Sep 15, 2011

Massachusetts schoolchildren and their parents sought to obtain government funding for a parochial education by amending a provision of the Massachusetts Constitution — known as the "Anti-Aid Amendment" — that bars any public financial support for private primary or secondary schools. The Plaintiffs sought to amend this provision through a voters’ initiative, but the state Constitution explicitly prohibits initiatives to amend the Anti-Aid Amendment, as well as initiatives that concern "religion, religious practices or religious institutions." The plaintiffs challenged the two provisions prohibiting initiatives as violative of the Free Speech, Free Exercise, Equal Protection, Right to Petition, and Establishment Clause provisions of the federal Constitution. In 2001, Americans United joined an amicus brief opposing the plaintiffs’ motion for a preliminary injunction, and in December 2002, we joined an amicus brief in opposition to the plaintiffs’ motion for summary judgment. We argued that substantive limitations on the initiative process are primarily limitations on lawmaking and only secondarily limitations on speech, and that the prohibitions do not reflect viewpoint discrimination. The district court granted summary judgment to the defendants on March 31, 2004, finding that the prohibition on initiatives is viewpoint-neutral because it precludes proposals friendly or hostile to religion. The plaintiffs appealed the ruling and we joined an amicus curiae brief on the defendants’ behalf on August 20, 2004. In a ruling issued on June 24, 2005, the First Circuit affirmed the district court’s decision, holding that the prohibitions restrict some speech, but do so only as an "unintended side-effect" — so intermediate, rather than strict or rational-basis, scrutiny is appropriate. The prohibitions withstand such scrutiny because they are narrowly drawn to further a significant state interest in maintaining the proper balance between promoting free exercise and preventing state establishment of religion. The prohibitions do not violate the Free Exercise or Equal Protection Clauses because they are nondiscriminatory, applying to any group or individual regardless of their religious affiliation. The case is now concluded.