, not primarily an obligation of the father, as at common law, but one to be shared equally by both parents in accordance with their respective financial resources.

In Kline v. Ansell 287 Md. 585, 414 A.2d 929 (1980), we held, in light of the ERA as interpreted in Rand, that the common law action for criminal conversation, which was available only to husbands, was unconstitutional and therefore no longer viable in Maryland. The gravamen of that action was the wife’s adultery. At common law, the husband was regarded as having a property right in the body of his wife. Thus, her adultery was considered an invasion of the husband’s property rights and an injury to his feelings and sense of honor. Judge Davidson, for the Court, after noting the history and purpose of the action and its incompatibility with "today’s sense of fairness .. . [and] of the increasing personal and sexual freedom of women,” id. at 589, observed:

"At common law, the action for criminal conversation provided different benefits to and imposed different burdens upon men and women. Only a man could sue or be sued for criminal conversation. These facts remain unchanged under the common law as it exists in Maryland today. A man has a cause of action for criminal conversation, but a woman does not. Moreover, a man who engages in an act of sexual intercourse with another man’s wife is civilly liable for damages, but a woman who, engages in a similar activity with another woman’s husband is not. Thus, Maryland’s law provides different benefits for and imposes different burdens upon its citizens based solely upon their sex. Such a result violates the ERA.. .. The common law cause of action for criminal conversation is a vestige of the past. It cannot be reconciled with our commitment to equality of the sexes.” Id. at 592-93 (footnote omitted.)

In Coleman v. State, 37 Md. App. 322, 377 A.2d 553 (1977), the Court of Special Appeals, relying upon Rand, declared that a criminal statute punishing a husband for the desertion or non-support of his wife, without imposing a corresponding responsibility on a wife, was a sex-based classification which was unconstitutional in view of the ERA.⁴ Rand and its progeny are in accord with cases construing similar equal rights amendments in other states. See Note, 90 A.L.R.3d 158-216 (1979).⁵

Gender-based classifications have also been held invalid under the Fourteenth Amendment to the federal constitution. In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the Supreme Court held that a statute under which husbands, but not wives, might be ordered to pay alimony violated the equal protection clause of the Fourteenth Amendment. In concluding that the sex-based classification was unconstitutional, the Court rejected the "old notion” that the woman is " 'destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.’ ” ⁶ Id. at 280. State courts, applying the Fourteenth Amendment equal protection clause, have reached the same result. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979); Stitt v. Stitt, 243 Ga. 301, 253 S.E.2d 764 (1979); Lovell v. Lovell, 378 So. 2d 418 (La. 1979); Beal v. Beal, 388 A.2d 72 (Me. 1978); Buckner v. Buckner, N.H., 415 A.2d 871 (1980); Mitchell v. Mitchell, 594 S.W.2d 699 (Tenn. 1980). Maryland’s alimony statute was made gender-neutral by ch. 332 of the Acts of 1975.⁷ See Colburn v. Colburn, 20 Md. App. 346, 316 A.2d 283 (1974). See also Kerr v. Kerr, 287 Md. 363, 412 A.2d 1001 (1980).

In Jersey Shore, etc. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980), the Supreme Court of New Jersey held that the common law rule affording unequal treatment as between husbands and wives respecting their liability for necessaries violated the Fourteenth Amendment’s equal protection clause and a similar provision of the New Jersey Constitution. In that case, as here, a hospital sued a wife on the theory that the common law which imposed liability on a husband for necessaries furnished to a wife should be extended to create a corresponding duty on the part of the wife to pay for her husband’s necessaries. In striking down the sex-based classification established by the common law doctrine, the court said:

"A modern marriage is a partnership, with neither spouse necessarily dependent financially on the other. Many women have shed their traditional dependence on their husbands for active roles as income earners.”

* * *

"Interdependence is the hallmark of a modern marriage. The common law rule imposing liability-on husbands, but not wives, is an anachronism that no longer fits contemporary society. Under the present rule, even a husband who is economically dependent on his wife would be liable for the necessary expenses of both spouses, while the wife would not be liable for either. In perpetuating additional benefits for a wife when the benefits may not be needed, the rule runs afoul of the equal protection clause.”

"... At one time, the status of married women might have justified placing on a husband the duty to pay for his wife’s necessary expenses without a correlative duty on her part. As previously discussed, the imposition of that duty no longer comports with the role of a contemporary wife and concepts of a modern marriage. The common law must adapt to the progress of women in achieving economic equality and to the mutual sharing of all obligations by husbands and wives.” Id. at 1008-1009.

