Mass ConLaw Flashcards
Advisory Opinions
Ok for:
(1) Federal court questions on unsettled MA law, and
(2) Executive/legislative questions on constitutionality of pending legislation
Equal Protection - suspect classes
Religious, ethnic, handicap (art. 114), sex-based (all get strict scrutiny)
*In addition to race, alienage, and national origin
Equality under the law
Art. 1: Equality can’t be abridged/denied based on sex, race, color, creed, or national origin
Rational Basis Test
Applies in nonsuspect class EP analysis, more “bite” than Federal test:
(1) balance harm to disadvantaged class with public purpose of classification,
(2) survives if any reasonable facts can be conceived
Same Sex Marriage
Violates equality and liberty of provisions to deny
Speech injunctions
Injunction against discussing a case must be based on compelling state interest with no reasonable less restrictive means available
General concern for anonymity of children not enough without specific finding of harm
Student Expression
All protected, even lewd/vulgar, as long as it is not disruptive
Charitable Solicitations
It is an unreasonable/overbroad content-based restriction to prohibit peaceful begging
Freedom of Religion
Art. 46 Test: Compelling government interest and narrowly tailored
Neutral Laws
P must have: (1) Sincere belief, (2) that conflicts with and is burdened by the law
State must show: (1) Regulation serves unusually important government goal, and (2) Exemption would substantially hinder that goal
Anti-Discrimination Statutes: Generally
Individuals protected from state AND private action
Employment
Chapter 151B
(1) No discrimination in hiring/firing/promoting
(2) Permissible based on “bona fide” occupational qualification
(3) N/A for businesses with fewer than 6 employees
Housing
Chapter 151B Discrimination against any protected class is forbidden
Credit and Services
Chapter 151B Discrimination against any protected class is forbidden
Protected Classes: In general
Chapter 151B
Race, color, religion, national origin, ancestry, sex, sexual orientation
*Many provisions also bar discrimination against handicapped, over 40, and based on marital status
Protected Class: Age
Chapter 151B
OK for youth but not for over 40; mandatory retirement generally NOT ok.
Protected Class: Handicap
Chapter 151B
Reasonable accommodations that do not impose an undue financial/administrative burden or would not require employer to disregard essential job functions
*note: nonchronic impairments not considered handicaps
Protected Classes: Sex, Sexual Harassment, Sexual Orientation
Chapter 151B
(1) Sex: No discrimination for pregnancy or other sex related medical conditions
(2) Sexual Harassment: Even same sex is forbidden regardless of sexual orientation
(3) Sexual Orientation: No protection for persons attracted to minors
Protected Class: Religion
Employer can’t have condition of employment that forces violation of sincerely held religious belief
*Sincerity does not mean required under the religion
Chapter 151B and Procedure: Massachusetts Commission Against Discrimination (MCAD)
6 month filing deadline (if missed all remedies barred under 151B- not common law or other statutory claims though)
If 151B does not apply claims under MCRA and MERA are not precluded
Massachusetts Equal Rights Act (MERA)
Al persons have the same rights
6 month statute of lmiitations
Massachusetts Civil Rights Act (MCRA)
- Prohibits any person from interfering with federal or state constitutional rights
- “Secured Rights” are protected
- Includes private persons
- SJC has narrowly construed language of threat/force
- Allows for injunctive relief, damages, and attorney’s fees
Equal Pay Act
No different pay for “work of like or comparable character/operations”
(1) Substantive content comparable (common duties)
(2) Comparable skills, efforts, responsibilities, working conditions
* Also requires that reasonable maternity leave be given
Massachusetts Public Accommodation Law
Forbids discrimination in place of public accommodation , which is defined expansively
*Lactating mothers protected
Bear Arms
No right in Massachusetts
Freedom of Movement
Right to move about freely in public is fundamental and therefore must meet strict scrutiny
Free Elections
Art. 9 forbids state/private interference with the electoral process
Chapter 151B: Burdens of Proof
P has initial burden of establishing prima facia case of discrimination; if D produces legit non-discriminatory reason, burden shifts back to P to prove it is just a pretext
Chapter 151B: Remedies
(1) Injunctive relief from MCAD and superior court
(2) Compensatory damages: actual lost/anticipated lost wages and emotional distress (is “natural and probable” with discrimination so no expert needed to establish)
(3) Punitive damages by superior court only
