Church/State and Schools in Massachusetts

The U.S. Supreme Court denied cert this week in Wirzburger v. Galvin, 412 F.3d 271 (C.A.1-Mass. 2005), a case that had involved First Amendment challenge by parents of children enrolled in private, religiously-affiliated schools in Massachusetts who sought to change provisions of the state constitution regarding to public support for private education.

Article 18 of the Massachusetts Constitution includes a provision that prohibits public financial support for private primary or secondary schools (the "Anti-Aid Amendment"). Article 48 of the state constitution provides that the Constitution may be amended by popular initiative.  However, Article 48 specifically includes a provision (the "Anti-Aid Exclusion") specifying that "[n]either the eighteenth [Anti-Aid] amendment of the constitution . . . nor this provision for its protection, shall be the subject of an initiative amendment;" as well as another provision (the "Religious Exclusion") mandating that "[n]o measure that relates to religion, religious practices or religious institutions .. .shall be proposed by an initiative petition."

Following the required procedure, plaintiffs submitted an initiative petition, for certification, to the Massachusetts Attorney General to modify the Anti-Aid Amendment by adding a sentence stating that nothing in the Anti-Aid Amendment shall prevent the Commonwealth from providing loans, grants, or tax benefits to students attending private schools, regardless of the schools' religious affiliation.  The Attorney General declined to certify the measure in light of the state constitution's provisions summarized above.

The First Circuit considered plaintiff's challenge under Free Speech, Free Exercise, and Equal Protection analysis.  The court discussed the nature of the initiative process as speech, but recognized that this process also involved a lawmaking act involving both speech and conduct.  Under United States v. O'Brien, 391 U.S. 367 (1968), the key inquiries are whether (1) the regulation "is within the constitutional power of the Government;" (2) "it furthers an important or substantial governmental interest;" (3) "the governmental interest is unrelated to the suppression of free expression;" and (4) "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377. The court concluded that Massachusetts had a substantial interest in maintaining the proper balance between promoting free exercise and preventing state establishment of religion as well as in restricting the means by which these fundamental rights can be changed. It also found that the impact on First Amendment rights was no more than essential to achieve the state's goals.

The court likewise found no discrimination based on religious belief or status, and concluded that no suspect classificiation was therefore involved. In addition, no impermissible animus was shown.