Wirzburger v. Galvin

United States Court of Appeals
For the First Circuit

No. 04-1625

MICHAEL WIRZBURGER, ET AL.,

Plaintiffs, Appellants,

v.

WILLIAM F. GALVIN,
SECRETARY OF STATE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Derek L. Gaubatz, with whom Anthony R. Picarello, Jr.,
Roman P. Storzer, Burns & Levinson LLP, Michael J. Meagher and
Robert J. O'Regan were on brief, for appellants.
William W. Porter, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, and Peter Sacks, Assistant
Attorney General, were on brief, for appellees.

June 24, 2005
 TORRUELLA, Circuit Judge. Plaintiffs-appellants would

like to amend the Massachusetts Constitution to allow public

financial support to be directed toward private, religiously

affiliated schools. Plaintiffs attempted to propose their

amendment through the Massachusetts initiative procedure, but two

distinct provisions of the Massachusetts Constitution prevented

initiatives on this subject. They now challenge these subject-

matter exclusions from the initiative process on federal Free

Speech, Free Exercise, and Equal Protection grounds. In the end,

plaintiffs' arguments fail, and although our analysis diverges at

points, we affirm the district court's grant of summary judgment.1

I. Facts

Plaintiffs are parents of children enrolled in

religiously affiliated schools who sought to amend Amendment

Article 18 of the Massachusetts Constitution (the "Anti-Aid

Amendment"), which prohibits public financial support for private

primary or secondary schools.2 Mass. Const. amend. art. 18.

Article 48 of the Massachusetts Constitution provides that, in

1
In sum, because we recognize the communicative aspect of the
initiative process, we apply intermediate scrutiny to
Massachusetts' initiative exclusions, whereas the district court
applied rational basis review. We find that the exclusions
nevertheless survive this heightened review. Our Free Exercise and
Equal Protection Clause analyses elaborate on the district court's
similar grounds for decision.
2
The district court found that Plaintiffs lacked standing to
challenge the constitutionality of the Anti-Aid Amendment directly,
but that issue has not been raised on appeal.

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addition to the amendment procedure available to the state

legislature, the Constitution may also be amended by popular

initiative. Mass. Const. amend. art. 48, pt. 1. 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, however, denied certification of the proposed

initiative, because Article 48 prohibits amendment of the Anti-Aid

Amendment by initiative (the "Anti-Aid Exclusion") and because the

petition explicitly relates to "religious institutions," another

matter expressly excluded from the initiative process by Article 48

(the "Religious Exclusion").

Section Two of Article 48 limits Massachusetts'

initiative process by listing the "Excluded Matters," which are not

subject to popular action by initiative, including, inter alia,

appointment or compensation of judges; the powers, creation or

abolition of the courts; and specific appropriation of state money.

Mass. Const. amend. art. 48, pt. 2, § 2. The pertinent provision

of Article 48, referred to as the Anti-Aid Exclusion, states that

"[n]either the eighteenth [Anti-Aid] amendment of the constitution

. . . nor this provision for its protection, shall be the subject

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of an initiative amendment," while the Religious Exclusion mandates

that "[n]o measure that relates to religion, religious practices or

religious institutions . . . shall be proposed by an initiative

petition." Id. Plaintiffs challenge the validity of both of these

exclusions under the U.S. Constitution.

II. Analysis

A. Free Speech Claim

The first issue before us is whether the Massachusetts

Constitution's limitations on the initiative process violate the

First Amendment free speech rights of prospective initiative

proponents. Appellants argue that the exclusions to the state

initiative process, which prevent them from pursuing amendments

regarding religion or state aid to private institutions, should be

considered content-based restrictions on core political speech

subject to strict scrutiny.

The difficulty with the appellants' argument is that a

state initiative procedure, although it may involve speech, is also

a procedure for generating law, and is thus a process that the

state has an interest in regulating, apart from any regulation of

the speech involved in the initiative process. In other words, the

challenged exclusions constitute regulations "aimed at non-

communicative impact, but nonetheless having adverse effects on

communicative opportunity." Laurence H. Tribe, American

Constitutional Law § 12-2 at 790 (2d ed. 1988). See, e.g., United

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States v. O'Brien, 391 U.S. 367, 382 (1968) (rejecting draft card

burner's claim that a statute prohibiting the destruction of draft

cards violated his First Amendment rights, reasoning that the law

punished him for the "noncommunicative impact of his conduct,"

although the court recognized the symbolic value of burning a draft

card). Unlike regulations that are "aimed at communicative

impact," regulations that aim at preventing some harm independent

of speech -- in this case, the use of the initiative process for

the passage of certain types of laws believed to be unsuited to

that process -- are not presumed unconstitutional, and are not

subjected to strict scrutiny. Tribe, American Constitutional Law

§ 12-2, at 790. See, e.g., City of Erie v. Pap's A.M., 529 U.S.

