311 F.Supp.2d 237 (2004) | Cited 1 time | D. Massachusetts | March 31, 2004


The plaintiffs have a proposal to amend the Massachusettsconstitution, and they would like to make use of the initiative procedureavailable under that constitution to put the proposal to a vote by theState's electorate. Under the Massachusetts initiative procedure, beforea question can be put to the electorate, the State's attorney generalmust certify that it is a proper question to be placed on the ballot.This involves determining whether certain procedural steps have beenfulfilled. It also involves comparing the subject matter of theinitiative proposal to a list of matters which the constitution byexpress provision excludes from eligibility for consideration through theinitiative process.

The plaintiffs are the parents of children who attend private schoolssponsored or supported by religious institutions. They favor theenactment of programs to provide direct or indirect public financialsupport for their educational expenses, such as by means of vouchers orscholarships. A particular provision of the Massachusetts constitutionstands in the way of the adoption of such programs, however. AmendmentArticle 18 of the Massachusetts constitution prohibits any publicPage 2financial support for private primary or secondary schools (thoughnot private institutions of higher learning). (Amendment Article 18 iscommonly referred to as the "Anti-Aid Amendment," because it forbids"aid" to private schools.) In order to permit legislative approval of ameasure making available any of the programs the plaintiffs seek to haveadopted, the Anti-Aid Amendment itself would have to be amended. That iswhat the plaintiffs seek to do by their initiative petition — amendthe Anti-Aid Amendment so that the programs they advocate can beconsidered on their merits by the legislature, or perhaps, by the peoplevia the initiative process.

Unfortunately for the plaintiffs and others of like mind, however, theMassachusetts constitution prohibits initiative petitions that wouldamend the Anti-Aid Amendment (the " Anti-Aid Exclusion"). Mass. Const.amend. art. 48, pt. 2, § 2. Moreover, the constitution prohibitsinitiative petitions that concern "religion, religious practices orreligious institutions" (the "Religious Exclusion"). Id. Whenthe plaintiffs presented their petition seeking to amend the Anti-AidAmendment, the attorney general ruled that the subject matter of thepetition precluded it from being placed on the ballot as an initiative,citing both the "Anti-Aid Exclusion" and the "Religious Exclusion." Inthis suit, the plaintiffs seek a declaration that enforcement of theAnti-Aid and Religious Exclusions as to their proposed initiativepetition violates the United States Constitution, and they further seekappropriate injunctive relief.

The plaintiffs' first argument is that the subject matter restrictionsimposed by the Anti-Aid and Religious Exclusions with respect to theinitiative petition process are impermissible governmental limitations ontheir freedom of speech. They rely heavily on cases analyzing whatrestrictions the government may impose on speech in various contexts.

In a nutshell, the legitimacy of governmental restrictions on speechdepends to a great extent on the circumstances under which the speechoccurs (or, perhaps more accurately, would occur ifPage 3not for the restriction). The cases discuss a three-level hierarchyof "forums," with an ascending level of restriction permitted as oneproceeds from the most open and unregulated to the least open and moreproperly regulated forums. First, there is the traditional public forumthat is open to virtually unrestricted speech, such as a public park or apublic sidewalk. Except for reasonable regulation of the "time, place ormanner" of the expressive occasion, and some other qualifications notrelevant here (such as "fighting words" or obscenity), the governmentmust generally allow all comers to say what they want in such a forum.Next is the "designated" public forum, a place or means of communicationwhere the government purposely permits public participation. An assemblyhall in a municipal building, for example, may be made generallyavailable to the public for private uses — lectures, performances,and the like. In such cases, the rules are generally the same as for"traditional" public forums. Any limitation that is based on the contentor subject matter of speech in a forum designated as a place for or meansof communication must serve a compelling governmental interest and mustbe tailored to serve that interest without restricting speech orexpression not implicating that interest. Finally, there is the"non-public" forum, a place or facility not open broadly to the publicfor the communication of ideas. The government may set more stringentrules for expression in a non-public forum, such as limiting expressionto the specific purposes of the forum, so long as it does not favor ordisfavor expression based on the public officials' approval ordisapproval of the point of view of the expression. An internalcommunications facility in a government workplace — like teachers'mailboxes in a public school — would be an example.

