GAY LESBIAN ADV. v. ATTORNEY

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Docket Number

SJC-08539

Attorney(S)

Jennifer L. Levi (Scott D. Pomfret with her) for the plaintiffs. James J. Arguin, Assistant Attorney General (Pamela L. Hunt, Assistant Attorney General, with him) for the defendants. The following submitted briefs for amici curiae: Peter F. Zupcofska Daniel J. Jackson for Massachusetts Psychological Association others. William N. Eskridge, Jr., of Connecticut, for Massachusetts Lesbian Gay Bar Association others. Jack T. Fredyma, pro se. Sarah R. Wunsch, David Plotkin, Carlynn Magliano, Erica Templeton for American Civil Liberties Union of Massachusetts.

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Smart Summary

Factual and Procedural Background

The plaintiffs, including individuals and the organization Gay Lesbian Advocates Defenders (GLAD), challenged two provisions of the Commonwealth of Massachusetts' "Crimes against Chastity, Morality, Decency and Good Order" statutes: G.L. c. 272, § 34, prohibiting the "abominable and detestable crime against nature," and G.L. c. 272, § 35, prohibiting "any unnatural and lascivious act with another person." They alleged these laws violated their rights to privacy, equality, free expression, and freedom from cruel or unusual punishment under the Massachusetts Declaration of Rights.

The plaintiffs brought their challenge under the Declaratory Judgment Act, G.L. c. 231A, seeking a judicial determination despite no criminal charges pending against them. The complaint was filed before a single justice of the Supreme Judicial Court of Massachusetts, who reserved and reported the case to the full court. The defendants—Attorney General and district attorneys for Northern and Suffolk districts—stipulated they would not prosecute consensual private conduct absent probable cause of public or non-consensual conduct.

Legal Issues Presented

Whether the challenged statutes, G.L. c. 272, §§ 34 and 35, violate the rights to privacy, equality, free expression, and freedom from cruel or unusual punishment guaranteed by the Massachusetts Declaration of Rights.
Whether the plaintiffs have presented an actual controversy sufficient to invoke declaratory relief under G.L. c. 231A, given that no criminal charges are pending.
Whether the court's prior holdings regarding private consensual acts under § 35 extend to § 34 as well.

Arguments of the Parties

Plaintiffs' Arguments

The statutes violate constitutional rights to privacy, equality, free expression, and freedom from cruel or unusual punishment.
They fear arrest and prosecution for consensual acts conducted in locations they believe to be private but which might be construed as public.
They contend that a facial challenge to the statutes suffices to establish an actual controversy under the Declaratory Judgment Act.

Defendants' Arguments

The defendants stipulated they will not prosecute consensual conduct occurring in private absent probable cause that the conduct was public or non-consensual.
They rely on prior case law establishing that consensual private conduct is not prohibited by § 35, and this rationale extends to § 34.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Balthazar, 366 Mass. 298 (1974)	Consensual private conduct is not prohibited by § 35; "unnatural and lascivious acts" include oral-genital and oral-anal contact.	The court clarified that holdings in Balthazar extend to § 34 as well, confirming private consensual acts are not prosecutable under either statute.
Commonwealth v. Ferguson, 384 Mass. 13 (1981)	§ 35 aims to prevent conduct that might offend persons present in public places; not designed to punish private consensual acts.	The court relied on this to support the stipulation that prosecution requires probable cause of public or non-consensual conduct.
Commonwealth v. Scagliotti, 373 Mass. 626 (1977)	Determination of whether conduct occurs in public is a factual question; public exposure depends on defendant's intent or recklessness.	The court emphasized that whether conduct is public or private is a fact-intensive inquiry not resolved on the pleadings.
Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142 (1978)	Declaratory relief requires an actual controversy; speculative or general claims insufficient.	The court found plaintiffs' allegations too general to establish an actual controversy, paralleling the lack of controversy in Bunker Hill.
District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980)	Actual controversy exists where plaintiff faces imminent prosecution under a statute with severe penalties.	The court distinguished this case, noting plaintiffs here face no pending charges, unlike in Watson.
Wakefield v. Attorney Gen., 334 Mass. 632 (1956)	Declaratory relief requires an actual controversy; no advisory opinions.	Supported the court's conclusion that without an actual controversy, declaratory relief is unavailable.