277, 291 (2000) (upholding a ban on nude dancing, because "the

ordinance does not attempt to regulate the primary effects of the

expression, i.e., the effect on the audience of watching nude

erotic dancing, but rather the secondary effects, such as the

impacts on public health, safety, and welfare," which are unrelated

to expression). Regulations of this type are, at most, subject to

intermediate scrutiny, under which they will be upheld if the

"harmful consequences of this particular form of expressive

behavior, quite apart from any ideas it might convey, outweigh the

good." Tribe, American Constitutional Law § 12-2, 791. See, e.g.,

Grayned v. Rockford, 408 U.S. 104, 115-16 (1972) (upholding

ordinance barring noisy demonstrations near schools, because the

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government has sufficiently "weighty reasons" to restrict this type

of expressive activity). Applying this balancing, we uphold

Massachusetts' exclusions to its initiative process for the reasons

explained below.

Before arriving at this explanation, we will first

examine the arguments of the parties -- a task that is particularly

difficult in this case, because the parties have planted themselves

firmly at opposite poles, with plaintiffs arguing for strict

scrutiny and Massachusetts arguing that only minimal rationality

review is appropriate. In the end, we find that the law requires

our analysis to proceed by a middle path in this apparent battle of

absolutes. We hold that Massachusetts' exclusions to its

initiative process are narrowly drawn to further a significant

state interest, and thus survive intermediate scrutiny.

1. The Communicative Value of the Initiative Process

The first step in our free speech analysis must be to

determine whether citizens' use of the initiative process

constitutes expressive conduct, permitting appellants to invoke the

First Amendment to challenge the Massachusetts initiative

exclusions. See, e.g., Texas v. Johnson, 491 U.S. 397, 403 (1989)

(citing Spence v. Washington, 418 U.S. 405, 409-11 (1974)). We do

not find that there is any serious debate as to this point. A

state initiative process provides a uniquely provocative and

effective method of spurring public debate on an issue of

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importance to the proponents of the proposed initiative. The

Supreme Court has made clear that the process involved in proposing

legislation by means of initiative involves core political speech.

See Meyer v. Grant, 486 U.S. 414 (1988) (overturning state's

prohibition on using paid petition circulators); Buckley v. Am.

Constitutional Law Found., Inc., 525 U.S. 182 (1999) (overturning

various registration requirements for petition circulators). In

Meyer, the Supreme Court recognized that "the solicitation of

signatures for a petition involves protected speech." 486 U.S. at

422, n.5. Furthermore, the mere fact that plaintiffs "remain free

to employ other means to disseminate their ideas does not take

their [preferred means of] speech through [the initiative process]

outside the bounds of First Amendment protection." Id. at 424.

Clearly, plaintiffs have been prevented from engaging in the sort

of activity that implicates the First Amendment. This conclusion,

however, in no way ends our analysis; it only opens the door for us

to apply constitutional freedom of speech principles to the

limitations Massachusetts places on its initiative process.

We have recognized that "a fine line separates

permissible regulation of state election processes from

impermissible abridgement of First Amendment rights," Pérez-Guzmán

v. Gracia, 346 F.3d 229, 239 (1st Cir. 2003), and the same is true

of regulation of state initiative procedures. In Pérez-Guzmán, 346

F.3d at 239-47, we invalidated Puerto Rico's requirement that

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petition signatures needed for registering a new political party to

appear on the general election ballot be notarized, holding that it

violated the First Amendment of the federal Constitution. In so

doing, we stated that "we afford exacting scrutiny to severe

restrictions on ballot access." Id. at 239. We began our analysis

"with an assessment of the severity of the restriction," id., and

having found it to be severe, we applied strict scrutiny, id. at

243-44.

