Massachusetts practitioners may increasingly find themselves
struggling to understand the boundaries of state equal protection
law. Specifically, civil litigators and health law practitioners
have a particular interest in monitoring the increasing fiscal
pressure behind state and local governments nationwide that cut
costs by restricting eligibility for public programs and reducing
When considering challenges to such cuts based on equal protection
law, 14th Amendment claims and their respective Section 1983
attorneys' fees are feasible, together with state-based
constitutional claims. Although few cases directly discuss
Massachusetts equal protection law, a recent decision by the
Supreme Judicial Court, Finch v. Commonwealth Health Ins.
Connector Authority,2 provides general guidance for
practitioners who may find themselves arguing an interpretation of
state equal protection law.
II. The dilemma of enumeration in the Equal Rights
The Equal Rights Amendment (ERA) of the Massachusetts
Constitution provides that "all people are born free and
equal."3 This language -- all people --
reflects the principles and ideals of the drafters of the state
constitution for whom the concepts of equality and equal
opportunities were paramount.4
In 1976, "all men" was replaced by "all people," and the following
language was added: "[e]quality under the law shall not be denied
or abridged because of sex, race, color, creed or national
origin.5 Of these five enumerated classifications, sex
alone did not already receive strict scrutiny under 14th Amendment
case law - receiving only heightened, or intermediate, review under
federal law.6 The commonwealth thus elevated gender to a
suspect classification, safeguarded by the highest form of judicial
SJC opinions rendered shortly after the ratification of the ERA
further indicate that the sole effect of the amendment was to
expand equal protection with respect to gender discrimination. For
example, in Opinion of the Justices to the
Senate,7 the Court reasoned that via the
enumeration in the ERA, Massachusetts residents had "expressed
their intention" that the strict scrutiny standard be applied to
state classifications based on gender.8 Likewise, in
Commonwealth v. King,9 the SJC held that:
The classifications set forth in art. 106 … with the exception of
sex, are within the extensive protection of the Fourteenth
Amendment to the United States Constitution and are subjected to
the strictest judicial scrutiny … . Therefore, we conclude that the
people of Massachusetts view sex discrimination with the same
vigorous disapproval as they view racial, ethnic, and religious
Commonwealth v. King, 374 Mass. 5 (1977). Similarly, in
Opinion of Justices to House of
Representatives,11 the SJC reasoned that, while
lesser judicial review would suffice under the 14th Amendment, a
proposed act barring girls from contact sports could not "survive
the close scrutiny to which a statutory classification based solely
on the basis of sex must be subjected" under the Massachusetts
The SJC has long held that the Massachusetts Constitution provides
at least the same level of equal protection as the U.S.
Constitution. Simultaneously, Massachusetts may certainly provide
more expansive equal protection than exists under the 14th
Amendment, and "state courts are absolutely free to interpret state
constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
In fact, the SJC has never reduced the equal protection rights
afforded by the Massachusetts Constitution to find the Declaration
of Rights less protective than the federal
Constitution.14> Such a step is unwarranted by the
public record before, during and after the day the ERA was enacted.
Before the vote on the ERA, the SJC had declared that the
principles of equal protection under the Massachusetts Constitution
were at least co-extensive with the equal protection clause of the
14th Amendment as interpreted by the U.S. Supreme
Following the enactment of the ERA, Massachusetts courts continued
to hold that state case law does not apply a more deferential
standard of review under the Declaration of Rights than is required
by federal law.16 In striking down state laws that
denied the privileges of marriage to same-sex couples, for
instance, the SJC in Goodridge v. Dep't of Pub. Health
confirmed that "'[a]bsolute equality before the law is a
fundamental principle of our own Constitution.'"17
The Goodridge court underscored that the safeguards of
equality and liberty in the Massachusetts Constitution signify more
than mere "'freedom from' unwarranted government intrusion"; they
protect the "'freedom to' partake in benefits created by the state
for the common good."18 "The Massachusetts Constitution
affirms the dignity and equality of all individuals. It forbids the
creation of second-class citizens."19
Goodridge is hardly alone in a broad application of equal
protection by the Massachusetts SJC under the Massachusetts
Constitution beyond that under the U.S. Constitution and the 14th
Amendment. In Moe v. Secretary of Administration &
Finance,20 the SJC ruled that a state statute
restricting state reimbursement for Medicaid abortions to those
cases in which the procedure was necessary to prevent the death of
the mother violated the Massachusetts Constitution, despite the
U.S. Supreme Court previously upholding substantially similar laws
under the Fifth and 14th Amendments applying a rational basis
standard.21 The consistent state-based body of
jurisprudence establishes that equal protection under the
Massachusetts Constitution requires, at a minimum, the same degree
of protection as found under the U.S. Constitution and the 14th
Thus, the enumerated classes -- namely, sex, race, color, creed
and national origin -- of the ERA raise a question as to whether
the enumeration is exhaustive. Until recently, government
practitioners could plausibly argue that, at least for the purposes
of state equal protection law, the only suspect classifications are
the five enumerated ones.
