Wirzburger v. Galvin

(formerly Boyette v. Galvin)

On March 3, 1998, The Becket Fund filed a lawsuit on behalf of a group of Massachusetts citizens challenging provisions of the Massachusetts Constitution which forbid citizens from petitioning the legislature for private school funding.

Several provisions in the Massachusetts constitution stood in the way: the Anti-Aid Amendment, which barred any portion of the common school fund from going to "sectarian" schools, adopted at the height of anti-immigrant and anti-Catholic fervor during the 1850s; and a 1917 amendment that expanded the earlier amendment to include higher education and non-profit groups, and also created initiative and referendum procedures for the state while explicitly forbidding the use of them to amend the Anti-Aid Amendment.

In September, 1998, a federal judge signed an order permitting a petition to be circulated for signatures while the court challenge was pending. Nearly 59,000 signatures were gathered, but several thousand were disqualified, leaving the effort just short of the 57,100 needed.

Another petition drive was launched in 1999, and this time more than 78,000 were certified, easily surpassing the minimum requirement. But in order for the petition to come before the legislature, and henceforth the voters, the Attorney General must certify that it is proper for the legislators to take it up. In a letter of September 1, 1999, he declared that one of the very constitutional provisions being challenged prohibits him from doing so.

On April 6, 2000, The Becket Fund asked the federal district court in Boston to order the Attorney General to certify the petition so that it could be taken up by legislators before the May 10, 2000 deadline. A hearing was held on May 3, 2000, and on May 5, Judge George O'Toole denied our motion for a preliminary injunction. (See the memorandum in support of a motion for a preliminary injunction.)

On February 12, 2001, Judge O'Toole granted a motion by the defendants to dismiss that portion of the suit that challenged the Anti-Aid Amendment, on grounds of standing. But he refused to dismiss the suit's challenge to the provision of the Massachusetts constitution that bars any referenda on whether to repeal or amend the Anti-Aid Amendment.

On November 7, at a status conference, The Becket Fund filed a motion for summary judgment (PDF format, 258K), arguing that two provisions of Article 48 of the Massachusetts Constitution that exclude certain matters from the initiative process (the Religious Exclusion and the Anti-Aid Exclusion) "on their face and as applied, silence Plaintiff's core political speech on the basis of viewpoint, exclude Plaintiffs from access to the Massachusetts initiative process on the basis of religion, and shut Plaintiffs out of equal participation in the political process on the basis of religion in violation of their rights under the First and Fourteenth Amendments to the United States Constitution." Judge O'Toole set oral arguments on the motion (a "substantial amount of time") because of the seriousness of the issues, for February 25, 2003, but a death in the family of opposing counsel forced a postponement.

On December 19, 2002, Massachusetts filed a cross-motion for summary judgment. On January 23, 2003, The Becket Fund filed a reply brief and memorandum opposing the cross-motion for summary judgment (PDF format, 206K). The brief argues that "The Court should read both exclusions [the Religious Exclusion and the Anti-Aid Exclusion] as part of a general scheme to unconstitutionally manipulate the political process."

Oral arguments were held on the cross-motions for summary judgment on April 8, 2003. Becket Fund attorney Derek Gaubatz represented the plaintiffs.

The court granted the defendants summary judgment. Final judgment was entered on April 1, 2004.

On July 6, 2004, The Becket Fund appealed the decision, filing a brief (PDF format, 484K) with the U.S. Court of Appeals for the First Circuit.

The brief argues, "The Free Exercise Clause requires neutral treatment of religion and subjects to strict scrutiny laws like the Exclusions at issue here, which deny access to an otherwise generally available political process on the basis of religion." The Plaintiffs are excluded from using the initiative process, which all other citizens are entitled to use, solely because of their religious beliefs. The Exclusions impose severe burdens on Free Speech: "(1) both prohibit political expression based on content and (2) both directly inhibit initiative proponents from making the ideas for political change expressed in their initiative a matter of statewide discussion on the ballot."

In addition, "the Religious and Anti-Aid Exclusions both fail strict scrutiny review because Defendants have not advanced any compelling interests to justify the Exclusions' violations of Plaintiffs’ rights to Free Speech, Free Exercise of religion, and Equal Protection."

This law review article discusses the case: Richard Fossey & Robert LeBlanc, Vouchers for Sectarian Schools After Zelman: Will the First Circuit Expose Anti-Catholic Bigotry in the Massachusetts Constitution? 193 Education Law Reporter 343-63 (2005). (Reprinted by permission from West Publishing Company.)

On October 5, 2004, Senior Legal Counsel Derek Gaubatz appeared before a panel of the U.S. Court of Appeals for the First Circuit consisting of Judges Torruella, Lipez, and Campbell. Gaubatz argued that the lower court's judgment in favor of the Commonwealth should be reversed, so that a petition drive to repeal the notorious Anti-Aid Amendment could move forward. The panel took the case under advisement.

On June 24, 2005, the First Circuit issued its decision affirming the district court's grant of summary judgment to the state.  The Court found that Article 48's prohibition on legislative petitions that relate to religion triggered intermediate scrutiny under the Free Speech Clause, but then found that scrutiny satisfied.  In addressing the Free Exercise and Equal Protection claims, the Court acknowledged the bigotry that animated the original passage of Article 48 in 1855, but still rejected the claims based on the assertion that there was no evidence of similar motive behind the 1917-18 amendments to Article 48.

In response, on July 8, 2005, The Becket Fund filed a petition for panel rehearing that pointed out several places in the record and briefs where plaintiffs had presented evidence of bigotry behind those later amendments.  On July 21, the petition for rehearing was denied.

On October 24, 2005, the Becket Fund filed a petition with the U.S. Supreme Court to review the case.  On January 23, 2006, without any written explanation, the petition was denied.  This case is closed.

The Blaine Amendments are a vestige of 19th Century nativism that continue to this day to prohibit vouchers and other religion-neutral educational funding programs.  The Becket Fund remains committed to getting the nation's highest court to address these old and dated laws that find their roots in bigotry. 

Articles & News Items

• " Massachusetts Petition Drive Puts School Choice Before Legislature," November 30, 1999
• "Parents File Federal Civil Rights Challenge to Massachusetts Barriers to School Choice," March 3, 1998
• "Federal Judge Allows Massachusetts School Choice Initiative to Move Forward," September 3, 1999
• "Court is Asked to Order Massachusetts Attorney General to Allow Vote on School Choice Petition," April 6, 2000
• "Judge Declines to Issue Injunction in School Fund Case," May 8, 2000
• "Judge Allows Suit Against Massachusetts Initiative Provision to Proceed," February 16, 2001
• "Petition Seeks Supreme Court Review of MA Blaine Amendment," October 20, 2005