Opinion of the Justices to the Senate
Decision Date | 03 January 1984 |
Citation | 458 N.E.2d 1192,390 Mass. 1201 |
Parties | OPINION OF THE JUSTICES TO THE SENATE. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
On January 3, 1984, the Justices submitted the following answers to questions propounded to them by the Senate.
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on November 1, 1983, and transmitted to this court on November 15, 1983, respecting House Bill No. 6665, a bill pending before the Senate entitled: "An Act eliminating certain discrimination on the basis of sexual preference." In its order the Senate noted that the "bill provides criminal penalties for certain discrimination based upon ... a person's 'sexual preference,' " that the bill does not include a definition of sexual preference, and that "[g]rave doubt exists as to the constitutionality of said bill which imposes criminal penalties for ... certain actions which are not specifically defined in said bill."
The order asks the opinion of the Justices on the following two questions:
We issued an announcement that briefs would be received up to and including December 12, 1983. 1
Our constitutional duty as to advisory opinions extends to questions concerning the constitutionality of pending legislation and not to questions concerning legislation already enacted. Answer of the Justices, 373 Mass. 867, 870-872, 366 N.E.2d 730 (1977). Opinion of the Justices, 363 Mass. 889, 898, 294 N.E.2d 346 (1973). Opinion of the Justices, 314 Mass. 767, 770-772, 49 N.E.2d 252 (1943). Therefore, we answer the first question only as it relates to the addition of references to "sexual preference" in certain criminal statutes. As so limited, the first question and the second question are substantially the same, namely, whether the imposition of criminal penalties for discrimination based on "sexual preference" lacks sufficient definiteness to meet the requirement of art. 12 of the Declaration of Rights of the Constitution of the Commonwealth 2 that any stated criminal sanction convey "a definite warning of proscribed conduct--when measured by commonunderstanding and practices." Opinions of the Justices, 378 Mass. 822, 827, 393 N.E.2d 313 (1979). See Commonwealth v. Bohmer, 374 Mass. 368, 372, 372 N.E.2d 1381 (1978); Commonwealth v. Jarrett, 359 Mass. 491, 496-497, 269 N.E.2d 657 (1971); Commonwealth v. Slome, 321 Mass. 713, 715, 75 N.E.2d 517 (1947).
The only provisions of House Bill No. 6665 concerned directly with criminal violations are §§ 13 and 14, set forth in the margin, 3 which add the words "sexual preference" to statutes concerned with particular discriminations, distinctions, or restrictions relating to places of public accommodation, resort, or amusement. The first twelve sections of the bill proposed amendments to G.L. c. 151B, concerning the functions of the Massachusetts Commission Against Discrimination (MCAD), and do not directly involve criminal violations. However, G.L. c. 151B, § 8, provides for criminal penalties for wilful violations of MCAD final orders. Also, the MCAD may seek judicial enforcement of its orders and the court in turn may "punish for contempt" any person violating its order or injunction. G.L. c. 151B, § 6. What we say about the words "sexual preference" proposed for insertion in G.L. c. 272, §§ 92A and 98, would apply generally to those words appearing in any MCAD final order or in any court order or injunction. The last three sections of the bill do not prescribe any criminal sanction.
We believe that the words "sexual preference" are not unconstitutionally vague with reference to the standards established under art. 12. We are not asked, of course, to express our opinion on the constitutionality of the phrase as applied in particular situations. See Opinions of the Justices, 378 Mass. 822, 825, 393 N.E.2d 313 (1979). Words may acquire sufficiently definite meaning through judicial use and interpretation. Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977). The Supreme Judicial Court has used the phrase in recent years. In Macauley v. Massachusetts Comm'n Against Discrimination, 379 Mass. 279, 397 N.E.2d 670 (1979), the court considered the question whether the MCAD had jurisdiction over a complaint based on the plaintiff's assertion that he was discriminated against in his employment because of his homosexuality. The court concluded that the MCAD did not have jurisdiction over "[d]iscrimination based on sexual preference." Id. at 281, 397 N.E.2d 670. 4 The Supreme Judicial Court also has used the words "sexual preference" in the context of child custody (Bezio v. Patenaude, 381 Mass. 563, 410 N.E.2d 1207 [1980] ), 5 and in analyzing a prosecutor's closing argument to a jury (Commonwealth v. Clary, 388 Mass. 583, 447 N.E.2d 1217 [1983] ). 6 The words have been used elsewhere intelligibly without definition. 7 Where a definition has been provided, it has meant male or female homosexuality, heterosexuality, or bisexuality. 8
If, despite what we have said, any uncertainty remains, it can readily be dispelled by inserting an appropriate definition in the bill.
We answer the first question, as we have limited it, "No." We answer the second question, "No."
The foregoing answers are submitted by the Chief Justice and the Associate Justices subscribing hereto on the 30th day of December, 1983.
Herbert P. Wilkins
Paul J. Liacos
Ruth I. Abrams
Joseph R. Nolan
Neil L. Lynch
1 Briefs have been received from the Gay & Lesbian Advocates & Defenders, Inc., the Massachusetts Gay Political Caucus, the Massachusetts Teachers Association, and The First Church of Christ, Scientist, in Boston.
2 Article 12 provides in pertinent part: "No subject shall be held to answer for any Crimes or offence, until the same is fully and plainly, substantially and formally, described to him."
The word "discrimination" appears to have been omitted inadvertently after the word "distinction" in the first line of the proposed new § 98.
4 The proposed bill by amendments to ...
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