## Facts

- Parents of children in private, religiously affiliated schools sought to use Massachusetts’ initiative process to amend the state constitution to permit public financial support (loans, grants, or tax benefits) for students attending private schools regardless of religious affiliation.
- The Massachusetts Constitution’s Anti–Aid Amendment prohibits public financial support for private primary or secondary schools.
- Article 48 establishes the initiative procedure and bars initiatives on specified “Excluded Matters,” including:
  - a prohibition on using initiative amendments to amend the Anti–Aid Amendment (the Anti–Aid Exclusion); and
  - a prohibition on initiative measures relating to religion, religious practices, or religious institutions (the Religious Exclusion).
- The Attorney General refused to certify the initiative petition because it fell within both exclusions.
- Plaintiffs sued in federal court alleging the exclusions violated the First Amendment (free speech and free exercise) and the Equal Protection Clause.
- The district court granted summary judgment for state officials; plaintiffs appealed.

## Issues

1. Whether excluding religion-related measures and amendments to the Anti–Aid Amendment from the initiative process violates the First Amendment by imposing unconstitutional content-based restrictions on political speech.
2. Whether the exclusions violate the Free Exercise Clause by burdening religiously motivated political action.
3. Whether the exclusions deny equal protection by discriminating against religion-related initiatives and their proponents.

## Decision

- The First Circuit affirmed summary judgment for the defendants.
- The court held the Anti–Aid Exclusion and Religious Exclusion are constitutional.
- The court rejected plaintiffs’ claims under the Free Speech Clause, Free Exercise Clause, and Equal Protection Clause.

## Legal Principles

- A state initiative process is a lawmaking mechanism the state may structure; limits on what subjects may be addressed by initiative are primarily regulations of governmental process, not direct regulation of speech.
- The U.S. Constitution does not guarantee a right to a particular lawmaking procedure, including a right to place an initiative on the ballot.
- Excluding certain subjects from initiative does not necessarily suppress speech where proponents remain free to advocate, petition the legislature, and participate in public debate through other channels.
- A facially neutral, generally applicable rule that excludes measures “relat[ing] to religion” from a specific lawmaking procedure does not violate the Free Exercise Clause merely because it incidentally burdens religiously motivated conduct.
- Subject-matter exclusions in a state initiative scheme do not violate equal protection absent targeting of particular religious denominations or adherents; they may be sustained where supported by legitimate governmental interests in structuring constitutional change.

## Conclusion

The First Circuit upheld Massachusetts’ constitutional limits on the initiative process, concluding that excluding initiatives concerning religion-related matters and amendments to the Anti–Aid Amendment regulates the state’s chosen lawmaking structure and does not, on this record, violate free speech, free exercise, or equal protection.


Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005)