In Finch, however, the SJC confirmed that state equal
protection law recognizes suspect classifications beyond the
contours of the ERA enumeration, and that enumeration merely
delineates those classifications that are automatically considered
suspect.23 The general contours of state-based equal
protection must include the now well-established principle that
under the Declaration of Rights, courts must apply strict scrutiny
to laws that discriminate against "discrete and insular
III. Finch continues a tradition of robust state equal
The SJC's recent decision in Finch makes clear that the
enumeration provided in the ERA did not contract equal protection
law. Rather, the enumeration provides a set of classifications that
are always automatically considered suspect and subject to strict
scrutiny. Other classifications might also be considered suspect
and subjected to heightened scrutiny. For those classes, however,
further constitutional analysis is required. On May 6, 2011, the
SJC issued a decision, substantially clarifying the state of
Massachusetts's equal protection law. The court explains:
Effectively, [the ERA] removes the first step -- determination of
whether a classification is suspect - from equal protection
analysis and mandates strict scrutiny of the enumerated
classifications. Because [the ERA] acts to channel the discretion
of the courts with respect to the enumerated classes, the policy
considerations that ordinarily illuminate equal protection analysis
are not relevant to interpretation … If a class is not addressed by
[the ERA] it does not follow that strict scrutiny is inappropriate
but merely that there is no express constitutional mandate that
such scrutiny be applied.25
In this way, the SJC has reconciled the ERA's curious enumeration
with its clear goal of establishing gender as a suspect
classification. While the enumeration provides an exclusive list of
classifications always deemed suspect, discrimination based on
other classifications may also be deemed to warrant strict scrutiny
upon further constitutional analysis.26
The Declaration of Rights is, without exaggeration, the last
bastion for Massachusetts residents who seek protected class
status. From the Quock Walker cases challenging slavery in
1783, to Goodridge, the Massachusetts courts have led the
way in protecting individual rights. Taking it as a statement of
general principles, in view of the evils it was intended to remedy,
the ERA must apply to discrimination against certain unenumerated
classes deserving of heightened protection.
This does not mean, however, that any state-based classification
would be subjected to strict scrutiny if a discrete and insular
minority is targeted.27 Classifications that do not
infringe "fundamental personal rights" are not subject to strict
scrutiny unless they are "inherently suspect."28
Instead, "experience, not abstract logic, must be the primary
guide" in determining which classifications violate equal
protection.29 Further, a group's "political
powerlessness" is a relevant consideration - though not itself
sufficient to justify strict scrutiny.30
Finch clears the way for advocates to proceed with equal
protection claims under the Massachusetts Constitution, even if the
discrimination alleged is not based on one of the enumerated
classifications. Existing precedent informs the legal practitioner
that the ERA is not only coextensive with the 14th Amendment, but
also can be a source of added consumer protections and claims.
Legal practitioners should consider the usefulness of the ERA and
its application to non-enumerated protected classifications for
civil class action lawsuits.
1U.S. Gov't Accountability
Office, GAO-10-899, Fiscal Pressures Could Have
Implications for Future Delivery of Intergovernmental Programs 1-3
2Finch v. Commonwealth Health Ins. Connector
Auth., 459 Mass. 655 (2011).
3Mass. Const. art. CVI.
4Originally, Article I read: "[a]ll men are born free
5Id. at art. CVI.
6E.g. United States v. Virginia, 518
U.S. 515 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994); Mississippi University for Women v. Hogan, 458 U.S. 718
(1982); Craig v. Boren, 429 U.S. 190 (1976).
