Proposed “Protection of Marriage” Constitutional Amendment

Supreme Judicial Court Advisory Opinion
In a last ditch attempt to revive the measure before it was to die on December 31, 2002 at midnight, Edward Pawlick, the founder of MCM and the primary funder of its activities, threatened to sue Governor Jane Swift if she did not order the legislature back into session to consider the measure again. As a result of this pressure, Governor Swift requested an eleventh hour advisory opinion from the Supreme Judicial Court as to whether she had an obligation to call the legislature back into session. Senate President Thomas Birmingham submitted a similar request for an opinion from the Court as to his responsibility and that of the legislature regarding continued action on the measure. GLAD submitted a brief arguing that both the Governor and the legislature had already discharged their duties relative to the proposed amendment.

On December 20th, the SJC answered the questions presented to it by Acting Governor Jane Swift and Senate President Thomas Birmingham concerning the adjournment of the Constitutional Convention, the status of the DOMA initiative, and the continuing responsibilities of the Acting Governor and the Legislature for the rest of the legislative session, if any. Despite GLAD’s arguments to the contrary, the SJC ruled that adjournment did not constitute final action on the initiative. As such, the Governor could order the legislature back into session, but was not required to do so. The Court declined to answer Swift’s question about calling the legislature back into session, as well as Birmingham’s questions about the implications of potential actions if the legislature were convened in another Constitutional Convention by or before December 31. Without an affirmative mandate to pursue further action, neither the Governor nor the legislature chose to reopen the amendment initiative, and the matter died at the end of the legislative session on December 31, 2002.

GLAD et al. v. Attorney General Thomas Reilly et al

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In 2002, a year before the Supreme Court’s Lawrence v. Texas ruling declared all state laws criminalizing private consensual same-sex intimacy unconstitutional under the US Constitution, the Massachusetts Supreme Judicial Court made clear that Massachusetts’ sodomy laws can never again be used against consenting adults sharing intimacy in private.

GLAD won a declaration from the Massachusetts Supreme Judicial Court that neither of the state’s sodomy laws applies to private, adult, consensual conduct. GLAD filed suit on behalf of itself and several individual gay and non-gay plaintiffs, challenging the constitutionality of the Massachusetts sodomy laws. The complaint alleged that the sodomy laws (including a 20-year felony for anal sex and 5-year felony for oral and anal sex) violate Massachusetts constitutional guarantees of privacy, equal protection, free speech, and freedom from cruel and unusual punishment.

Following a hearing in December, 2001, the Supreme Judicial Court ruled in February 2002 that the laws may not be enforced against persons who are engaged in the prohibited forms of intimacy as long as the individuals did not intend public exposure. The court technically dismissed the case because none of the plaintiffs were currently subject to prosecution, but its ruling makes clear that these laws can never again be used against consenting adults sharing intimacy in private.

Muzzy v. Cahillane Motors, Inc.

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GLAD was instrumental in winning a decision from the Massachusetts Supreme Judicial Court that personal information about a plaintiff, such as sexual orientation, may not be introduced in court for the purpose of perpetuating negative stereotypes or inflaming the prejudice of the jury.

GLAD filed an amicus brief in a case involving a sex harassment claim brought by a lesbian plaintiff against her lesbian supervisor. The case went to trial in order to determine whether the supervisor sexually harassed the plaintiff, and the plaintiff lost. The case was appealed in part on the grounds that the instruction to the jury to consider whether the allegedly harassing conduct would be offensive to a “reasonable lesbian” was prejudicial.

GLAD filed a brief articulating a test that would allow trial courts to provide personal information about a plaintiff, such as sexual orientation, but only if it is for the purpose of ensuring that juries consider the experience of harassment of minorities. GLAD argued that such information may not be used for the purpose of perpetuating negative stereotypes or inflaming the prejudice of the jury. Therefore, such information ordinarily should not be admitted over the objection of plaintiffs. The Supreme Judicial Court articulated a test that incorporated the analysis set forth in GLAD’s brief.

Jette v. Honey Farms

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One of two landmark rulings issued in October 2001, in which the Massachusetts Commission Against Discrimination drew on GLAD legal analysis to rule that transgender people are covered by state non-discrimination laws prohibiting sex and disability discrimination.

Lesley v. Hee Man Chie

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In 2001 a disappointing decision by the United States Court of Appeals in Boston upheld a US District Court’s ruling that a Leominster, MA obstetrician did not violate disability anti-discrimination laws when he refused to continue care for a pregnant woman after she tested HIV-positive. The Court made its ruling despite both GLAD and the Massachusetts Department of Public Health presenting compelling evidence that there was no medical justification for Dr. Chie’s termination of Ms. Lesley’s care simply on the basis of her HIV-positive status.