Plaintiffs argue that we should apply a similar two-step

analysis here. However, plaintiffs' suggested analysis makes an

end-run around the most difficult part of their case. The district

court in this case found that speech was only incidentally affected

by the Massachusetts subject matter exclusions. Boyette v. Galvin,

311 F. Supp. 2d 237, 240 (D. Mass. 2004). Although the district

court recognized that speech was involved, it concluded that the

primary goal of the exclusion was to prevent certain types of laws

from being passed by means of the popular initiative process, and

not to limit what people could say or how they could say it. Id.

at 240-41. By contrast, the common denominator in Pérez-Guzmán and

other cases cited by plaintiffs is a direct restriction on the

communicative aspect of the political process. In Pérez-Guzmán,

like in Meyer, the state regulated how people could promulgate

their political views, in their respective attempts to put a new

party on the ballot, Pérez-Guzmán, 346 F.3d at 230-31, and to

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circulate petitions for a proposed initiative, Meyer, 486 U.S. at

414. Strict scrutiny applied in these cases precisely because they

involved direct regulation of the petition process itself.

We believe that the present case calls for a lower level

of scrutiny. We know of no general principle that, in addition to

constitutional amendment or lawmaking via a process instituted by

the state legislature, a state must provide an opportunity for its

residents to propose constitutional amendments or laws on all

subjects by means of an initiative process. While we accept that

use of the initiative process can facilitate dissemination of

initiative proponents' views, the next step in a free speech

analysis is to determine whether or not the regulation in question

aims at regulating speech, or whether it has some other primary

end, such that any effect on speech is purely incidental. As we

alluded to at the outset of this analysis, the First Amendment

generally provides greater protection against laws that are "aimed

at communicative impact" of the conduct they regulate than from

laws "aimed at non-communicative impact, but nonetheless having

adverse effects on communicative opportunity." Tribe, American

Constitutional Law § 12-2, at 790. The primary goal of state

initiative procedures is to create an avenue of direct democracy

whereby citizens can participate in the generation of legislation

-- that is, the act of creating law. Laws such as those considered

in Meyer and its progeny were aimed at directly regulating the

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means that initiative proponents could use to reach their audience

of potential petition signers. In contrast, we find that subject

matter exclusions like those regulating the Massachusetts

initiative process aim at preventing the act of generating laws and

constitutional amendments about certain subjects by initiative.

While they eliminate a valuable avenue of expression about those

subjects, the speech restriction is no more than an unintended

side-effect of the exclusions. It is because of this sometimes

overlooked, but nevertheless fundamental principle in

constitutional free speech doctrine that we must reject appellants'

proposed analysis. We turn now to Massachusetts' proposed

alternative analysis.

2. Massachusetts' Need to Regulate the Lawmaking Act

The communicative power of an initiative stems precisely

from the fact that it is not just speech; it is a process that can

lead to the creation of new laws or constitutional amendments.

Massachusetts urges us to hold that its restrictions on the

amendment process do not regulate speech qua speech, and thus do

not trigger strict scrutiny under the First Amendment.

Government actions that are aimed at some goal other than

restricting the conveyance of ideas are generally permissible, even

if they incidentally inhibit free speech. See, e.g., Arcara v.

Cloud Books, Inc., 478 U.S. 697 (1986) (upholding the closure of an

adult bookstore because prostitution was taking place on the

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premises). Arcara is a prototypical example of this type of case,

because the law in question only regulated a specific type of

conduct -- prostitution -- which did not implicate speech.

However, even a law seemingly entirely removed from speech can have

effects on speech. In Arcara, for example, the prohibition on

prostitution resulted in the closure of a book store. Enforcement

of a prohibition with such incidental effects does not, however,

implicate the First Amendment, and this type of law need only

survive rationality review.

Plaintiffs do not cite to any precedent for the

proposition that, under the Free Speech Clause of the First

Amendment, a state may not restrict the subjects that can be

addressed through its initiative process. The D.C. Circuit

addressed a similar free speech challenge to a restriction on an

initiative process in the case of Marijuana Policy Project v.

United States, 304 F.3d 82 (D.C. Cir. 2002). In that case, the

D.C. Circuit held that a statute precluding the use of the D.C.

ballot initiative process to lower drug penalties did not

unconstitutionally restrict free speech rights of medical marijuana

advocates, but only shifted the forum of debate from the District

of Columbia to Congress. Id. at 85-86. The court explained that

"although the First Amendment protects public debate about

legislation, it confers no right to legislate on a particular

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subject." Id. at 85. Massachusetts argues that we should adopt

this reasoning to apply rational basis review in the instant case.

