December 7, 1989 Number 2

December 7, 1989 Number 2 Michael J. Connolly Secretary of State State House Boston, Massachusetts 02133 Dear Secretary Connolly: You have asked my opinion whether chapter 516 of the Acts of 1989, "An Act making it unlawful to discriminate on the basis of sexual orientation," may be the subject of a referendum petition under Article 48 of the Amendments to the Massachusetts Constitution. Your opinion request arose because a referendum petition calling for the repeal of this law, signed by ten qualified voters, was filed with your office in a timely fashion. For the reasons discussed below, it is my opinion that the Massachusetts Constitution excludes chapter 516 from the ref- erendum process. Article 48 of the Amendments to the Massachusetts Constitution sets forth standards for the submission of laws enacted by the Legislature to the referen- dum process. Among these standards is the exclusion from the process of certain subjects: No law that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal or compensation of judges; or to the powers, creation or abolition of the courts; or the operation of which is restricted to a particular town, city, or other political division . . . ; or that appropriates money for the current or ordinary expenses of the commonwealth . . . shall be the subject of a referendum petition. Amendments, Art. 48, The Referendum, Pt. Ill, § 2. "The excluded matters provision has consistently been read to mean that if any portion of a law relates to a matter excluded from the referendum process, the law in its entirety may not be the subject of a referendum petition." 1982/83 0p. Att y Gen. No. 4, Rep. A.G., P.D. No. 12 at 88, 89 (1982).i See also 1965/66 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 312 (1966)-^ This reading is consistent with the views of the framers of Article 48. See 2 Debates in the Constitutional Conven- tion, 1917-1918 (1918) ("Debates").-^ Accordingly, I have reviewed chapter 516 to determine whether any of its sections relate to a subject matter excluded from the referendum process. Based on this review, I have concluded that §§ 1 and 14 ofchapter 5 16 relate to "religion, religious practices or religious institutions" and that, therefore, chapter 516 cannot be the subject of a referendum."^ Chapter 516, when it becomes effective, will generally amend the anti- discrimination laws found in chapter 15 IB of the General Laws to include the prohibition against discrimination on the basis of sexual orientation. Included in chapter 15 IB as it currently appears is an exemption which generally permits religious institutions to discriminate in their employment and admission prac- tices. Section 1 and, in similar terms, S 14 ofchapter 516 would amend chapter 15 IB to broaden that exemption by adding the proviso that "notwithstanding the p.D. i: 13 provisions of any general or special law nothing herein shall be construed to bar any religious . . . institution . . . from taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, cus- tom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained." St. 1989, c. 516, § 1."* This broadened religious exemption applies not only to discrimination on the basis of sexual orientation but also to all of the anti-discrimination provisions of chapter 151 B. Thus §§ 1 and 14 alter the legal status of religious institutions with respect to discrimination on the basis of such characteristics as race, sex, national origin, age, and handicap. The full text of §^ 1 and 14 are set forth in the margin.'' I begin my analysis with the proposition that the words of Article 48 ''are to be given their natural and obvious sense according to common and approved usage." See 1949/50 Op. Atfy Gen., Rep. A.G., P.D. No. 12 at 72, 73 (1950), and cases cited. Under any ordinary sense of the word "relate," §§ 1 and 14 relate to religion, religious practices and institutions. Both sections by their express terms directly provide for special treatment of "any religious or denominational insti- tution or organization." Cf. Commonwealth v. Morash, 402 Mass. 287. 293-294 (1988). reversed on other grounds sub nom. Massachusetts v. Morash. 109 S.Ct. 1668 (1989) ("a law "relates to' an [area], in the normal sense of the phrase, if it has a connection with or reference to such a[n area]."). In allowing a referendum on a law permitting the dissemination of certain kinds of birth control informa- tion, the Supreme Judicial Court in 1941 noted that "[t]he proposed law makes no discrimination by reason of the religious views of the persons within its scope" and that "[r]eligion is not a factor in [the law's] application . . ." Opinion of the Justices, 309 Mass. 555, 558-559 (1941 ). Here, in sharp contrast, §§ 1 and 14 make an institution's connection with religion the sole factor in the application of the exemption, and make "religious principles" the sole basis upon which such dis- crimination is permitted. The relationship of §§ 1 and 14 to religious institutions is also clear when these provisions are considered in the context of chapter 516 as a whole. Chapter 516 generally prohibits discrimination on the basis of sexual orientation. Sections 1 and 14, however, exempt religious institutions from this general prohibition. A law that establishes a general rule, but exempts religious institutions from its application, manifestly "relates" to religious institutions. In this regard, chapter 516 is like St. 1950, c. 400, which Attorney General Francis E. Kelly found to be excluded from the referendum process because it generally provided school committees with the authority to disapprove of private schools but disallowed any disapproval "on account of religious teaching." 1949/50 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 72-73 (1950). The religious exemption there, like the religious exemption here, "related" to religion. Id. That §§ 1 and 14 relate to religion is even more apparent when these sections are viewed within the broader context of chapter 151B, the statute they amend. Chapter 516 does not merely create a prohibition against discrimination on the basis of sexual orientation and then subject that prohibition to a religious exemp- tion. The expanded religious exemption created by chapter 516 applies to a variety of anti-discrimination prohibitions already existing in Chapter 15 IB. Were chapter 5 1 6 to be repealed, religious organizations would lose the benefit of this expanded exemption with respect to all of the anti-discrimination prohibi- tions that would continue to exist. Such a diminution of the freedom of religious inscitutions is not properly placed before the voters. Cf. Opinion of the Justices, 14 f.U. 1/ 309 Mass. 555, 559 ( 1941 ) (finding measure unrelated to religion because it "will not interfere with the freedom of any person within its scope to act in strict accordance with his religious views"). The exclusion of laws relating to religious institutions from the referendum and initiative process reflects the profound concern of those present at the Constitu- tional Convention of 1917-1918 "that to promote civic harmony the irritating question of religion should be removed as far from politics as possible." Bloom v. School Committee ofSpringfield, 376 Mass. 35, 39 (1978). Mr. Swig of Taunton, the author of the exclusion, noted that: We have some men in politics who make religion a profession. They try to get political preferment because of their religious belief ... I am endeavoring, by means of my amendment, to pro- tect the initiative and referendum from the efforts that will be made ... to drag constantly before the people these religious fights. 