OPINION OF THE JUSTICES TO THE SENATE, 390 Mass. 1201

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:

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"1. Whether the proposed law violates the provisions of Article XII of the Declaration of Rights of Part I of the Constitution of the Commonwealth in that it provides for criminal penalties without establishing a standard of behavior sufficiently definite to inform a person charged with its violation of the nature and extent of his offense?

"2. Whether the proposed law violates the provisions of said Article XII in that it imposes criminal penalties for discrimination based on `sexual preference' without defining the term `sexual preference'?"

We issued an announcement that briefs would be received up to and including December 12, 1983. [Note 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 (1977). Opinion of the Justices, 363 Mass. 889, 898 (1973). Opinion of the Justices, 314 Mass. 767, 770-772 (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 [Note 2] that any stated criminal sanction convey "a definite warning of proscribed conduct -- when measured by common understanding

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and practices." Opinions of the Justices, 378 Mass. 822, 827 (1979). See Commonwealth v. Bohmer, 374 Mass. 368, 372 (1978); Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971); Commonwealth v. Slome, 321 Mass. 713, 715 (1947).

The only provisions of House Bill No. 6665 concerned directly with criminal violations are Sections 13 and 14, set forth in the margin, [Note 3] which add the words "sexual preference" to

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statutes concerned with particular discriminations, distinctions, or restrictions relating to places of public accommodation, resort, or amusement. The first twelve sections of the bill propose 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, Section 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, Section 6. What we say about the words "sexual preference" proposed for insertion in G. L. c. 272, Sections 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 (1979). Words may acquire sufficiently definite meaning through judicial use and interpretation. Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). The Supreme Judicial Court has used the phrase in recent years. In Macauley v. Massachusetts Comm'n Against Discrimination, 379 Mass. 279 (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. [Note 4] The Supreme Judicial Court also has used the

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words "sexual preference" in the context of child custody (Bezio v. Patenaude, 381 Mass. 563 [1980] [Note 5]), and in analyzing a prosecutor's closing argument to a jury (Commonwealth v. Clary, 388 Mass. 583 [1983] [Note 6]). The words have been used elsewhere intelligibly without definition. [Note 7] Where a definition has been provided, it has meant male or female homosexuality, heterosexuality, or bisexuality. [Note 8]

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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.

EDWARD F. HENNESSEY

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS

JOSEPH R. NOLAN

NEIL L. LYNCH

FRANCIS P. O'CONNOR

FOOTNOTES

[Note 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.

[Note 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."

[Note 3] "SECTION 13. Section 92A of chapter 272 of the General Laws, as most recently amended by chapter 331 of the acts of 1978, is hereby further amended by striking out the first paragraph and inserting in place thereof the following paragraph: --

"No owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement shall, directly or indirectly, by himself or another, publish, issued [sic], circulate, distribute or display, or cause to be published, issued, circulated, distributed or displayed in anyway [sic], any advertisement, circular, folder, book, pamphlet, written, or painted or printed notice or sign, of any kind or description, intended to discriminate against or actually discriminating against persons of any religious sect, creed, class, race, color, denomination, sex, sexual preference, nationality, or because of deafness or blindness, or any physical or mental disability, in the full enjoyment of the accommodations, advantages, facilities or privileges offered to the general public by such places of public accommodation, resort or amusement."

"SECTION 14. Said chapter 272 is hereby further amended by striking out section 98, as most recently amended by section 2 of chapter 595 of the acts of 1979, and inserting in place thereof the following section: --

"Section 98. Whoever makes any distinction or restriction on account of race, color, religous [sic] creed, national origin, sex, sexual preference [sic] deafness, blindness, or any physical or mental disability or ancestry relative to the admission of any person to, or his treatment in, any place of public accommodation, resort or amusement, as defined in section ninety-two A, or whoever aids or incites such distinction, discrimination or restriction, shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than one year, or both, and shall forfeit to any person aggrieved thereby not less than one hundred nor more than five hundred dollars, but such person so aggrieved shall not recover against more than one person by reason of any one act of distinction, discrimination or restriction. All persons shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement subject only to the conditions and limitations established by law and applicable alike to all persons. This right is recognized and declared to be a civil right."

The word "discrimination" appears to have been omitted inadvertently after the word "distinction" in the first line of the proposed new Section 98.

[Note 4] The proposed bill by amendments to G. L. c. 151B would expand the MCAD's jurisdiction to include discrimination of the sort alleged in the Macauley case.

[Note 5] "Both parties introduced evidence to the effect that a mother's sexual preference per se is irrelevant to a consideration of her parental skills." Id. at 578.

[Note 6] "[T]he prosecutor's insinuations regarding the defendant's sexual preference clearly were likely to instigate prejudice against her." Id. at 592.

[Note 7] See Matter of Petition for Naturalization of Longstaff, 716 F.2d 1439, 1443 (5th Cir. 1983); Hill v. United States Immigration & Naturalization Serv., 714 F.2d 1470, 1473 (9th Cir. 1983); United States v. Lemons, 697 F.2d 832, 833 (8th Cir. 1983); Manale v. New Orleans, Dep't of Police, 673 F.2d 122, 124 (5th Cir. 1982); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982); Hatheway v. Secretary of the Army, 641 F.2d 1376, 1382 (9th Cir.), cert. denied, 454 U.S. 864 (1981); Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1037 (D.C. Cir. 1980); DeTore v. Local 245 of Jersey City Pub. Employees Union, 615 F.2d 980, 985 (3d Cir. 1980); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-330 (9th Cir. 1979); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978); Holloway v. Arthur Anderson & Co., 566 F.2d 659, 662 (9th Cir. 1977); Koh v. Secretary of the Air Force, 559 F. Supp. 852, 857, 860 (N.D. Cal. 1982); Church of the Chosen People (N. Am. Panarchate) v. United States, 548 F. Supp. 1247, 1253 (D. Minn. 1982); Inosencio v. Johnson, 547 F. Supp. 130, 134 (E.D. Mich. 1982); Lesbian/Gay Freedom Day Comm., Inc. v. United States Immigration & Naturalization Serv., 541 F. Supp. 569, 573 (N.D. Cal. 1982); Childers v. Dallas Police Dep't, 513 F. Supp. 134, 136 (N.D. Tex. 1981); Valdes v. Lumbermen's Mut. Casualty Co., 507 F. Supp. 10, 11 (S.D. Fla. 1980); benShalom v. Secretary of the Army, 489 F. Supp. 964, 969, 973-974, 976 (E.D. Wis. 1980); Cyr v. Walls, 439 F. Supp. 697, 703 (N.D. Tex. 1977); Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 488 (1979); Florida Bd. of Bar Examiners Re N.R.S., 403 So.2d 1315, 1316 (Fla. 1981); In re Florida Bd. of Bar Examiners, 358 Re So.2d 7, 8 (Fla. 1978); Bailey v. State, 240 Ga. 112, 113 (1977); Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 473 (Iowa 1983); Big Brothers, Inc. v. Minneapolis Comm'n on Civil Rights, 284 N.W.2d 823, 827 (Minn. 1979); Jacobson v. Jacobson, 314 N.W.2d 78, 79 (N.D. 1981).

[Note 8] The words "sexual orientation," which are synonymous with "sexual preference," have been defined as follows: "Sexual orientation' means having a preference for heterosexuality, homosexuality . . . or bisexuality, having a history of such a preference or being identified with such a preference" (emphasis in original). Wis. Stat. Ann. Section 111.32 (13m) (West Supp. 1983).