The New Jersey court next considered the "various alternatives available in establishing a gender-neutral rule for the payment of necessary expenses incurred by either spouse.” Id. at 1009. It said that in a modern marriage a husband and wife, whether contributing income or domestic services, are a financial unit; that a necessary expense incurred by one spouse benefits both; and that marriage is a shared enterprise. The court declined to extend the common law rule to require each spouse to be completely liable for the other’s necessaries, terming such a solution "equality with a vengeance” because it would result in the immediate exposure of the property of one spouse for a debt incurred by the other spouse, thereby affording a creditor "the same benefits as if both spouses had agreed to joint liability.” Id. at 1009. "Neither equity nor reality,” the court said, "justifies imposing unqualified liability on one spouse for the debts of the other or exempting one spouse from liability for the necessary expenses of the other.” Id. Instead, it held that

"both spouses are liable for the necessary expenses incurred by either spouse. In a viable marriage, the marital partners can decide between themselves how to pay their debts. A creditor providing necessaries to one spouse can assume that the financial resources of both spouses are available for payment. However, in the absence of an agreement, the income and property of one spouse should not be exposed to satisfy a debt incurred by the other spouse unless the assets of the spouse who incurred the debt are insufficient.

"... The reasonable expectations of marital partners are that their income and assets are held for the benefit of the marital partnership and, incidentally, for creditors who provide necessaries for either spouse. However, it would be unfair to accord the same rights to a creditor who provides necessaries on the basis of an agreement with one spouse as to a creditor who has an agreement with both spouses. In the absence of such an agreement, a creditor should have recourse to the property of both spouses only where the financial resources of the spouse who incurred the necessary expense are insufficient. Marshalling the marital resources in that manner grants some protection to a spouse who has not expressly consented to that debt.” Id.

To achieve "substantial justice in view of the reasonable expectations of the parties,” id., and taking into account the parties’ reliance on the prior law, the New Jersey court afforded its new rule a purely prospective application, i.e., to debts incurred after the date of its decision. It said that the wife properly assumed that she incurred no liability when the hospital provided services to her husband, and that the hospital did not expect payment from her in providing those services.

In view of the principles espoused in these cases, we think the common law doctrine of necessaries is predicated upon a sex-based classification which is unconstitutional under the ERA. While the lower court did not directly pass upon the constitutionality of Art. 45, § 21, the provisions of that statute relating to the husband’s liability for his wife’s necessaries, being declaratory of the common law rule, are also invalid under the ERA.

The County urges that the ERA has itself modified and superseded the common law doctrine as to necessaries by imposing upon the wife a reciprocal liability for necessaries supplied to the husband. With regard to Art. Ill, § 43 of the Maryland Constitution, which protects the "property” of the wife "from the debts of her husband,” the County argues that in view of the later-enacted ERA, the wife’s obligation to pay her husband’s medical bill can no longer be considered a debt, but rather a constitutional responsibility which stems from the reciprocal duty of marital support mandated by the ERA. The appellant, on the other hand, relies upon Art. Ill, § 43 of the Constitution of Maryland, as applied in Rowe v. Dept. of Mental Hygiene, 247 Md. 542, 233 A.2d 769 (1967), and contends that notwithstanding the ERA she is afforded special constitutional protection against liability for the payment of her husband’s hospital expenses. Appellant also argues that any change in the common law, as declared in Art. 45, § 21, should be made by the legislature and not the courts.

Of course, the common law doctrine of necessaries is subject to change by constitutional or legislative enactment; it is also subject to change by judicial decision where the Court finds, with or without regard to the ERA, that the common law rule is a vestige of the past, no longer suitable to the circumstances of our people. Ansell, supra; Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979); Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979). Although frequently importuned to do so, the legislature has not changed the common law necessaries doctrine, as reflected in Art. 45, § 21. As stated in the 1978 Report of the Governor’s Commission to Study Implementation of the Equal Rights Amendment, between 1973 and 1976 a number of bills were introduced in the General Assembly to remove sex discrimination from the common law necessaries doctrine. Some of the bills took the approach of eliminating the doctrine of necessaries and some sought to extend it to both spouses. In 1978, a bill was introduced to sex-neutralize the law relating to necessaries, and to permit the "homemaking spouse” of either sex to pledge the credit of the other. None of the bills was enacted. Contrasted with this legislative inaction, the General Assembly has, as we have already observed, sex-neutralized criminal statutes pertaining to spousal non-support and desertion, as well as the obligation to pay alimony which, historically, was based on the common law duty of the husband to support his wife. See Bender v. Bender, 282 Md. 525, 386 A.2d 772 (1978). Like alimony, the historical basis underlying the necessaries doctrine was the husband’s unilateral duty to support his wife.