Court's Reasoning and Analysis

The court began by recognizing the plaintiffs' challenge to the constitutionality of the statutes prohibiting certain sexual acts, emphasizing that no criminal charges were pending against any plaintiff. It reaffirmed prior holdings that consensual private conduct between adults is not prosecutable under § 35 and clarified that this principle extends to § 34 as well.

The court noted the defendants' stipulation not to prosecute absent probable cause of public or non-consensual conduct, aligning with the established legal framework. It further explained that whether conduct occurs in a public or private place is a fact-specific inquiry requiring a fact finder, and the plaintiffs' broad allegations regarding locations were insufficient to establish an actual controversy.

Invoking the Declaratory Judgment Act, the court underscored that declaratory relief requires a real, immediate controversy, not a hypothetical or generalized dispute. It compared this case to Bunker Hill, where the lack of a concrete controversy led to dismissal. The court rejected the plaintiffs' reliance on Watson, distinguishing that case by the presence of pending capital charges, which created an actual controversy.

Consequently, the court concluded that the plaintiffs failed to meet the threshold of an actual controversy necessary to invoke declaratory relief and remanded the case for dismissal.

Holding and Implications

The court ordered that the case be remanded to the county court for dismissal of the complaint due to lack of an actual controversy under the Declaratory Judgment Act.

This decision means that without pending prosecution or a concrete factual dispute over whether the challenged conduct occurred in public or private, plaintiffs cannot obtain a declaratory judgment on the constitutionality of the statutes. The court did not set new precedent on the substantive constitutional claims but clarified that the protections for private consensual conduct apply to both challenged statutes.

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GAY LESBIAN ADVOCATES DEFENDERS others vs. ATTORNEY GENERAL others. John Doe, Mark Merante, Adrien Saks, Sue Hyde, Justin Deabler, Beth Jacklin, Carl Koechlin, N. Tyson Smith-Ray, and Tim Smith-Ray. The district attorney for the Northern district and the district attorney for the Suffolk district.

Practice, Civil, Declaratory proceeding. Unnatural and Lascivious Act.

This court provided clarification that its holdings in Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), and Commonwealth v. Ferguson, 384 Mass. 13, 16 (1981), concerning acts conducted in private between consenting adults, extened to G.L. c. 272, § 34.[133-134]

The declaratory judgment statue, G.L. c. 231A, could not be utilized by certain plaintiffs, against whom no criminal charges were pending, to obtain a judicial determination that G.L. c. 272, § 35, prohibiting the "abominable and detestable crime against nature," and G.L. c. 272, § 35, prohibiting "any unnatural and lascivious act with another person," violated their rights to privacy, equality, free expression, and freedom from cruel or unusual punishment guaranteed by the Massachusetts Declaration of rights, where there was no actual controversy.[134-136]

IRELAND, J.

The plaintiffs challenge two provisions of the Commonwealth's "Crimes against Chastity, Morality, Decency and Good Order," which prohibit the "abominable and detestable crime against nature," G.L.c. 272, § 34, and "any unnatural and lascivious act with another person," G.L.c. 272, § 35. They claim that these laws violate the rights to privacy, equality, free expression, and freedom from cruel or unusual punishment guaranteed by the Massachusetts Declaration of Rights. No charges are pending against any of the plaintiffs; they bring this challenge under the Declaratory Judgment Act, G.L.c. 231A (Act). The plaintiffs filed a complaint before a single justice of this court, who reserved and reported the case to the full court. Because there is no actual controversy, we remand the case to the county court for dismissal of the complaint.

Our cases have construed the "crime against nature" to mean sodomy, encompassing anal penetration and bestiality, see Commonwealth v. Gallant, 373 Mass. 577, 587 (1977), and "unnatural and lascivious act[s]" to include oral-genital and oral-anal contact, see Commonwealth v. Balthazar, 366 Mass. 298, 303 (1974).

The defendants — the Attorney General and the district attorneys for the Northern and Suffolk districts — stipulated that their offices will not prosecute anyone under the challenged laws absent probable cause to believe that the prohibited conduct occurred either in public or without consent. This stipulation comports with the law:Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), established that "consensual conduct in private between adults is not prohibited by § 35." Commonwealth v. Ferguson, 384 Mass. 13, 16 (1981), quotingCommonwealth v. Scagliotti, 373 Mass. 626, 628 (1977), explained that the purpose of § 35 is "to prevent the `possibility that the defendant's conduct might give offense to persons present in a place frequented by members of the public'. . . . However, the statute is not designed to punish persons who desire privacy and who take reasonable measures to secure it." This rationale applies equally to the "crime against nature," and we now clarify that our holdings in the Balthazar andFerguson cases concerning acts conducted in private between consenting adults extend to § 34, as well.