2 Debates at 767. Mr. Curtis of Boston concurred: It seems to me that all religious subjects would be handled better by considering them before the Legislature than in . . . making them the subject of a general discussion by the people at large. 2 Debates at 768. The framers clearly had in mind religious measures of the type found in chapter 516. Chapter 516 includes a broad "preferment" of religious institutions that permits such institutions to discriminate on the basis of race, color, religious creed, national origin, sex, age, ancestry, handicap, and the new category of sexual orientation in ways not permitted of any other persons or organizations. This preferment has been considered and enacted by the Legislature. If it were made the subject of a referendum, the public would be permitted to vote directly on how religious institutions may conduct themselves. Under the plain terms of Article 48, this is simply not permitted. In conclusion, I note that chapter 516 has engendered considerable contro- versy, and that this controversy has not centered on the sections of the law on which this opinion focuses. However, Article 48 of the Massachusetts Constitu- tion requires that no law may be repealed through the referendum process if any of its provisions relate to religion. The law that would be repealed here expands the freedom of religious organizations from laws prohibiting discrimination not just on the basis of sexual orientation but also on the basis of such characteristics as race and national origin. Because chapter 516 thus relates to religion, it may not be subject to the referendum process. You should not, therefore, provide blank forms for the use of subsequent signers of the petition. Very truly yours. JAMES M. SHANNON ATTORNEY GENERAL P.D. 12 15 ' In this opinion. Attorney General Francis X. Bellotti found that St. 1982, c. 455 could not be submitted to the referendum process because three of its twelve sections related to the excluded matter of "compensation of judges." The remaining sections related to compensation of the members of the General Court, the Governor, other constitutional officers and court clerks. Id. at 88-89. - In this opinion. Attorney General Edward W. Brooke found that the referendum process may be applied only to whole legislative enactments, each part of which must not relate to an excluded matter. Accordingly, his analysis focused on the three (of eighty-one) potentially problematic sections of St. 1966, c. 14, and he acknowledged that if the legislation violated Part III of Article 48 "m any way. . . it may not lawfully be the subject of a referendum petition." Id. at 314 (emphasis supplied). ^ At the Constitutional Convention which adopted Article 48, the delegates specifi- cally rejected a provision that would have permitted a referendum to be held on a part of a law. See 2 Debates at 3-6, 674-678, and 694-702. In so doing, the framers noted that even "small parts" of a law may be essential to the law's constitutionality, functioning, or purpose, or may reflect a legislative compromise essential to the passage of the entire law. Id. at 694-696, 699. " In light of this conclusion it is unnecessary for me to determine whether chapter 5 1 may fall within any of the other exclusions of Article 48, Part III. Nor do I consider the application of additional exclusions from the referendum contained in Part II of Article 48. This provision excludes from both the referendum and the initiative process any "proposition inconsistent with any one of [several] rights of the individ- ual," notably including "the right of access to and protection in courts of justice." Amendments, Art. 48, The Initiative, Pt. II, § 2, H 3. "^ I need not, for the purposes of this opinion, determine the precise contours of the legal effect of the language added to these sections, set forth in n. 6, infra. I merely note that language has been added, and that basic principles of statutory construction require that they not be considered superfluous. International Organization ofMasters V. Woods Hole, Martha 's Vineyard & Nantucket Steamship Authority , 392 Mass. 811,813 (1984), citing Casa Loma, Inc. v. Alcoholic Beverages Control Commission, 111 Mass. 231,234(1979). *" Both§§ 1 and 14ofchapter516would repeal present law, and then reinsert language identical to that repealed together with new language. I have highlighted the language of §§ 1 and 14 that have not heretofore appeared in chapter 15 IB: SECTION 1. Subsection 5 of section 1 of chapter 15 IB of the General Laws, as appearing in the 1988 edition, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence: Notwithstanding the provisions of any general or special law nothing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or religious purposes, which is operated, supervised, or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from giv- ing preference in hiring or employment to members of the same religion or from taking any action with respect to matters of em- ployment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or main- tained. SECTION 14. Said section 4 of said chapter 151B, as so appear- ing, is hereby further amended by striking out the third paragraph and inserting in place thereof the following paragraph: Notwith- standing the provisions of any general or special law nothing herein shall be construed to bar any religious or denominational institu- tion or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or con- trolled by or in connection with a religious organization, from limiting admission to or giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained. The words beginning with "taking any action . . ." replace the words "making such a selection as is" which is the only language that § 14 of the new law repeals and does not reinsert. P.D. 12 17