(concurring in part and dissenting in part). I respectfully dissent from the view expressed in the opinion of the court that the answer to the first reported question must be “No.” That question asks whether “the protection against discrimination on the basis of ‘national origin,’ as enumerated in art. 106 of the Amendments to the Massachusetts Constitution, include[s] protection against discrimination on the basis of alienage, i.e., one’s immigration status?” I concur in the court’s opinion that the answer to the third question, “[sjhould a State classification based on alienage be subjected to a ‘rational basis’ standard of review under the Massachusetts Constitution?” is “No.”
1. Question 1. In 1976, Massachusetts voters approved art. 106, amending art. 1 of the Declaration of Rights. See Commonwealth v. King, 374 Mass. 5, 15 n.8 (1977). Article 106, known as the equal rights amendment (ERA), changed the opening words of art. 1 from “All men” to “All people,” thereby rendering it gender neutral, and inserted an equal protection clause: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” “Alien-age” does not appear among the list of protected classes. Nonetheless, the historic backdrop to the enactment of art. 106, as well as its legislative and referendum history, strongly suggest *691that the amendment was intended to incorporate all classifications to which Federal constitutional protection had to that point been extended, as well as to enlarge the scope of State equal protection to include gender.
In the landscape of Federal constitutional law that existed at the time art. 106 was enacted, alienage was firmly established as a suspect classification closely intertwined with national origin classification under the Fourteenth Amendment to the United States Constitution.1 See, e.g., Espinoza v. Farah Mfg. Co., 414 U.S. 86, 96-97 (1973) (Douglas, J., dissenting) (noting that employer’s policy of excluding aliens is de facto policy preferring those bom in this country because “[a]lienage results from one condition only: being bom outside the United States. Those born within the country are citizens from birth. . . . [Discrimination on the basis of alienage always has the effect of discrimination on the basis of national origin”); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420 (1948) (concluding that State law prohibiting issuance of commercial fishing license to any person ineligible for citizenship improperly discriminated against “lawful alien inhabitants, and particularly certain racial and color groups within this class of inhabitants”); Oyama v. California, 332 U.S. 633, 648 (1948) (Black, J., concurring) (noting that California’s Alien Land Law, held to be unconstitutional on basis of national origin, in effect singled out aliens of Japanese ancestry “although the statute [did] not name the Japanese as such” and its terms also applied to “a comparatively small number of aliens from other countries”); Truax v. Raich, 239 U.S. 33, 35, 41 (1915) (Arizona statute that required certain employers to hire at least eighty per cent of workforce from “native-born” citizens held unconstitutional, noting that *692Fourteenth Amendment protection could not “be refused solely upon the ground of race or nationality”).2 Because of this intertwining of the concepts of national origin and alienage in Supreme Court jurisprudence, and because art. 106 includes national origin among its enumerated protected classes, it is therefore likely that the Legislature and Massachusetts voters intended to include alienage within the ambit of the term national origin as used in art. 106.
This view is supported by the genesis of the term “national origin” itself. The template for the enumerated protected classes in the Massachusetts ERA (“sex, race, color, creed or national origin”), as well as a number of other State ERAs passed in the 1970s,3 appears to have been the 1964 Civil Rights Act. See 42 U.S.C. § 2000e-2(b) (2006) (prohibiting employment discrimination on basis of “race, color, religion, sex, or national *693origin”).4 Legislative history as to the source and meaning of the term “national origin” in the 1964 Civil Rights Act and its predecessors further supports the interpretation that the term incorporates the concept of alienage, which presupposes that a person was bom outside the United States.