7Opinion of the Justices to the Senate, 373 Mass. 883
8Id. at 886-87 ("With the exception of sex,
[the Article 106] classifications have long been afforded extensive
protection under the 14th Amendment to the Constitution of the
United States. Race, color and national origin have been designated
suspect classifications and as such have been subject to the
strictest judicial scrutiny. Governmental action which apportions
benefits or burdens according to such suspect categorizations is
constitutionally permissible only if it furthers a demonstrably
compelling interest and limits its impact as narrowly as possible
consistent with the legitimate purpose served").
9Commonwealth v. King, 374 Mass. 5
10Id. at 21 (citing Loving v.
Virginia, 388 U.S. 1 (1967) (race as a suspect
classification); Graham v. Richardson, 403 U.S. 365 (1971)
(alienage as a suspect classification); Oyama v.
California, 332 U.S. 633 (1948) (national origin as a suspect
classification); Wisconsin v. Yoder, 406 U.S. 205, 214
(1972) (religious distinction affecting fundamental First Amendment
11Opinion of Justices to House of Representatives, 374
Mass. 836 (1977).
12Id. at 839-40, 842.
13Goodridge v. Dep't of Pub. Health, 440 Mass.
309, 328 (2003) (quoting from Arizona v. Evans, 514 U.S. 1, 8
(1995)); Planned Parenthood League of Mass. v. Attorney
Gen., 424 Mass. 586, 590 (1997).
14See, e.g., Commonwealth v. King, 374 Mass.
at 21 ("The classifications set forth in art. 106 … , with the
exception of sex, are within the extensive protection of the 14th
Amendment … and are subjected to the strictest judicial scrutiny");
Goodridge, 440 Mass. at 313 ("The Massachusetts Constitution is, if
anything, more protective of individual liberty and equality than
the Federal Constitution … ."); Moe, 382 Mass. at 651 ("We think
our Declaration of Rights affords a greater degree of protection to
the right asserted here than does the Federal Constitution …
15Opinion of the Justices, 363 Mass. 899, 908-09 (1973)
("The guaranties contained in [Articles 1 and 10 of the Declaration
of Rights] are at least as great as those guaranties provided in
the equal protection clause of the Federal Constitution.").
16Zayre Corp. v. Attorney General, 372 Mass.
423, 433 n.22 (1977) (the federal decisions may reflect a standard
of review less restrictive than that required by the Massachusetts
Declaration of Rights)
17Goodridge, 440 Mass. at 329.
18Id. at 329.
19Id. at 312.
20Moe v. Sec'y of Admin. & Fin., 382 Mass.
21See id. at 650. recognition of "a woman's
freedom of choice" and held that such freedom did not "carr[y] with
it a constitutional entitlement to the financial resources to avail
herself of the full range of protected choices," Harris v.
McRae, 448 U.S. 297, 316 (1980), this Court went further in
applying the values of Massachusetts, holding that "when a State
decides to alleviate some of the hardships of poverty by providing
medical care," it "may not use criteria which discriminatorily
burden the exercise of a fundamental right." Moe, 382 Mass. at 652
(internal quotation marks omitted).
22See also, e.g., Corning Glass Works v. Ann &
Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973) (stating that
this Court "is not bound by federal decisions, which in some
respects are less restrictive than our Declaration of Rights").
Compare also McDuffy v. Sec'y, 415 Mass. 545, 606 (1993)
(holding that the commonwealth has a duty under the Massachusetts
Constitution "to provide an education for all its children, rich
and poor, in every city and town of the Commonwealth at the public
school level"), with San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 35 (1973).
23See infra Part III.
24United States v. Carolene Products Co., 304
U.S. 144, 152-153, n. 4 (1938)
25Finch, 459 Mass. at 664 (2011).
27Rules that treat discrete and insular groups lacking
political power differently from others are not inherently suspect
in all circumstances. Harlfinger v. Martin, 435 Mass. 38, 50,
(2001) (minors); Longval v. Superior Court Dept. of the Trial
Court, 434 Mass. 718, 723 (2001) (prisoners); accord, e.g.,
Gregory, 501 U.S. 470 ("age is not a suspect classification under
the Equal Protection Clause"); Zipkin v. Heckler, 790 F.2d
16, 18 (2d Cir. 1986) ("incarcerated felons are not a suspect
28Paro, 373 Mass. at 649
29City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432, 472 n.24 (1985) (Marshall, J.,
concurring in the judgment in part and dissenting in part).
30Id. (citation omitted).