3. Regulating Conduct with Speech and Nonspeech Elements

We cannot agree with the D.C. Circuit's finding that

subject-matter exclusions from the initiative process "restrict[]

no speech," id. at 85, nor with its conclusion that this type of

selective carve-out "implicates no First Amendment concerns," id.

at 83. For the same reasons, we also reject Massachusetts'

argument that we should apply only rational basis review to the

Anti-Aid and Religious Exclusions. This case is not like Arcara,

where the Supreme Court criticized the New York Court of Appeals

for having applied the analysis established in United States v.

O'Brien, 391 U.S. 367 (1968), because the Court did not consider

the regulated conduct -- prostitution -- expressive. See Arcara,

478 U.S. at 705 (concluding that "unlike the symbolic draft card

burning in O'Brien, the sexual activity carried on in this case

manifests absolutely no element of protected expression"). Rather,

we would continue along the analysis laid out by the Supreme Court

in Texas v. Johnson, 491 U.S. at 403. Having determined that

Meyer, 486 U.S. at 422, indicates that a state initiative process

manifests elements of protected expression, under Johnson, "we next

decide whether the State's regulation is related to the suppression

of free expression." 491 U.S. at 403. Here, as we have already

explained, the Massachusetts exclusions in question regulate which

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types of laws or amendments can be passed by initiative, without

any reference to who may speak or what message they may convey.

Thus, because "the State's regulation is not related to expression,

. . . the less stringent standard [the Supreme Court] announced in

United States v. O'Brien for regulations of noncommunicative

conduct controls." Id. (citing O'Brien, 391 U.S. at 377 (finding

that, although burning a draft card can be expressive conduct, the

federal government's interest in preventing the destruction of

draft cards is sufficient to uphold defendant's conviction)).

The standard enunciated in O'Brien governs "when 'speech'

and 'nonspeech' elements are combined in the same course of

conduct." O'Brien, 391 U.S. at 376. See also Clark v. Community

for Creative Non-Violence, 468 U.S. 288 (1984) (applying O'Brien

scrutiny to the application of a ban on camping on the Mall in

Washington, D.C., to demonstrators who sought to sleep overnight

there to protest the plight of homeless people). While we agree

with the D.C. Circuit that this type of regulation of a state

initiative process is not aimed at regulating speech, we cannot see

how, given the Supreme Court's analysis in Meyer, subject-matter

exclusions from a state initiative process "restrict[] no speech."

Marijuana Policy Project, 304 F.3d at 85. To the contrary, since

expression is affected by the regulations of the state initiative

process, we apply the intermediate scrutiny standard set out in

O'Brien.

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 4. Applying O'Brien Scrutiny

Under the O'Brien standard, conduct combining "speech"

and "non-speech" elements can be regulated if four requirements are

met: (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. We have no difficulty finding that the Massachusetts

exclusions meet the second requirement, as Massachusetts certainly

has a substantial interest in maintaining the proper balance

between promoting free exercise and preventing state establishment

of religion. Neither do we doubt that Massachusetts has a

substantial interest in restricting the means by which these

fundamental rights can be changed. We have already stated that the

exclusions aim at preventing certain uses of the initiative

process, not at stemming expression, and thus meet the third

O'Brien requirement.

As for the first requirement, that the regulation be

within the constitutional power of the government, we find that the

only serious, non-speech-related constitutional challenges to

Massachusetts' power to regulate the subjects that may be reached

by its initiative process are the Free Exercise and Equal

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Protection arguments, which we reject in this opinion. Having now

concluded that Massachusetts' interest in protecting the

fundamental free exercise and freedom from state-established

religion is substantial and its method otherwise constitutionally

permissible, we finally consider the fourth O'Brien requirement:

whether the incidental restrictions on would-be initiative

proponents' First Amendment freedoms are greater than essential to

the furtherance of that interest. Since we see no other way in

which Massachusetts could achieve its interest in safeguarding

these fundamental freedoms in its Constitution from popular

initiative, we recognize that the restriction on speech is no more

than is essential. Thus, we conclude that Massachusetts' Anti-Aid

and Religious Exclusions do not violate the First Amendment free

speech guarantee.

B. Free Exercise Claim

We now consider whether the Religious Exclusion violates

the Free Exercise Clause of the First Amendment.3 The Free

Exercise Clause guarantees that "Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof," U.S. Const. amend. I (emphasis added), and it

has been applied to the States through the Fourteenth Amendment.