The term “national origin” was originally employed in executive action and proposed legislation that sought the removal of barriers to citizenship and elimination of national origin quotas in immigration laws, as well the strengthening of civil rights and prevention of employment discrimination based on race, color, religion, or national origin. See, e.g., Executive Order 9346, 3 C.F.R. at 1280 (Supp. 1943); Public Papers of the Presidents of the United States 1, 3 (Jan. 7, 1948). As there employed, national origin meant the nation of one’s birth.5 The several classifications reappear in the Civil Rights Act of 1957, Pub. L. No. 83-315, 71 Stat. 634 (1957), and, with the addition of “sex,” were included in the Civil Rights Act of 1964, Pub. L. No. 88-352,78 Stat. 241, 254 (1964), which prohibits employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(b). According to one *694author, “[t]his context gave the term [national origin] its basic meaning, country of birth, at the time of the passage of the Civil Rights Act of 1964.” Perea, Ethnicity and Prejudice: Reevaluating “National Origin” Discrimination Under Title VH, 35 Wm. & Mary L. Rev. 805, 811 (1994).
As reflected in the legislative history of the 1964 Civil Rights Act, legislators extended the definition of national origin to include the nation in which one’s ancestors were born. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (in Title VII context, terms ancestry or ethnicity and “national origin — the ‘country where a person was bom,’ ” “overlap as a legal matter”). 6
In light of this Federal judicial and legislative context, it is likely that the definition of national origin appearing in art. 106 includes alienage; the history surrounding its enactment casts no doubt on this interpretation. The dominant purpose of art. 106, as reflected in its legislative history, was to expand guarantees of gender equality under the law while enshrining existing Federal equal protection guarantees within the Massachusetts Constitution.7 Similarly, public debate over the ERA prior to its approval by referendum in 1976 supports the view that the voters of Massachusetts intended to incorporate existing Federal protec*695tions as well as gender equality guarantees into the State Constitution.8 Significantly, cases from this court that discuss art. 106 shortly after its passage appear to assume that alienage was included within its protections. See Commonwealth v. King, 374 Mass. 5, 21 (1977) (classifications in art. 106, “with the exception of sex, are within the extensive protection of the Fourteenth Amendment,” citing alienage as example of suspect classification under Graham v. Richardson, 403 U.S. 365 [1971]). See also Care & Protection of Rebecca, 419 Mass. 67, 81 n.12 (1994) (implying State Constitution would protect “classification based on race, alienage, national origin, or religion”); Opinion of the Justices, 373 Mass. 883, 886 (1977) (same).9
*696Based on the foregoing, I would conclude that art. 106 includes alienage within the meaning of national origin, and I would answer “Yes” to the first reported question.
2. Question 3. I agree with the court that the answer to the third question, “[sjhould a State classification based on alienage be subjected to a ‘rational basis’ standard of review under the Massachusetts Constitution?” is “No.”
Federal reimbursement to the States is limited by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996), codified at 8 U.S.C. §§ 1601 et seq. (2006), which restricts eligibility of legal immigrants for federally funded public benefits. Because of PRWORA, the Commonwealth has never received Federal reimbursement for the Commonwealth Care Health Insurance benefits that previously had been expended on behalf of the class of legal aliens at issue here. As the record in this case reflects, this means that, instead of receiving reimbursement of at least fifty per cent for otherwise federally eligible expenditures, the Commonwealth bore responsibility for one hundred per cent of the cost of benefits for the legal alien class. It is understandable that, in a time of economic hardship, the Commonwealth would seek to reduce funding for its social welfare programs. It permissibly may do so if all those entitled to benefits receive the same, though reduced, benefit. However, it may not single out a discrete and insular minority for disparate treatment so that more benefits will be available to the majority group. See Mathews v. Diaz, 426 U.S. 67, 86 (1976); Graham v. Richardson, supra at 374.
By 1976, Federal constitutional jurisprudence had long recognized that State laws discriminating on the basis of alienage were “inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 371, 372 (1971) (“It has long been settled . . . that the term ‘person’ in th[e] context [of the Fourteenth Amendment to the United States Constitution] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside”). See Sugarman v. Dougall, 413 U.S. 634, 642 (1973) (“close judicial scrutiny” applicable to New York statute limiting eligibility for competitive class of civil service positions to citizens).
