The useful but overlooked Massachusetts Equal Rights Amendment

Issue August 2011 By Lorianne Sainsbury-Wong, Benjamin Wilson and Alyssa Vangeli

I. Introduction

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 benefits.1

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 Amendment

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 scrutiny.

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 discrimination10

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 Constitution.12

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 Constitution."13

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 Court.15

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 Amendment.22

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 minorities."24

III. Finch continues a tradition of robust state equal protection law

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

Iv. Conclusion

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 (2010).

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 and equal."

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 (1977).

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 (1977).

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 rights)).

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. 629 (1981)

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 classification").

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).