LGBT Rights

4:50 PM November 14, 2016

Ready to Fight for You

By |November 14, 2016|Discrimination, LGBT Rights, Race, Same Sex Marriage|0 Comments|

The election of Donald Trump has caused a great deal of concern amongst those who may be impacted by his policies. Fortunately, for those of us in Massachusetts, the Commonwealth has strong anti-discrimination laws that will remain in effect regardless of changes to Federal laws. If you are being harassed based on your minority status (race, age, sex, disability, national origin, sexual orientation) please don’t hesitate to contact me. Additionally, if you are in a same-sex partnership with a child, now is a good time to apply for a second parent adoption to secure your parental rights in less progressive states.

Contact me at: 617-807-0949 or matt@barisonlaw.com

8:47 PM March 26, 2015

Personal Liberties & Ballot Initiatives: MA v. CA

By |March 26, 2015|Constitutional Law, LGBT Rights|0 Comments|

In many states, including Massachusetts, residents can legislate directly through the ballot initiative process. Recently, such proposals have included: expanding bottle deposits, repealing the casino law, and mandating paid employee sick leave.

In MA, the process for bringing forth such petitions is detailed in Article 48 of the Massachusetts Constitution. First, the proposal must have the support of ten voters. Then, the Attorney General must review the proposal to make sure it does not touch upon “excluded matters,” which themselves are enumerated in the MA Constitution. For instance, ballot measures regarding religion, religious practices, or the appointment of judges are strictly prohibited.

The Massachusetts Constitution also prohibits ballot petitions that infringe on personal liberties. Such liberties are found in the first part of the MA Constitution, which is known as the “Massachusetts Declaration of Rights.” While the Massachusetts Constitution was revolutionary at the time it was ratified in 1780, it is very much a living document that has changed with the times. In 1976, the language pertaining to personal liberties was expanded to state: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” see MA Constitution, Article CVI.

So long as a ballot initiative does not infringe upon personal liberties or other excluded matters, the Attorney General will certify the initiative for filing with the Secretary of State. Having passed this first hurdle, initiative proponents must then gather signatures. (Specifically, proponents must gather a number of signatures equal to 3% of votes cast for Governor in the most recent election, roughly 69,000.) If this second hurdle is cleared, the initiative is sent to the Legislature, which can either approve it, disapprove it, propose a substitute, or take no action. If the legislature does not enact the proposed initiative within five months, the proponent must then gather a second round of signatures (this time 0.5% or votes cast for Governor in the most recent election, approximately 11,000). If this third hurdle is cleared, and all signatures are verified, then the initiative is placed on the ballot. The Secretary of State and Attorney General are responsible for creating a summary of the proposed initiative along with easy-to-understand explanations of the effect of a yes or no vote. Ballot measures that pass with a simple majority of votes take effect in thirty days.

Now that you are an expert on Massachusetts ballot initiatives, let’s take a look at California. In the Golden State, initiative proponents must first submit a text of the measure to a lower level official at the California Attorney General’s office, along with contact information and a $200 deposit. After a 30 day public review period, proponents may, but need not, alter the text of the initiative. After the initial public comment period, the Attorney General must draft a brief title and summary of the proposed petition within 15 days. Only then may the proponent begin to gather signatures. If the requisite signatures are gathered and verified, the initiative is put to vote.

You will notice that the process in California does not include initial review of the proposal by the Attorney General to make sure it does not infringe upon personal liberties. You will also notice that the Attorney General must draft a title and summary of the proposed petition prior to signature collection.

Such is the state of the law in California, and thus the basis of the conundrum facing Attorney General Kamala Harris. Harris has been presented with a petition drafted by California lawyer Matthew McLaughlin called the “Sodomite Suppression Act,” which proposed that gay people be “put to death by bullets to the head or by any other convenient method.” Now, had such a ballot initiative been proposed in Massachusetts, it would fail initial review by the Attorney General, as it clearly violates the Massachusetts Declaration of Human Rights. However, as noted, the California Attorney General is not specifically vested with the authority to make such preliminary determinations of constitutionality. AG Harris is thus in the un-enviable position of being mandated to draft a title and summary of this vile proposition. But Harris isn’t going to just roll over and do it; instead, she has filed an action in the Sacramento Superior Court seeking judicial relief from her duty to prepare the title and summary. While the California AG generally does not have the power to prevent an initiative from moving forward to the signature gathering stage, Harris has argued that in this case, the proposal is unconstitutional on its face, and therefore presents a unique situation.

I’ll update this space once a decision is reached. For now, though, despite all we hate about Massachusetts politics, lets give credit to John Adams and the men whose foresight ensured that such crass and hateful publicity stunts will never see the light of day in our fair Commonwealth.

4:04 PM June 23, 2014

Obama Administration Quietly Advances Transgender Rights

By |June 23, 2014|LGBT Rights|0 Comments|

‘It’s quiet by design, because the louder you are in Washington, the more the drama.”

Ever since “coming out” in support of same-sex marriage in May of 2012, President Obama has been working behind-the-scenes to advance the rights of transgender Americans. The administration has expanded the reach of hate crimes legislation, increased access to health care and strengthened public accommodation laws.

