In re Opinion of the Justices

Decision Date29 June 1939
PartiesIn re OPINION OF THE JUSTICES.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Answers to questions propounded to the Justices of the Supreme Judicial Court by resolution of the Senate and the House of Representatives of the Commonwealth of Massachusetts.

RONAN and COX, JJ., dissenting in part.

The Commonwealth of Massachusetts Senate, May 22, 1939.

Whereas, There are pending before the General Court six measures designed to limit the employment of married women in the public service, numbered House 292, 556, 707, 893, 1408 and 1705, respectively, a copy of each of which is submitted herewith; and

Whereas, All of said measures contain provisions excluding or removing from the public service married women, irrespective of their fitness for positions in such service; and

Whereas, Said measure numbered House 893 prohibits the employment in the public service of the commonwealth, and of such cities and towns as accept its provisions, of married women whose husbands are lawfully bound and physically and mentally competent to support them, irrespective of the actual employment of such husbands and of their ability or inclination to support their wives; and

Whereas, Three of said measures, numbered House 893, 1408 and 1705, respectively contain provisions for the termination without reasons given in writing, hearing or court review of the employment of certainwomen now employed in such public service who hereafter marry; and

Whereas, Said measures numbered House 707, 1408 and 1705, respectively, also contain provisions for the termination without reasons given in writing, hearing or court review of the employment of certain married women now employed in such public service; and

Whereas, By chapter thrity-one of the General Laws and corresponding provisions of earlier laws, provisions has been made for the making of rules having the force of law, providing for the appointment of persons to certain classified public offices and employments through open competitive and other examinations to test the practical fitness of applicants; and

Whereas, Numerous public offices as well as employments, including many open to women, are classified by said rules, a copy of which is submitted herewith; and

Whereas, By sections forty-two A, forty-three and forty-six of said chapter thirty-one, tenure of office, subject to removal after hearing only for just cause specifically given in writing, is secured by law to all persons holding positions included in said classification, except certain police officers, and by sections forty-two B and forty-five thereof the privilege of judicial review of such removal is given to all such persons, with like exceptions; and

Whereas, Said sections and like provisions of earlier laws, and said rules, have been in force for many years, and many women have entered into public employment thereunder; and

Whereas, Grave doubt exists as to the constitutionality of all of said measures; and

Whereas, A solemn occasion and serious emergency exist, requiring the opinions of the Honorable the Justices of the Supreme Judicial Court; now, therefore, be it

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the General Court on the following important questions of law:

1. Would the provisions of said measures numbered House 292, 556, 707, 893, 1408 and 1705, or any of them disqualifying married women from public office or employment, unless their husbands are through physical or mental disability unable to support them, if enacted into law, violate the provision of section 1 of Article I.XIX of the Amendments to the Constitution of the Commonwealth, that ‘No person shall be deemed to be ineligible to hold state, county or municipal office by reason of sex’, under a proper interpretation of the word ‘office’ as used in said Article of Amendment?

2. Would the prohibition by law of the employment of married women in the public service, if their husbands are physically and mentally capable of working, even if not actually supporting them, substantially as provided in said measures, or any of them while such employment is open to men, and to unmarried women irrespective of any other means of support they may have, abridge a privilege of a certain class of married women, as citizens of the United States, to enjoy an equal opportunity for public employment, in violation of the provision of section 1 of Article XIV of the Amendments to the Constitution of the United States that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States?

3. Would the prohibition by law of the employment of married women, to the extent stated in question No. 2, while such employment is open to men, and to unmarried women, as stated in said question?

(a) Violate the provision of said section 1 of Article XIV of the Amendments to the Constitution of the United States that no state shall deprive any person of liberty without due process of law?

(b) Violate the provision of said section 1 that no state shall deny to any person within its jurisdiction the equal protection of the laws?

(c) Voiolate any rights guaranteed to married women by Article 1 of Part the First of the Constitution of the Commonwealth?

(d) Constitute an arbitrary discrimination in favor of the employment of certain classes of citizens in the public service to the exclusion of others, in violation of Article VI or VII of Part the First of the Constitution of the Commonwealth?

4. Can any unmarried woman who accepted appointment to a position in the classified civil service while sections forty-three and forty-five of chapter thirty-one of the General Laws, or like provisions of earlier laws, were in force, be discharged upon marriage, as provided in section two of said measures numbered House 893, 1408 and 1705, respectively, without the reasons given in writing, hearing and court review provided by said sections forty-three and forty-five, without violating the provision of section 10 of Article I of the Constitution of the United States that no state shall pass any law impairing the obligation of contracts?

5. Would the discharge, under such provisions as those of sections 2, 3 and 4 of the measure numbered House 707, or such as those of section 1 of the measure numbered House 1408 and of the measure numbered House 1705, if enacted into law, of a married woman who accepted appointment to a position in the classified civil service while sections forty-three and forty-five of chapter thirty-one of the General Laws, or like provisions of earlier laws, were in force, without the reasons given in writing, hearing and court review provided by said sections, violate said provision of section 10 of Article I of the Constitution of the United States?

6. Is it constitutionally competent, under the provisions of the Constitution of the United States and of the Constitution of the Commonwealth referred to in preceding questions, for the General Court to provide for excluding or removing married women from public employment, if their husbands are lawfully bound to support them, and physically and mentally capable of working, even if not actually supporting such women, and at the same time leaving such employment available to men, and to unmarried women irrespective of any other means of support they may have, substantially as provided in the measures numbered House 707, 893, 1408 and 1705, or any of them?

7. Would the removal from public employment of all unmarried women upon marriage, in the absence of any provision for the removal of unmarried men upon marriage, substantially as provided in section two of the measure numbered House 893 or in section two of the measure numbered House 1408 and of the measure numbered House 1705, constitute a discrimination against such women, in violation of Section 1 of Article XIV of the Amendments of the Constitution of the United States, or of Article I, VI or VII of part the First of the Constitution of the Commonwealth?

8. Is it constitutionally competent for the General Court, under the provisions of the Constitution of the United States and the Constitution of the Commonwealth referred to in preceding questions, to exclude or remove married women from the public service, if their husbands are gainfully employed, substantially as provided in section four of the measure numbered House 707?

9. Is it constitutionally competent for the General Court, under the provisions of said Constitutions, to prohibit the employment by the Commonwealth and by counties, cities, towns and districts of any married woman, if her husband is earning three thousand dollars or more per year and she is not lawfully separated from him, substantially as provided in the measure numbered House 292?

10. Is it constitutionally competent for the General Court, under said provisions, to prohibit the employment of a husband and wife at the same time by the Commonwealth, substantially as provided in the measure numbered House 556, or by the city of Lowell, substantially as provided in section five of the measure numbered House 707?

11. Is the General Court authorized and empowered, by the provision of Article IV of Section I of Chapter I of Part the Second of the Constitution of the Commonwealth that ‘full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions,’ to enact into law provisions that the employment in the public service of a single woman shall terminate upon her marriage, or that a married woman shall become eligible for the public service upon divorce, or upon obtaining a court decree that she is living apart from her husband for justifiable cause, or that marriage, except where the husband is physically or mentally...

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