The plaintiffs assert that their proposed use of the initiativeprocedure to present for a vote by the electorate of the Commonwealth apetition that would amend the Anti-Aid Amendment is "speech" protected bythe First Amendment principles articulated in the "forum" cases. ThePage 4difficulty with this theory, however, is that the presentation of apetition to the electorate is significantly more than simply thecommunication of ideas or viewpoints, though it certainly includes andstimulates such communication. Beyond communication, the initiativeprocess is a functional exercise in lawmaking. By invoking the initiativeprocess, the plaintiffs want to do more than just say something;they want to do something — achieve electoral approval ofan amendment to the Massachusetts constitution. The effect of thelimitations imposed by the initiative exclusions challenged here is topreclude direct popular lawmaking as to certain subject areas. Anyrestriction on the plaintiffs' desired "speech" through the initiativeprocess is a necessary incident, but an incident nonetheless, of thelimited availability of that process as an instrument of lawmaking.

The challenged provisions of the constitution impose no restriction onspeech either in favor or against any initiative petition that ispermitted. Cases analyzing restrictions on "only" speech in variousforums or channels of communication-even those addressing speechspecifically in support of initiative petitions, see Buckley v. Am.Constitutional Law Found., Inc., 525 U.S. 182 (1999); Meyer v.Grant, 486 U.S. 414 (1988) — are not directly pertinent todeciding the propriety of restrictions on speech that is more than justspeech because it is not only meaningful, but functional.

The Massachusetts constitution established a representative,"republican" form of government, with legislative, executive andjudicial branches. See generally, Mass. Const, pt. 2 ("TheFrame of Government"). The power to make laws is granted generally tothe legislative branch, Id., ch. 1, § 1, art. 4, which iscomposed of senators and representatives elected from geographicallydescribed districts. Id.. §§ 2 and 3. As the result of aconstitutional convention held in 1917 and 1918, the constitution wasamended to provide for direct popular lawmaking by way of initiativepetitions (as well as for direct popular review of legislative lawmakingby way of referendums). Id. amend, art. 48.Page 5

However, the initiative process is not made available for directlawmaking by the people without limitation. It may not be used to adoptlaws dealing with a number of specified topics, including those at issuein this case. Some of the matters excluded from consideration by means ofan initiative petition relate to the frame or organization of thegovernment itself. So, for example, matters affecting the judicial branchmay not be the subject of an initiative. Similarly, the legislature'sappropriation power is protected by excluding measures that would makespecific appropriations from the state treasury. Other exclusions preventinitiatives that would weaken or undercut particular individual rightsenumerated in the constitution's declaration of rights. Theconstitutional article establishing the initiative may not itself be thesubject of an initiative petition.

The initiative procedure can thus be seen as an exception to thegeneral rule that lawmaking will be accomplished by the legislature. Yetin creating that exception, Amendment Article 48 also created exceptionsto the exception, and for those matters the "usual," representativeprocedures apply. There is no reason to think that the federalConstitution requires the States to adopt an "all or nothing" initiativeprocedure — that is, that Massachusetts either must permit theinitiative to be used for all lawmaking purposes without restriction ornot permit it at all. To be fair, the plaintiffs do not suggestotherwise. Rather, they argue that the rules against content-orviewpoint-based discrimination in the "only speech" cases ought likewiseto be used to limit the power of the State to close the initiativeprocedure to some purposes, while opening it to others.

As noted above, it is a sufficient reason not to regard those cases ascontrolling that the initiative's functional process of lawmaking issignificantly and substantially different from a place or facility thathas been opened, by tradition or designation, for the dissemination anddiscussion of ideas. Beyond that, the rules are unworkable as apractical matter in the initiative context because of a fundamentalconflict with the proposition that the initiative procedure need not beuniversallyPage 6available. It seems obvious that if some matters are to bepermitted and others not, the description of either category would bedone by reference to content or subject matter, not only as a matter ofthe requirements of language, but also because topical grants orprohibitions of lawmaking powers are usual and traditional. Thus, forexample, like the First Amendment itself, the first section of theAnti-Aid Amendment, not here at issue, provides, "No law shall be passedprohibiting the free exercise of religion." That is a subject matter (orviewpoint) restriction on the lawmaking power. So at least some topicalexclusions must be okay. Are others not? And if one is and another isnot, what standards could be used for judging which is which?