See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

3
Appellants do not challenge the Anti-Aid Exclusion under the
Free Exercise Clause.

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 The protections provided by the Free Exercise Clause may

be broken down into a number of conceptual categories, none of

which are implicated by the Religious Exclusion. First and

foremost, the Free Exercise Clause entails an absolute prohibition

on government infringement on the "freedom to believe." Torcaso v.

Watkins, 367 U.S. 488, 492-93 (1961). Because the prohibition is

absolute, laws which infringe on individuals' freedom of belief are

per se unconstitutional. Id. (refusing to consider the state's

asserted justifications for a law that infringed on citizens'

freedom of belief); see also West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943) (holding that a state could not

compel students in public schools to salute the flag, where their

religion forbade it). However, that prohibition is inapposite here

because the Religious Exclusion does not hinge on the religious

beliefs of initiative proponents. See McDaniel v. Paty, 435 U.S.

618, 627 (1978) (finding that a Tennessee law that precluded

ministers from eligibility as constitutional convention delegates

did not infringe on freedom of belief, but nevertheless

invalidating it under strict scrutiny).

In McDaniel v. Paty, the Supreme Court examined a state

law preventing a minister from serving as a constitutional

convention delegate under strict scrutiny, because although it did

not directly burden his religious beliefs, it directly burdened his

religious "status, acts, and conduct." McDaniel, 435 U.S. at 626-

-16-
27. This protection is related to, though distinct from, the per

se prohibition on laws infringing on belief. Arguing from

McDaniel, plaintiffs maintain that a state violates the Free

Exercise Clause when it creates a general political process, but

excludes some from access to that process on the basis of religion.

However, plaintiffs fail to explain how this proposition applies to

their case. The Religious Exclusion prevents anyone from proposing

new laws or constitutional amendments relating to religion through

the initiative process. It does not exclude religious people, or

people of a certain religion, from proposing laws or amendments.

In other words, a religious individual of any particular faith,

like any other citizen, can propose a new law or amendment on any

subject that is open to amendment by initiative.

Moreover, the Religious Exclusion we are asked to

scrutinize does not distinguish based on religious status.4 Like

the scholarship program at issue in Locke v. Davey, the Religious

Exclusion does not deny plaintiffs "the right to participate in the

political affairs of the community," 540 U.S. at 720

4
Plaintiffs claim that McDaniel stands for the proposition that
opponents of a law need not show that the law imposes a particular
burden on religious belief or practice. Although this may be true
as a general proposition, this leaves plaintiffs to argue that they
are being discriminated against on the basis of religious "status,"
as was the case in McDaniel. 435 U.S. at 626-27 (finding violation
of plaintiff's right to Free Exercise of religion where his status
as a minister resulted in discrimination). However, plaintiffs
make no headway with this argument because they cannot show that
the Massachusetts Religious Exclusion treats people differently
based on their religious "status."

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(distinguishing Locke from McDaniel, 435 U.S. 618); nor does it

"require[] [plaintiffs] to choose between their religious beliefs

and receiving a government benefit." Id. at 720-21 (distinguishing

Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987);

Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707

(1981); Sherbert v. Verner, 374 U.S. 398 (1963)). The exclusion

applies equally to measures proposed by any group or individual,

regardless of their religious affiliation or lack thereof.

Having concluded that the Religious Exclusion does not

discriminate on the basis of religious belief or status, we also

briefly note that plaintiffs make no colorable argument that the

exclusion prohibits any religious act or conduct. It does not, for

example, preclude performing rites required by their religion, see

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520,

533 (1993) (outlawing animal sacrifice central to the Santería

religion), or single out their religion's method of worship, see

Fowler v. Rhode Island, 345 U.S. 67 (1953) (preventing Jehovah's

Witnesses from meeting in public parks while other denominations

were allowed to hold services). The Supreme Court has stated its

reluctance to strike down "legislation which imposes only an

indirect burden on the exercise of religion, i.e., legislation

which does not make unlawful the religious practice itself."

Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Certainly, the

amendments that plaintiffs want to propose may be motivated by

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their religious beliefs, but they do not claim that working to pass

those amendments is an aspect of practicing their religion.

