Judge Allows Suit Against Massachusetts Initiative Provision to ProceedFeb 16, 2001
U.S. District Judge George O'Toole ruled this week that a lawsuit challenging
a provision of the Massachusetts constitution barring a voter referendum
on aid to non-public schools, including religious schools, can proceed.
Attorneys for the Becket Fund for Religious Liberty and the Boston law
firm of Burns & Levinson filed the suit, Boyette v. Galvin, in
March, 1998 on behalf of four school-aged children and their parents,
charging that two provisions of the state constitution—one barring aid
to non-public schools and the other barring any referenda to change the
first provision—were grounded in 19th century anti-Catholic bigotry. Attorneys
for Secretary of the Commonwealth William F. Galvin had asked the court
to dismiss both challenges. Judge O'Toole dismissed the challenge to the
"Anti-Aid Amendment," which prohibits aid to any private school, although
he acknowledged that the provision may have a "nefarious history." But
he refused to dismiss the challenge to the initiative petition provisions,
which explicitly protect the Anti-Aid Amendment from repeal by barring
any referenda dealing with it or any other matters involving "religion,
religious practices or religious institutions."
Activists favoring repeal of the Anti-Aid Amendment have conducted two
petition drives aimed at getting the issue before the voters in a state-wide
referendum, the most recent of which produced more than 78,000 signatures
certified by the Secretary of the Commonwealth in December, 1999. But
the Attorney General refused to certify that the petition pertained to
a "permitted subject" for a statewide referendum. "In other words," Judge
O'Toole wrote in his decision, "the barrier the plaintiffs seek to challenge
was effective. Because the barrier is effective, the plaintiffs are able
to complain of an injury in fact sufficient to grant them standing."
The challenge to the voter referendum provision will now proceed. Becket
Fund Director of Litigation Eric Treene said that "the decision is very
good news for the many people who have worked tirelessly circulating petitions
and trying to get this issue before the voters. As a result of this decision,
the people of Massachusetts may finally get to decide whether the Anti-Aid
Amendment, a relic of 19th century anti-Catholicism, should hobble education
reform in the 21st century."
Judge O'Toole's decision was signed on February 12. Relevant Cases
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