Rules of decision cognate to those in the speech cases would not beuseful. To the extent that those rules would prohibit exclusion based onthe content or subject matter of the proposed initiative petition, theywould be inconsistent with the necessary principle just discussed —defining the scope of the initiative procedure by reference to thesubject matter of proposed petitions. An attempt to refocus the test from"content" discrimination to "viewpoint" discrimination would also beunsuccessful because for purposes of defining what kinds of petitions areexcluded there is not necessarily much difference between a broaddefinition (of subject matter) and a narrow one (of viewpoint). Forinstance, the exclusion that bars consideration of a petition that wouldabolish the right to jury trial could easily be thought of either as anexclusion based on the content or subject matter of the petition (theabolition of the right to jury trial) or as one based on its viewpoint(that the right to jury trial should be abolished).

Another theory that better suits prophylaxis against mischief in theclassification of approved and disapproved topics for petitions is onedrawn from equal protection doctrine, which is an alternate basisproposed by the plaintiffs for the relief they seek. But while thepossibility seems more congenial at first blush, in the end that theorylikewise must be rejected.Page 7

The plaintiffs rely mainly on two cases, Hunter v. Erickson,393 U.S. 385 (1969) and Washington v. Seattle School Dist.,458 U.S. 457 (1982), for support for their proposition that "distortions ofthe political structure that impose a hurdle on one group seekinglegislation in the political process that is not similarly imposed onother groups constitutes a denial of equal protection." Pls.' Mem. inSupp. of Mot. for Summ. J. at 37. The quoted language from theplaintiffs' brief somewhat overstates the holdings of the cases cited. Inboth cases, the Supreme Court struck down measures that made it moredifficult for a racial minority to achieve the enactment of beneficiallegislation than it was for sponsors of other legislation generally.Since the measures impacted a racial minority, the classification wasdeemed "suspect" under conventional equal protection theory and thussubject to "strict scrutiny." The plaintiffs cannot successfully arguethat Anti-Aid and Religious Exclusions, individually or in tandem,operate to "classify" the plaintiffs by reference to their religiousbeliefs or practices (a classification that, if it occurred, would be"suspect"). The plaintiffs are the parents of children attending privateschools operated under the auspices of religious institutions. Accordingto the amended complaint, although all the named plaintiffs have enrolledtheir children in Catholic parochial schools, not all the plaintiffs areCatholics themselves. To the extent they have a group identity, it is notdefined by membership in a particular religious faith, but rather in theshared faith in the educational opportunities offered by Catholic andother religious-sponsored schools. At the risk of stating the obvious,other members of the same religious faiths as the plaintiffs do not sharethe plaintiffs' interest in private schooling for their children andinstead enroll them in public schools.

Another trigger for strict scrutiny under equal protection theory iswhen the challenged governmental action has the effect of impermissibly"burdening" a "fundamental right." But there is no such burdening herebecause the plaintiffs have not identified a fundamental right that hasbeenPage 8harmed by the Anti-Aid and Religious Exclusions. In particular, theexclusions from the initiative process that the plaintiffs complain of donot implicate the plaintiffs' opportunity to vote on any matter that doesappear on the ballot, but rather their opportunity to have a questionplaced on the ballot in the first place. That interest is not the same asthe "right to vote" that is recognized in case law as a "fundamentalright." And as noted earlier, there is no recognized federalconstitutional "fundamental right" to have a matter accepted by a Statefor inclusion in the initiative process of lawmaking.

Nor is the plaintiffs' fundamental right to practice their chosenreligion affected by the exclusions. The exclusions have nothing to dowith the practice of religion, even if that could be broadly understoodas including the enrollment of children in religious-sponsored schools.The exclusions pertain to the initiative ballot, not to school choices.

Another equal protection case cited by the plaintiffs is Romer v.Evans, 517 U.S.620(1996). In that case, the Supreme Court concludedthat a state constitutional provision that prohibited the enactment,either at the state or local level, of measures regulating discriminationagainst persons on the basis of sexual orientation placed an obstacle inthe path of homosexuals that did not exist for persons seeking otherlegislation. Id. at 627. The Court concluded that thedistinction lacked a rational basis, so that even though there wasneither a suspect classification nor a fundamental right at stake, theconstitutional provision at issue violated equal protection principles.