Finally, plaintiffs ask us to consider whether the

passage of the Religious Exclusion was motivated by animus toward

religion. The Supreme Court has considered the existence of animus

motivating a law's proponents when determining whether the law

violates the Free Exercise Clause of the First Amendment. See,

e.g., Locke, 540 U.S. at 725 (finding nothing in the history, text

or application of the Washington scholarship program in question

"that suggests animus towards religion"). In the Establishment

Clause context, the Supreme Court has "often stated the principle

that the First Amendment forbids an official purpose to disapprove

of a particular religion or of religion in general." Church of the

Lukumi, 508 U.S. at 532 (noting that "[t]hese cases, however, for

the most part have addressed governmental efforts to benefit

religion or particular religions, and so have dealt with a question

different, at least in its formulation and emphasis, from the issue

here"). Although plaintiffs present significant evidence of animus

against Catholics in Massachusetts in 1855 when the Anti-Aid

Amendment was passed, they fail to show that religious animus

motivated the passage of the Religious Exclusion in 1918.

Plaintiffs rely heavily on one statement made by the Religious

Exclusion's sponsor, indicating that he would "protect the

initiative and referendum against the religious fanatics and

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against the professional religionists." However, we need not reach

the question of whether this type of fervor against religiously

motivated political action would require that the amendment be

struck down, because plaintiffs present no evidence that the other

members of the Constitutional Convention of 1917-1918 acted from

similar motivations. Given the wide margin by which the Religious

Exclusion passed, and the significant Catholic representation at

the Convention, we see no evidence that animus against religion was

a motivating factor behind the Exclusion's passage.

Furthermore, plaintiffs cite to no case in which evidence

of animus toward religion was itself sufficient to invalidate a

government action, without the animus being tied to some resulting

infringement on freedom of belief or on religious status, acts or

conduct. While we must apply strict scrutiny when "the object of

a law is to infringe upon or restrict practices because of their

religious motivation," plaintiffs here have not shown that the

Religious Exclusion results in any restriction of their religious

practices. Id. at 533 (citing Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U.S. 872, 878-79 (1990)) (emphasis

added) (considering evidence of animus toward the Santería religion

where the ordinance prohibiting ritual slaughter of animals did

not, on its face, target the Santería religion, but effectively

outlawed one of the religion's "principal forms of devotion").

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 C. Equal Protection

Plaintiffs also argue that the Massachusetts Exclusions

violate the protections afforded by the Equal Protection Clause.

U.S. Const. amend. XIV. Plaintiffs argue that the Religious

Exclusion violates equal protection guarantees because it infringes

on the fundamental right to religious free exercise, disadvantages

a suspect class, and fails the more searching rational basis review

required in Romer v. Evans, 517 U.S. 620 (1996). They also

challenge the Anti-Aid Exclusion under a suspect classification

theory and a disparate impact theory. Because of the complexity of

the various equal protection arguments presented, we will address

the arguments one at a time, to the extent that is possible. In

the end, we affirm the district court's grant of summary judgment

against plaintiffs' equal protection claims.

1. Alleged Violation of the Equal Protection Fundamental
Right to Free Exercise of Religion

Before moving to what we see as the substance of

plaintiffs' equal protection claims, we first address their

argument that the Massachusetts Exclusions restricts their

fundamental right to free exercise of religion. Where a

plaintiff's First Amendment Free Exercise claim has failed, the

Supreme Court has applied only rational basis scrutiny in its

subsequent review of an equal protection fundamental right to

religious free exercise claim based on the same facts. Locke, 540

U.S. at 721, n.3 (citing Johnson v. Robison, 415 U.S. 361, 375, n.

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14, (1974)).5 Because we held, above, that the Religious Exclusion

does not violate the Free Exercise Clause, we apply rational basis

scrutiny to the fundamental rights based claim that this exclusion

violates equal protection. For the reasons stated throughout this

opinion, we find that the Massachusetts Exclusions pass such

review.

