Court is Asked to Order Massachusetts Attorney General to Allow Vote on School Choice Petition

Apr 6, 2000

The Becket Fund for Religious Liberty today asked a federal court to order Massachusetts Attorney General Thomas F. Reilly to certify a school choice initiative petition so that a vote can be taken on the measure by the state legislature before the constitutional deadline of May 10, 2000.

Last fall, under terms of a preliminary injunction issued by the same court, volunteers throughout the state collected more than 80,000 signatures on a petition to amend the state constitution to allow providing loans, grants or tax benefits to students attending private educational institutions in Massachusetts. On December 15, 1999, Secretary of the Commonwealth William F. Galvin certified the validity of 78,342 of the signatures, well over the 57,100 signatures needed to put the initiative before the legislature.

Today's petition to the court was made necessary by the language of Article 48 of the constitution, which was enacted in 1917 during a wave of anti-Catholic sentiment in the state. It creates initiative and referendum procedures for Massachusetts, but forbids any initiative that would modify another anti-Catholic provision (the "Anti-Aid Amendment") added to the constitution during the height of the power of the Know-Nothing Party in 1854. In a lawsuit filed in March, 1998, three families represented by The Becket Fund challenged the validity of both provisions of the Massachusetts constitution as violating the First and Fourteenth Amendments to the U.S. Constitution. The case, Boyette v. Galvin, is still pending before the court.

Attorney General Reilly has taken the position that the language of Article 48 prevents him from certifying the petition so that it can properly be considered by the legislature. Thus, a court order directing the Attorney General to certify the petition is needed if the legislators are to take up the measure before the May 10 deadline. If the legislature acts favorably on the petition, the measure permitting aid to students attending private schools would go before the voters in a referendum in November, 2002.

Becket Fund President and General Counsel Kevin J. Hasson said of today's action, "this is a crucial step on the road toward finally erasing one of the ugliest examples of religious bigotry in American history."

Relevant Cases

• Wirzburger v. Galvin