This change has come solely from the Executive branch, as Congress continues its reign of dysfunction. Nonetheless, these developments represent a sea change that bodes well for other efforts, such as those here in Massachusetts. (See http://www.masstpc.org/take-action/current-legislation/2013-public-accommodations-bill/)

Source:
https://www.bostonglobe.com/news/nation/2014/06/21/without-fanfare-obama-advances-transgender-rights/I6fcinOgtkDCxVhlZF8eCJ/story.html

3:15 PM May 28, 2014

Same Sex Marriage’s Inexorable March

By |May 28, 2014|LGBT Rights, Same Sex Marriage|0 Comments|

As federal courts continue to strike down states' bans on same-sex marriage, it is inevitable that Supreme Court will soon weigh in on the issue. Lawyer Paul Smith, who was part of the team that successfully overturned DOMA, predicts that the Court will rule in favor of same sex marriage within one to two years.

2:30 PM March 5, 2014

St. Patrick’s Day Parade LGBT Controversy

By |March 5, 2014|1st Amendment, LGBT Rights|0 Comments|

In light of the still-ongoing controversy regarding LGBT groups’ efforts to march in Boston’s St. Patrick’s day parade, I’d like to revisit the 1995 Supreme Court case that upheld the parade organizers’ right to exclude such groups.

The St. Patrick’s day parade has a long history in Boston. The City of Boston was the official sponsor of the parade until 1947, at which point Mayor Curley granted authority over the parade to the South Boston Allied Veterans War Council, a group of individuals from various South Boston veterans groups. Nonetheless, the City continued to fund the parade, and allowed parade organizers to use the City seal until 1992.

In 1992, a group of Boston residents formed the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB). Although GLIB was denied permission to march in the 1992 parade, it obtained a court order from famed Judge Hiller Zobel allowing it to do so. GLIB members marched through the streets of Southie in the 1992 and 1993 parades, escorted by riot police, all the while subject to vicious insults, hurled beer bottles, and general nastiness. Due to the uproar, the parade organizers decided to scrap the 1994 parade altogether. By the time the parade returned to the streets in 1995, the organizers had won a decisive victory at the Supreme Court.

Before we get to the Supreme Court’s ruling, it is important to understand the rationale behind Massachusetts state courts’ rulings that GLIB was entitled to participate in the parade. The Superior Court, which heard the case initially, based its ruling on the Massachusetts Public Accommodations Law. In its current iteration, this law “prohibits making any distinction, discrimination, or restriction in admission to or treatment in a place of public accommodation based on religion, creed, class, race, color, denomination, sex, sexual orientation, nationality, or because of deafness or blindness, or any physical or mental disability.” The court rejected the parade organizers’ argument that the parade was a private event, instead classifying it as an “open recreational event” therefore subject to the Commonwealth’s public accommodations laws. This state’s highest court, the Supreme Judicial Court, agreed, affirming GLIB’s right to march.

As a brief aside, when this case reached the Supreme Court, the Justices noted that Massachusetts’ public accommodations laws had a “venerable history.” These laws arose from English common law, which prohibited discrimination by innkeepers and blacksmiths; after the Civil War, Massachusetts became the first state to explicitly prohibit such discrimination based on race. As society evolved, the number of protected categories grew; activists are currently attempting to get “gender identity” added to the list to ensure the protection of transgender individuals.

The case reached the Supreme Court in 1995. The Court began its analysis with a look at parades, and the broader social function they serve. Quoting a treatise on street theater in 19th-century Philadelphia, the Court noted that: “Parades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration.”

The Court thus defined “parade” to indicate marchers who were making “some sort of collective point.” Regardless of whether the “collective point” of a parade was narrow or broad, the Court held that the act of making that point was a form of expression entitled to protection under the First Amendment.

Once the Court established that the parade itself was a form of expressive activity, it was easily able to find that the organizers had the right to exclude messages with which it did not agree. The Court found that the case “boil[ed] down to the choice of a speaker not to propound a particular point of view,” and that such choice was “beyond the government’s power to control.”

The parade organizers thus had the right to select which groups, or units, could march in the parade. The inclusion of a particular unit in the parade would suggest that the organizers supported that unit’s message; conversely, the exclusion of a particular group would reflect the organizers’ rejection of that group’s message.

The Court held that Commonwealth’s public accommodations law could not be applied to expressive activity, as it would, in effect, “require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.”

The Court concluded by stating that the Commonwealth had no business “promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” The prior state court rulings could not stand, as they unconstitutionally forced the parade organizers to “alter the expressive content of their parade.”

And so it is. Our former Mayor, Thomas Menino boycotted the parade from 1994 until his retirement last year. Our current Mayor, Marty Walsh, intends to do so unless and until parade organizers relent and allow LGBT groups to march openly. John “Wacko” Hurley, the parade’s organizer, had his day in the Supreme Court and won; the position he espouses towards his LGBT brethren, however, is now, more than ever, a loser.

Sources:

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338

Boston Globe Archives

Massachusetts Public Accommodation Law (M.G.L c. 272, s. 92A, 98 and 98A)