With the exception of Gay Lesbian Advocates Defenders (GLAD), the plaintiffs are adults who have engaged in consensual acts of the type covered by the challenged laws in places that they believe are private but fear might be construed as public. These places include their residences, where their actions may be visible from nearby residences or to passersby; wooded outdoor areas; vehicles parked in a parking lot; and secluded areas of public beaches. They fear arrest and prosecution, and the attendant consequences for their careers and personal lives. Of the plaintiffs, only John Doe has ever been arrested for violating either of the challenged laws, and the Commonwealth nol prossed that charge.

GLAD is an organization dedicated to the legal rights and interests of lesbians, gay men, and bisexuals, and seeks to challenge the constitutionality of the challenged laws on behalf of its donors and members to spare them the stigma associated with being charged with violating these laws. Because of our disposition of this case, we need not address GLAD's claim to representative standing. See Slama v.Attorney Gen., 384 Mass. 620, 624 (1981) ("Representative standing is generally limited to cases in which it is difficult or impossible for the actual rightholders to assert their claims").

The Act provides that this court "may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen." G.L.c. 231A, § 1. Although the Act's purpose is remedial and it is to be liberally construed, G.L.c. 231A, § 9, if there is no actual controversy, then declaratory relief is not available. See Wakefield v.Attorney Gen., 334 Mass. 632, 635 (1956). An actual controversy exists where there is:

"a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation."

Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142, 144 (1978) (Bunker Hill), quoting School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 516, 518 (1946).

In Bunker Hill, supra, prior to exhibition, distribution, or any threat of prosecution, the plaintiff sought a declaration that a film was not obscene and that it would not be subject to prosecution if it exhibited or distributed it. Although the plaintiff had alleged that the film depicts "explicit sexual congress," and that some theatre owners and distributors of films depicting such scenes had been prosecuted, the allegations were "insufficient and too general for a judge to conclude that an actual controversy exists under the obscenity statute." Id. at 144, 145. The request for declaratory relief was denied as nothing more than a request for an advisory opinion, to which parties are not entitled. See id. at 145, and cases cited.

The parallel between Bunker Hill and the present case is compelling. The only potentially disputed issue in this case is whether the plaintiffs' conduct occurs in public or in private. Because a "place may be public at some times and under some circumstances, and not public at others," Commonwealth v. Ferguson, supra at 16, such determinations are for a fact finder. See Commonwealth v. Scagliotti, 373 Mass. 626, 628-629 (1977). The "essential query" for determining whether the prohibited acts occur in public is:

"whether the defendant intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons. . . . Conduct is not established as public merely because another person actually observes the conduct. . . . The Commonwealth must prove that the likelihood of being observed by casual passersby must have been reasonably foreseeable to the defendant, or stated otherwise, that the defendant acted upon an unreasonable expectation that his conduct would remain secret." (Citations omitted.)

Commonwealth v. Ferguson, supra. The plaintiffs' stipulation that they commit these acts in their residences, vehicles parked in a parking lot, wooded outdoor areas, and secluded areas of public beaches, is too general to permit us to conclude that there is an actual controversy over whether the location of their conduct is public or private. See Bunker Hill, supra at 144-145. See alsoCommonwealth v. Ferguson, supra at 17-19 (suggesting kinds of evidence that would support finding on public or private nature of venue).

The plaintiffs argue that they have met the actual controversy requirement simply by bringing a facial challenge to the validity of the statutes, relying on District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980). Their reliance is misplaced. In Watson, the statute at issue provided for capital punishment and the defendants were four men awaiting trial for murder in the first degree, at risk of being put to death. Id. at 649-650. There was no question but that an actual controversy existed in that case. See id. at 660. See also Benefit v.Cambridge, 424 Mass. 918, 921-922 (1997) (real dispute exists where plaintiff arrested numerous times and subject to continuing likelihood of prosecution); Commonwealth v. Baird, 355 Mass. 746, 755 (1969) (defendant's arrest and prosecution demonstrated actual controversy such that Act would have been available). Cf. Bunker Hill, supra at 145 (affirming dismissal of challenge to obscenity statute under Declaratory Judgment Act for lack of actual controversy).

We remand the case to the county court for dismissal of the complaint.

So ordered.