See also Saucedo, National Origin, Immigrants, and the Workplace: The Employment Cases in Latinos and the Law and the Advocates’ Perspective, 12 Harv. Latino L. Rev. 53, 55 (2009). The author focuses on employment cases to highlight inconsistent treatment among Latino workers, noting that “[i]n employment antidiscrimination law, courts have interpreted the national origin category narrowly, providing protection based on ethnicity without recognizing the extent to which alienage is a part of one’s ethnic traits.” Id. According to Professor Saucedo, this “affects Latinos differently than other minorities, in part because of the intertwined relationship between immigration status and national origin.” Id.
See, e.g., Alaska Const, art. I, § 3 (amendment effective Oct. 14, 1972) (“race, color, creed, sex or national origin”); N.H. Const. part 1, art. 2 (1974) (“race, creed, color, sex or national origin"); Tex. Const. art. 1, § 3a (adopted Nov. 7, 1972) (“sex, race, color, creed, or national origin”); Va. Const. art. I, § 11 (general revision ratified on Nov. 3, 1970) (“religious conviction, race, color, sex, or national origin”).
Massachusetts was one of fourteen States that enacted ERAs in the 1970s as part of a nationwide campaign to ensure equal rights for women under the law. See Wharton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 Rutgers L.J. 1201, 1288-1293 (2005) (Wharton). The equal protection clauses in each of these State ERAs include either gender or sex among their protected classes, and eight of the fourteen include “national origin.” Specific enumeration of protected classes varies from State to State. See, e.g., Conn. Const. art. I, § 20, as amended by art. V (adopted Nov. 27, 1974) (“religion, race, color, ancestry, national origin or sex”); Mont. Const. art. 2, § 4 (ratified June 6, 1972) (“race, color, sex, culture, social origin or condition, or political or religious ideas”). None contains the word “alienage.” Wharton, supra. For the text of all State equal rights provisions, including the years in which they were passed, see id.
As noted in the court’s opinion, ante at 667 n.ll, alienage is not among the enumerated protected classes in the 1964 Civil Rights Act or its predecessors. As Federal legislation, the Civil Rights Act would necessarily have distinguished between discrimination based on national origin, which receives strict scrutiny at the Federal level, and alienage, which receives only rational basis review. Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 95 & 100-101 (1976); Graham v. Richardson, 403 U.S. 365, 376-378 (1971). This observation does not alter the fact that alienage and national origin are classifications that have historically been closely intertwined.
In 1924, Congress passed legislation creating national origin quotas that sought to limit immigration by aliens from nonwhite European countries. See Immigration Act of 1924, c. 190, 43 Stat. 153, 155, 159. In 1948, President Harry S Truman proposed passage of legislation that would strengthen civil rights, prevent employment discrimination “based on race, color, religion or national origin,” and “remove the remaining racial or nationality barriers which stand in the way of citizenship for some residents of our country.” Public Papers of the Presidents of the United States 121, 122-125 (Feb. 2, 1948). He also sought repeal of the national origins quotas in the immigration laws. Public Papers of the Presidents of the United States 441, 442-443 (June 25, 1952). For more on the history of the term national origin and the efforts of various Presidents to eliminate national origin discrimination prior to the 1964 Civil Rights Act, see Perea, Ethnicity and Prejudice: Reevaluating “National Origin” Discrimination Under Title VII, 35 Wm. & Mary L. Rev. 805, 810-817 (1994) (Perea).
See also Perea, supra at 820-821, 832 (in congressional debate leading up to Civil Rights Act, “national origin” was understood by legislators to mean “the nation of one’s birth or the nations of birth of one’s ancestors. This understanding of national origin merges one’s national origin, or country of birth, with the national origin characteristics of one’s ancestry”).
