Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.
Constitutional Law, Equal protection of laws, Sex discrimination, Sports.
The enactment of a pending bill before the House of Representatives, to permit a public school system to bar females and males from participating jointly in football and wrestling, would be unconstitutional because in violation of art. 106 of the Amendments to the Massachusetts Constitution. [839-842]
On December 22, 1977, the Justices submitted the following answer to a question propounded to them by the House of Representatives.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their answer to the question set forth in an order adopted on November 21, 1977, and submitted to us on November 22, 1977. The order refers to House No. 6723 now pending before the House and entitled "An Act restricting the participation of girls in certain contact sports."
If enacted, the bill would add to G. L. c. 76, § 5, as most recently amended by St. 1973, c. 925, § 9A, a sentence stating that "he provisions of this section shall not be construed so as to authorize the participation of girls with boys in the following contact sports teams: football and wrestling." Section 5 of G. L. c. 76, which is set forth in full in the margin, *fn1 provides, among other things, that no person shall be excluded on account of sex from the advantages, privileges, and courses of study in a public school of any town. We accept the Conclusion implicit in the question presented to us that, if enacted, House No. 6723 by its terms would permit a school system to bar females and males from participating jointly in football and wrestling.
In its order, the House expressed grave doubt as to the constitutionality of the proposed bill in light of art. 106 of the Amendments to the Constitution of the Commonwealth, commonly known as the State equal rights amendment or State E.R.A. Article 106 of the Amendments was approved by the people at the State election held in 1976. See 1976 Acts and Resolves at 840-841. The Amendment added a sentence to art. 1 of Part I of the Constitution reading as follows: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."
The question presented to us is:
"Would the enactment of House, No. 6723 be in violation of Article CVI of the Articles of Amendments to the Constitution of the Commonwealth in that said bill would allow discrimination against certain women by prohibiting said women from participating with men in certain contact sport teams?"
As a result of our invitation, briefs have been received from the Attorney General of the Commonwealth, jointly from the Governor's Commission on the Status of Women and the Women's Rights Project of the Massachusetts Civil Liberties Union Foundation, and by the Massachusetts Board of Education. Each brief argues that, if enacted, House No. 6723 would be a violation of art. 106.
In any analysis of the constitutionality of legislation, the standard against which that legislation is to be tested must be determined first. The Supreme Judicial Court has indicated recently the standard which should be applied to test the constitutionality of government action when a challenge is founded on a claimed violation of art. 106. The court said in Commonwealth v. King, ante, 5, 21 (1977), that under art. 106, discrimination based on sex must be subjected to the same strict judicial scrutiny that had been applied previously under equal protection principles to classifications based on race, color, creed, or national origin. Such a classification is permissible only if it furthers a demonstrably compelling interest of the State and limits its impact as narrowly as possible consistent with the purpose of the classification. Id. *fn2
Courts in other States which have equal rights provisions concerning sex in their Constitutions generally have applied a strict scrutiny standard for judicial review of any challenged State action involving sex-based discrimination. See, e.g., Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 8 (1971) ("sex alone may not be used to bar a person from a vocation, profession or business"); People v. Barger, 191 Colo. 152, 155 (1976); People v. Ellis, 57 Ill. 2d 127, 132-133 (1974); Rand v. Rand, 280 Md. 508, 515-516 (1977); Commonwealth v. Butler, 458 Pa. 289, 296 (1974). Cf. Hanson v. Hutt, 83 Wash. 2d 195, 198-199 (1973). Indeed, opinions of the Supreme Courts of Washington (Darrin v. Gould, 85 Wash. 2d 859, 871 ), and Pennsylvania (Commonwealth v. Butler, supra at 296) may be read as imposing an absolute prohibition against discrimination based on sex. See Discussion in Rand v. Rand, supra at 512-515. A few courts have applied a less strict standard. The Constitution of Louisiana contains a prohibition against any law which "shall arbitrarily, capriciously, or unreasonably discriminate against a person because of . . . sex . . . ." La. Const. art. 1, § 3. The Supreme Court of that State, by a divided vote, has held that a statute imposing criminal sanctions on a husband for failure to support his wife is constitutional because the legislative classification was within reason. State v. Barton, 315 So.2d 289, 291 (La. 1975). See also Williams v. Williams, 331 So.2d 438, 441 (La. 1976) (statute providing for support order in favor of a wife, but not a husband, makes a rational sex-based classification). *fn3 In Texas, although a Court of Civil Appeals has adopted a strict scrutiny test under its State E.R.A. (Mercer v. Trustees, N. Forest Independent School Dist., 538 S.W.2d 201, 206 [Tex. Civ. App. 1976]), the Court of Criminal Appeals upheld a statute by determining simply that the classification was rationally related to the furthering of a legitimate State interest. Finley v. State, 527 S.W.2d 553, 555 (Tex. Crim. App. 1975). The Supreme Court of Virginia has declared, without explanation, that its constitutional prohibition against "any governmental discrimination upon the basis of . . . sex" (Va. Const. art. 1, § 11) prohibits invidious, arbitrary discrimination on the basis of sex and is no broader than the Federal equal protection clause. Archer v. Mayes, 213 Va. 633, 638 (1973). In the Archer case, the court upheld a statute which gave a woman with a child sixteen years of age or younger the right to claim an exemption from jury duty.
We believe that the application of the strict scrutiny-compelling State interest test is required in assessing any governmental classification based solely on sex. Our State equal rights amendment was adopted at a time when equal protection principles under the State and Federal Constitutions required a level of judicial scrutiny greater than the rational basis test but less than the strict scrutiny test. See Opinion of the Justices, 373 Mass. 883, 887-888 (1977). To use a standard in applying the Commonwealth's equal rights amendment which requires ...