It is difficult to extrapolate a principle from Romer thatmight serve as a basis for granting similar relief to the plaintiffs. Onedifference between the cases that seems significant is that inRomer the obstacle placed in the way of supporters of possibleanti-discrimination legislation was that they were required to amend thestate constitution to eliminate the prohibition against such legislation,rather than simply succeeding at the task of obtaining enactment of suchlegislation,Page 9either at the state or local level. That problem may be like theone the plaintiffs face in attempting to obtain the enactment of somesort of public financial aid to persons like themselves who have childrenenrolled in private religious schools, because in order to have suchlegislative proposals enacted, they must first by constitutionalamendment eliminate the Anti-Aid Amendment's prohibition of such support.But what is at issue now is not the constitutional validity of theAnti-Aid Amendment itself. This Court has previously ruled that theplaintiffs lack standing to make that challenge. Rather, what is atissue at this stage are only the Anti-Aid and Religious Exclusionsto the initiative procedure. Those provisions do not change the levelat which desired legislation may be enacted; they simply foreclose useof the initiative procedure to amend the Anti-Aid Amendment. Byoperation of the exclusions, the plaintiffs must avail themselves ofthe other process provided for amending the constitution, through thelegislature. With or without resort to the initiative, the plaintiffsstill must achieve amendment of the constitution.

Nevertheless, assuming in the plaintiffs' favor that Romerwould require Massachusetts to justify the exclusions under the "rationalbasis" test, they easily pass that test. As the record of the debates ofthe Massachusetts Constitutional Convention of 1917-1918 indicate, theadoption and contours of the initiative and referendum provisions of theconstitution were resolved after extended discussion and compromise. Theyreflect the majority consensus that the initiative and referendum shouldnot be available without limitation for lawmaking on any and all topics,and specifically that the initiative should not be available for allproposals to amend the constitution, including the newly amended Anti-AidAmendment. These exclusions reflect an evident judgment that somequestions are better resolved in a process that permits extended debateand compromise than in a process that essentially puts a fixedproposition to the general electorate for a single up or down vote. Thewisdom and prudence of the exclusions are a matter on which opinion couldreasonably be divided,Page 10but it cannot be said that insisting that certain subjects arebetter addressed in the traditional way of representative governmentbefore they are put on the state-wide ballot is an irrational idea.

The plaintiffs make the additional argument that the ReligiousExclusion violates the Free Exercise Clause of the First Amendment byplacing a hurdle in front of those who want to propose initiativepetitions that deal with "religion, religious practices, or religiousinstitutions" that is not placed in front of persons seeking to proposeother initiative matters. The argument lacks merit, substantially for thereasons put forward by the defendants. As noted above, the exclusionsbear on the plaintiffs' ability to invoke the initiative process, not ontheir exercise of religion. Recently, the Supreme Court held that therefusal of the State to subsidize religious studies does not violate theFree Exercise Clause. See Locke v. Davey. — U.S. —. 124 So.Ct. 1307(2004). It surely follows that it is not a violation of thatClause for the State to limit consideration of the question whether tosubsidize or not to the established representative process, rather thanthe initiative process.

In any event, the Religious Exclusion does not burden the plaintiffs(or religious people generally) differently from other citizens. Itequally precludes both proposals that would be friendly to religion orreligious institutions, such as proposals the plaintiffs might make, andproposals that would be hosfile to religion. Put another way, theexclusion keeps from the initiative process both proposals tending toinhibit the free exercise as well as proposals tending to forestall anyestablishment of religion, in a way that is just as balanced andneutrally phrased as is the First Amendment itself.

The plaintiffs' spirited and thoughtful attack on the initiativeexclusions is in the end unavailing. The plaintiffs' motion for summaryjudgment in their favor is DENIED, and the defendants' cross-motion forsummary judgment is GRANTED.Page 11

A declaratory judgment shall enter that the Anti-Aid and ReligiousExclusions contained in Amendment Article 48 to the Massachusettsconstitution are not invalid as violative of the First and FourteenthAmendments to the United States Constitution. Judgment shall enter infavor of the defendants under all counts of the amended complaint.

It is SO ORDERED.Page 1

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