Article 106 originated as a legislative petition in the Massachusetts House of Representatives, see 1973 House Doc. No. 5313, and was one of many State ERAs in the 1970s that were aimed primarily at addressing the issue of gender equality. Wharton, supra at 1201-1202. The Legislature passed the proposed amendment overwhelmingly at the 1973 and 1975 constitutional conventions, and what little opposition there was appears to have focused on its gender-related social and legal impact. See 1973 Senate J. 2129-2133; 1975 Senate J. 1470-1477; State House News Service, May 7, 1975.
In 1975, the Legislature established a special commission tasked with studying the “reformulation of state laws” to bring them in compliance with the pending ERA. 1976 Senate Doc. No. 1689, at ii. Because classifications other than gender had already been “accord[ed] extensive protection against discrimination” under the United States Constitution, it was deemed unnecessary to review State statutes pertaining to these classifications because they would already have been brought into line with Fourteenth Amendment mandates. 1976 Senate Doc. No. 1689, at 1-2. See 1977 Senate Doc. No. 1500.
The public debate over the proposed amendment also focused primarily on its potential gender-related effects, see Mass. Equal Rights Amendment, 1976 Ballot Questions (Massachusetts Taxpayers Foundation, Inc.), but the additional goal of enshrining equal protection guarantees for all people within the State Constitution was frequently cited by supporters of art. 106. Proponents noted that a State ERA would provide universal equal protections for all people and would ensure stronger and broader protections than antidiscrimination legislation; they also cited the important symbolic nature of passing a State ERA given that the State Constitution at that time contained no explicit guarantee of equality. See Some Questions and Answers on Equal Rights Amendment, Boston Globe, Oct. 26, 1976, at 13; Mass. Ballot Issues ... 1 Equal Rights Amendment, Boston Globe, Oct. 20, 1976, at 22; ERA Fate Has National Import, Boston Globe, Oct. 24, 1976, at 29; Equal Rights Question Is a Symbol of Changing Times, Boston Globe, Oct. 29, 1976, at 21. Similarly, the guide sent to voters by the Secretary of the Commonwealth in 1976 described a vote in favor of the “Equal Rights” amendment as a “vote to add a specific guarantee of equality under the law to the state Constitution,” while a “no” vote was “a vote to leave the state Constitution as it is.” See Massachusetts Information for Voters 1976 at 3.
Discrimination on the basis of ethnic characteristics was prohibited long before the passage of art. 106. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291-320 (1978) (discussing history of Federal anti-ethnic discrimination law). Ethnicity, like alienage, is often included within the meaning of national origin although the terms are not necessarily coterminous. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (agreeing that “one’s ancestry — the ethnic group from which an individual and his or her ancestors are descended — is not necessarily the same as one’s national origin”). Claims of discrimination based on national origin have been upheld where ethnicity was the appropriate classification. Thus, a claim of national origin discrimination under Title VII was held to state a cause of action by a Gypsy, although Gypsies are not defined as related to a particular country but as “various ethnic groups not originally from this land.” Janko v. Illinois State Toll Highway Auth., 704 F. Supp. 1531, 1531-1532 (N.D. Ill. 1989). See Roach v. Dresser Indus. Valve & Instrument Div., *696494 F. Supp. 215, 216-218 (W.D. La. 1980) (person of Acadian descent protected under “national origin” term despite historical absence of independent nation of Acadia). See also Perea, supra at 852-853 (discussing use of “national origin” as basis for protection of ethnic traits and noting, “ ‘National origin’ is usually the wrong characteristic to protect. Most discrimination occurs because of ethnic traits, many of which are perceptible, and not because of mere national origin, which is usually not immediately perceptible”). Cf. Hernandez v. Texas, 347 U.S. 475, 480 n.12 (1954) (Mexican-Americans identified as distinct class based on surnames); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987), quoting Saint Francis College v. Al-Khazraji, supra at 613 (Jews no longer considered separate race; but protected under § 1982, which was intended to protect against “discrimination solely [based on] their ancestry or ethnic characteristics”).