2. Plaintiffs' Claim that the Religious and Anti-Aid
Exclusions Implicate a Suspect Classification

The central equal protection issue presented is whether

the Massachusetts Religious Exclusion and Anti-Aid Exclusion

impermissibly distort the political process to the disadvantage of

religious individuals. Because we find that the Religious

Exclusion does not draw distinctions based on a suspect

5
In Locke, the Court quickly dismissed Davey's equal protection
claims. The Court explained that "[b]ecause we hold . . . that the
program is not a violation of the Free Exercise Clause, . . . we
apply rational-basis scrutiny to his equal protection claims."
Locke, 540 U.S. at 721, n.3. It bears clarifying that we do not
read this statement to be a blanket rule that where a Free Exercise
Claim fails, all equal protection claims based on the same facts
must also fail. Looking back to Johnson v. Robinson, we interpret
this line of Supreme Court cases to apply only to the extent that
the related equal protection claims are based on a theory that the
law or governmental action in question "interferes with the
fundamental constitutional right to the free exercise of religion."
Johnson, 415 U.S. at 375, n.14. Other types of equal protection
claims may have independent force, and must be considered
accordingly. See id. (finding that only rational basis review
could be applied to plaintiff's equal protection claim insofar as
it was based on interference with the fundamental right to freedom
of religion, and then separately, though briefly, considering the
merits of plaintiff's claim that "conscientious objectors are a
suspect class deserving special judicial protection").

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classification, we hold that it does not violate the Equal

Protection Clause.

Plaintiffs claim that the Religious Exclusion and Anti-

Aid Exclusion draw distinctions on the basis of religion, which

they argue is a suspect classification for purposes of equal

protection analysis.6 However, even assuming that religious

classification should be treated as suspect, we do not see how the

Religious Exclusion and Anti-Aid Exclusion draw distinctions among

Massachusetts citizens based on a suspect classification. The

Religious Exclusion prohibits initiative petitions that concern

"religion, religious practices or religious institutions." The

Anti-Aid Exclusion precludes amendment by initiative of the Anti-

Aid Amendment, which, in addition to containing Massachusetts' free

exercise clause, prevents state funding for private institutions.

On their face, the Exclusions simply carve out particular subject

matters from the initiative process. They do not require different

treatment of any class of people because of their religious

beliefs. They do not give preferential treatment to any particular

religion. See Larson v. Valente, 456 U.S. 228, 246 (1982)

6
But see Tribe, American Constitutional Law § 16-13 at 1465 (2d
ed. 1988) ("Thus far, the cases have limited such strict scrutiny
to instances of prejudice operating to the detriment of racial or
ancestral groups."); see also San Antonio Indep. Sch. Dist. v.
Rodríguez, 411 U.S. 1, 61 (1973) (naming race as the prime example
of a suspect classification, and listing national origin, alienage,
indigency and illegitimacy -- but not religion -- as other
classifications that are sometimes considered suspect).

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(holding, on First Amendment grounds, that "a state law granting a

denominational preference" must be treated as suspect, and

subjected to strict scrutiny). In short, this is not the classic

violation of equal protection in which a law creates different

rules for distinct groups of individuals based on a suspect

classification. See, e.g., Strauder v. West Virginia, 100 U.S. 303

(1879) (overturning state law which limited jury service to white

men only).

The Supreme Court has, nevertheless, sometimes struck

down facially neutral laws, which it recognized were crafted to

avoid facial discrimination. See, e.g., Hunter v. Erickson, 393

U.S. 385, 387-91 (1969) (invalidating an amendment to the Akron,

Ohio city charter, which, in addition to the usual vote by the city

council, required approval by a majority of the city's voters for

any ordinance regulating real estate transactions "on the basis of

race, color, religion, national origin or ancestry," even though

the law "on its face treats [African-American] and white, Jew and

gentile in an identical manner"); Washington v. Seattle School

Dist. No. 1, 458 U.S. 457 (1982) (striking down a Washington

initiative that prohibited school boards from requiring children to

be bused to more distant public schools, while at the same time

making exceptions for every imaginable impetus for busing other

than racial integration). Unlike the Massachusetts Exclusions, the

law in Hunter evinces a clear, solely detrimental effect on a

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suspect class. In Hunter, the law's one obvious result was to make

it more difficult to pass laws prohibiting racial discrimination.