It should be noted that the decision applies to an important, but limited type of discrimination lawsuit. It does not alter basic legal protections for people with HIV, nor does it apply to cases with very different factual scenarios than those pointed to by the Court in its decision.

Ayer v. Sommi & Keller

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GLAD was instrumental in obtaining a favorable ruling from the Massachusetts Appeals Court that domestic violence laws protect gay, lesbian, and bisexual people as well as heterosexuals. The first same-sex domestic violence case to reach appellate courts in Massachusetts involved a man who appeared to be the victim of domestic violence but was subject to a mutual restraining order. The Appeals Court ruled that mutual restraining orders could only be issued where the judge makes written findings that the orders are warranted against both parties. This ruling ensures that judges discharge their duty to discover and protect the real victim of domestic abuse, and cannot simply fall back on prejudiced assumptions that because parties are of the same sex, they have the same power.

GLAD submitted an amicus brief in the case, analyzing the factors that make same-sex domestic violence different from opposite-sex domestic violence. Joining on the brief as amici were The Network of Battered Lesbians and Bisexual Women; Gay Men’s Domestic Violence Project; Fenway Violence Recovery Program; The Domestic Violence Council; Jane Doe, Inc; Massachusetts Law Reform Institute; and the Mass. Lesbian and Gay Bar Association. Vickie Henry and Anthony Mirenda of the Boston law firm Foley Hoag represented the plaintiff, Mr. Ayer.

Millett v. Lutco

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One of two landmark rulings issued in October 2001, in which the Massachusetts Commission Against Discrimination drew from GLAD legal analysis to rule that transgender people are covered by state non-discrimination laws prohibiting sex and disability discrimination. See also Jette v. Honey Farms.

In re R. C.

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GLAD ensured that an incarcerated gay man who was violently attacked and raped by another inmate was able to press charges, despite attempts to obstruct justice by homophobic prison officials. Prison officials initially dismissed R.C.’s complaint because of the fact that he was known to be gay and, according to prison guards, could not, therefore, be raped. With GLAD’s assistance, R.C. persevered in getting the Norfolk District Attorney’s office to press charges against the perpetrator. GLAD worked with the District Attorney’s office to ensure that all of the available evidence would be presented to the grand jury. In August, 2001, an indictment was issued against the man who raped R.C.

Dahill v. Boston Police Department

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In this case, in May 2001, the Mass. Supreme Judicial Court ruled that Massachusetts law prohibits discrimination in employment, housing and public accommodations against individuals whose disability has been corrected or mitigated by medications or other corrective measures (e.g., a person who wears a hearing aid, or who takes medications to control a condition like diabetes or epilepsy). In August 2000, GLAD, together with the Disability Law Center, filed a brief in the Supreme Judicial Court, addressing the critical question of who is protected from discrimination under disability anti-discrimination laws. This important victory should ensure the continued protection of people with HIV from job discrimination under disability anti-discrimination laws, even as advancements in the treatment of HIV are made.

The brief was filed on behalf of a wide range of disability, civil rights, and civic organizations, including the American Association of Retired Persons, Catholic Charities, AIDS Action Committee, D.E.A.F., Inc., and the Epilepsy Foundation of Massachusetts.

Doe v. Kelley (State Police)

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As a result of the settlement of a GLAD case against the Massachusetts State Police, a General Order was issued that “officers should not order someone to leave a public area in the absence of unlawful conduct.” This Order clarifies the law on police-public interaction and sexual activity in public places, and reaffirms that individuals have the right to use public facilities without interference regardless of their sexual orientation.

GLAD filed a complaint against the Massachusetts State Police for preventing our client, a gay man, from using public rest areas. Our client, known in court papers as “John Doe,” alleged that a particular State Trooper, with support from his superiors, harassed him based on a stereotyped view that Doe, because he is a gay man, was likely to engage in public sexual behavior. In this matter, GLAD argued that our client, like every other citizen, has the right to use public facilities whenever he wants to, without state interference regardless of his sexual orientation.

We filed our complaint in state court requesting only that the State Police comply with the law, i.e., that they not roust our client from public areas. After a preliminary injunction hearing, the judge ruled in our favor, issuing an order against the State Police prohibiting the police from continuing to harass our client. A settlement of this court action was announced by GLAD and the Massachusetts State Police in March, 2001. A key feature of the settlement involved the issuance of a General Order from the then head of the State Police, Colonel John DiFava, to all uniformed members of the department clarifying the law on police-public interaction and sexual activity in public places. Among other things, the General Order provides, “Officers should not order someone to leave a public area in the absence of unlawful conduct.” Although the State Police admitted no wrongdoing, they trained all new recruits on the issues in the General Order, and are ensuring that in-service training for existing officers also addresses the issues.