In Rand, we extended the common law rule as to support by a mother of her minor children by making her equally responsible with the father to the extent of her financial resources. We did not create a new cause of action against the mother in Rand because, under the common law, she was secondarily liable for child support, the father’s obligation being the primary one. In Ansell, we declined to extend the common law cause of action for criminal conversation to wives, finding that the action was a vestige of the past, no longer a suitable part of the common law of this State. In Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1967), a pre-ERA case, we modified the common law rule pertaining to actions for loss of consortium, which was then not available to a wife. We changed the common law, making the action available only jointly to husbands and wives as a legal entity.

To extend the common law necessaries doctrine to impose liability upon wives, as was done by the Supreme Court of New Jersey in the Jersey Shore case, would be to create a cause of action against a wife where none has previously existed. We do not doubt our authority so to change the common law to conform the necessaries doctrine to the equality of rights principle which underlies the ERA. Plainly, if the necessaries doctrine is to be retained, the provisions of Art. Ill, § 43 of the Constitution, protecting the property of the wife from the debts of the husband, must yield to the extent necessary to accommodate the later-enacted dictates of the ERA. See Kadan v. Bd. of Sup. of Elections, 273 Md. 406, 329 A.2d 702 (1974); Boyer v. Thurston, 247 Md. 279, 231 A.2d 50 (1967). In other words, § 43 is not a bar to the equalizing of burdens as between husbands and wives within the operative reach of the ERA’s provisions.⁸ The general purpose of the ERA to proscribe sex-based classifications offensive to its provisions would also be satisfied by eliminating the necessaries doctrine in its entirety. We do not think that the ERA, by its terms, necessarily requires that either course of action must be taken, since both are responsive to its mandate. Which best serves the societal need is, we think, a matter of such fundamental policy that it should be determined by the legislature. Consequently, rather than judicially expand the common law doctrine by creating a new reciprocal liability upon the wife, pending legislative consideration of the matter, we conclude that the ancient necessaries doctrine, violative as it is of the ERA, is no longer part of the common law of this State and that neither the husband nor the wife is liable, absent a contract, express or implied, for necessaries such as medical care supplied to the other.

Judgment reversed; costs to be paid by Prince George’s County.

1 . The form reads as follows:

"... I/we guarantee payment to Prince George’s General Hospital of all charges incurred by the above patient from date of admission until discharge.” Above a line on the form marked "Person Responsible” appears the signature of Louis Condore.

2 . The Washington ERA reads:

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

3 . The Pennsylvania ERA provides:

"Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const., art. 1, § 28.

4 . The statute was amended by ch. 921 of the Acts of 1978 to apply equally to each spouse.

5 . In Pennsylvania, one trial court held that the common law rule making the husband, but not the wife, liable for necessaries was modified by that state’s ERA, so as to subject the wife to liability for the husband’s medical expenses. Albert Einstein Med. Center v. Gold, 66 Pa. D. & C.2d 347 (C.P. 1974). Another Pennsylvania trial court invalidated the common law rule imposing liability for necessaries on a husband, refusing to extend it to impose liability upon a wife for her husband’s medical bill. Albert Einstein Medical Center v. Nathans, 27 Pa. Fiduc. 581 (C.P. 1977).

6 . Orr followed a line of cases in which the Supreme Court declared gender-based classifications to be unconstitutional. See Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977) (social security provision allowing benefits to widower only if he was receiving half of his support from his wife is unconstitutional); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (law prohibiting beer sales to males under 21 and females under 18 is unconstitutional); Stanton v. Stanton, 421 U.S. 7, 95 S. Ct. 1373, 43 L. Ed. 2d 688 (1975) (law setting age of majority of women at 18, and men at 21 is unconstitutional); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975) (social security law providing that survivors’ benefits based on deceased husband’s earnings are payable to wife and children but benefits based on deceased wife’s earnings are payable only to children is unconstitutional); Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (requirement that a wife must show her husband is actually dependent in order to claim him as a dependent for purposes of armed forces benefits allowances is unconstitutional); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (state law giving preference to men as administrators of estates violates equal protection). See also Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S. Ct. 1540, 64 L. Ed. 2d 107 (1980) (invalidating a state workers’ compensation statute that required widowers but not widows to prove dependency); Califano v. Westcott, 443 U.S. 76, 99 S. Ct. 2655, 61 L. Ed. 2d 382 (1979) (social security law providing aid to families with dependent children when husband becomes unemployed, but not when wife becomes unemployed, is unconstitutional).

7 . Pennsylvania’s gender-based alimony pendente lite statute was declared unconstitutional under that state’s ERA in Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974).

8 . Amendments to Art. Ill, § 43 were proposed in 1974 and 1975 to insulate any "person” from liability for the debts of that person’s spouse, and in 1976 to provide that "persons” are liable for the debts of their-spouses "only as to necessaries.” None of these proposed amendments was approved by the legislature. See, respectively, SB 126 (1974), SB 52 (1975) and SB 206 (1976).