Hunter, 393 U.S. at 391. Similarly, in Washington, although the

initiative did not say so on its face, children could be bused to

a more distant school for virtually any reason except racial

integration. 458 U.S. at 471. In contrast, the Massachusetts

Religious Exclusion prevents both initiatives that would disfavor

as well as those that might benefit religion, and the Anti-Aid

Exclusion, in addition to preventing amendment of the clause

precluding funding to private institutions, also prohibits

amendment of Massachusetts' free exercise clause. Unlike the laws

invalidated in Hunter and Washington, it is undeniable that the

Massachusetts Exclusions both hinder and help the causes of the

alleged suspect class.7

Certainly any form of invidious discrimination because of

religion is forbidden. But "the Establishment Clause and the Free

Exercise Clause[] are frequently in tension." Locke, 540 U.S. at

7
Moreover, in both Hunter and Washington, the Supreme Court found
that the laws were purposely aimed solely at unlawful goals.
Washington, 458 U.S. at 471 (noting that neither the initiative's
sponsors, nor the lower courts, had any difficulty perceiving the
racial aim of the initiative); Hunter, 393 U.S. at 392 (recognizing
Akron's decision to "move slowly in the delicate area of race
relations" as a euphemism for placing an obstacle in the path of
progress against racial discrimination). We address the question
of discriminatory purpose below in considering plaintiffs'
disparate impact argument. We conclude that plaintiffs failed to
present evidence sufficient to prove a uniquely discriminatory
purpose in this case.

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718. States may properly refuse to enact laws that they reasonably

believe may tend to establish religion. While the free exercise of

religion is guaranteed, state support of religion is, in general,

disfavored. And we know of no constitutional principle that

prevents a state from determining that sensitive measures that

relate to religion, religious practices, or religious institutions

should not be made or initiated by the public initiative process

but rather only via the legislature. A state might fear that such

measures, if presented as public referenda, might be more likely to

fuel religious strife or to result in enactments unfair to

religious (or non-religious) minorities. Bearing these

distinctions in mind, we are disinclined to extend the race-based

Hunter and Washington lines of cases to this context, which so

closely mirrors the mandates found in our federal Establishment

Clause and Free Exercise Clause.

3. Plaintiffs Have Not Shown Discriminatory Intent

Plaintiffs further argue that the Anti-Aid Exclusion

violates the Equal Protection Clause on a disparate impact theory.

However, this argument fails because plaintiffs have not shown a

discriminatory purpose behind the exclusion. "[A] law, neutral on

its face and serving ends otherwise within the power of government

to pursue," is not invalid under the Equal Protection Clause simply

because it may disproportionately affect a suspect class.

Washington v. Davis, 426 U.S. 229, 242 (1976). "An unwavering line

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of cases from [the Supreme Court] holds that a violation of the

Equal Protection Clause requires state action motivated by

discriminatory intent; the disproportionate effects of state action

are not sufficient to establish such a violation." Hernández v.

New York, 500 U.S. 352, 372-73 (1991). Plaintiffs present evidence

that widespread anti-Catholic prejudice was a motivating factor

behind passage of the original Anti-Aid Amendment in 1855, a fact

which defendants do not dispute. However, the Anti-Aid Amendment

was largely overhauled in 1917, with the support of 85 of the 94

Catholic delegates to the Constitutional Convention, and soon

afterwards, the Anti-Aid Exclusion was passed with similarly broad

support. No evidence has been offered that the exclusion was

motivated by the same Anti-Catholic animus that impelled the

passage of the original Anti-Aid Amendment. Plaintiffs cannot mix

and match the intent behind one amendment and place it with the

impact of a later, distinct amendment. Thus, without reaching the

question of whether the Anti-Aid Exclusion has a disparate effect

on religious individuals, we reject plaintiffs' equal protection

disparate impact argument because plaintiffs fail to show the

required discriminatory intent.

4. Rational Basis Review Under Romer v. Evans

Having rejected plaintiffs' arguments that the

Massachusetts Exclusions should be subjected to strict scrutiny, we

conclude by considering whether the exclusions survive rational

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basis review. "[I]f a law neither burdens a fundamental right nor

targets a suspect class, we will uphold the legislative

classification so long as it bears a rational relation to some

legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996)

(striking down an amendment to the Colorado Constitution that would

have precluded protection from discrimination on the basis of

sexual orientation as failing rational basis review). In this

case, we have no difficulty finding that Massachusetts' goal of

preventing the establishment of religion is a legitimate one.

Additionally, the chosen means clearly bear a rational relation to

that end. Thus, the instant case is easily distinguished from

Romer, where the Court found that passage of the Colorado amendment

could only be explained by "'a bare . . . desire to harm a

politically unpopular group,'" which "'cannot constitute a

legitimate governmental interest.'" Id. at 634 (quoting Dep't of

Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

III. Conclusion

For the foregoing reasons, the decision of the district

court is affirmed.

Affirmed.

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