Opinion of the Justices To the Senate

Citation: 390 Mass. 909

Court: Massachusetts Supreme Judicial Court; January 3, 1984; Massachusetts; State Supreme Court

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The Justices of the Supreme Judicial Court of Massachusetts respond to the Senate's inquiry regarding House Bill No. 6665, which aims to eliminate discrimination based on "sexual preference." The Senate expressed concerns about the bill's lack of a definition for "sexual preference" and potential constitutional issues, particularly whether the proposal provides sufficient clarity to inform individuals of the criminal penalties associated with violations.

The Justices clarify that their advisory role is limited to assessing the constitutionality of pending legislation, not enacted laws. They address two primary questions: the adequacy of the proposed law's standards for defining criminal conduct and the implications of the undefined term "sexual preference."

The Court concludes that the crux of both questions is whether the proposed criminal penalties for discrimination based on "sexual preference" are sufficiently clear under Article XII of the Declaration of Rights of the Massachusetts Constitution, which mandates that criminal laws must provide definite warnings of prohibited conduct. The Court notes that sections 13 and 14 of the bill introduce "sexual preference" into specific criminal statutes regarding discrimination, while earlier sections relate to the Massachusetts Commission Against Discrimination (MCAD) and do not involve criminal penalties directly.

It is emphasized that the terms related to "sexual preference" are not deemed unconstitutionally vague concerning Article XII standards, although the Justices do not comment on specific applications of the term in individual cases. The Court acknowledges that legal language can gain clarity through judicial interpretation over time.

The Supreme Judicial Court addressed the jurisdiction of the Massachusetts Commission Against Discrimination (MCAD) regarding discrimination claims based on sexual preference in Macauley v. Massachusetts Comm’n Against Discrimination, concluding that the MCAD lacked such jurisdiction. The term "sexual preference" has been utilized in various contexts, including child custody and prosecutorial arguments, and has generally referred to male or female homosexuality, heterosexuality, or bisexuality. The court indicated that any uncertainties about the term could be clarified by adding a definition in the legislation. The justices provided their answers to two questions regarding this matter, both responding negatively to the inquiries posed. Additionally, the document references amendments to Chapter 272 of the General Laws, which prohibit discrimination in public accommodations based on various characteristics, including sexual preference. The amended sections outline penalties for discriminatory practices and clarify that individuals harmed by such discrimination are entitled to monetary compensation, with specific limits on recovery.

All individuals have the right to equal access to public accommodations, limited only by laws applicable to everyone, which is recognized as a civil right. An omission of the term 'discrimination' after 'distinction' in the proposed § 98 was noted. Amendments to G. L. c. 151B would extend the Massachusetts Commission Against Discrimination's (MCAD) jurisdiction to include discrimination types relevant to the Macauley case. Evidence presented indicated that a mother's sexual orientation is irrelevant to her parenting skills, and there were concerns that the prosecutor's remarks about the defendant's sexual preference could lead to bias against her. Numerous legal precedents were cited to support these points, emphasizing the importance of recognizing sexual orientation, defined as a preference for heterosexuality, homosexuality, or bisexuality, and the implications of this definition in discrimination cases.