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SJC-13893
ARCANGELO CELLA & others1 vs. ATTORNEY GENERAL & another.2
Suffolk. May 6, 2026. - June 23, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Initiative. Constitutional Law, Initiative petition. Attorney
General. Religion. Rent Control, Exemption. Landlord and
Tenant, Rent.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 6, 2026.
The case was reported by Gaziano, J.
Edmund P. Daley (Elissa Flynn-Poppey & Kadie D. Martin also present) for the plaintiffs.
Phoebe Fischer-Groban, Assistant Attorney General, for the defendants.
The following submitted briefs for amici curiae:
Frank J. Bailey, Paul R. Johnson, & Gabriela Forero for Pioneer New England Legal Foundation.
Laura F. Camara, Courtney Libon, Joseph Michalakes, & Mark Martinez for Homes for All Massachusetts.
1 Teresa del Signore, Katherine Horey, and Susan M. Renfrew.
2 Secretary of the Commonwealth.
2
Curtis F. Dowling, of California, & Michael A. Bednarz for California Apartment Association.
Thaddeus A. Heuer, Andrew M. London, & Kevin Y. Chen for MassLandlords, Inc.
Meredith G. Fierro for Greater Boston Chamber of Commerce & others.
Elaine J. Goldenberg & Samuel H. Allen for Chamber of Commerce of the United States of America & others.
Kevin J. Powers for Millbury National Bank.
Dan Ordorica, Eloise Lawrence, Adam Druckman, Joshua Lilly, & Richard Lin for Massachusetts Teachers Association & others.
J. Nathan Cole & Herling D. Romero for National Electrical Contractors Association of Greater Boston, Inc., & others.
Thomas Silverstein, of New York, Audrey Lynn Martin, of Maryland, Jane Edmonstone, & Alycia M. Kennedy for Poverty & Race Research Action Council.
GAZIANO, J. The plaintiffs, a group of registered voters,
challenge the Attorney General's certification of Initiative
Petition 25-21, titled "An Initiative Petition to Protect
Tenants by Limiting Rent Increases." The petition proposes a
limit on annual rent increases for residential dwelling units
but exempts several categories of units, including those in
"facilities operated solely for . . . religious . . . purposes."
Because of this exemption, we conclude that the petition
"relates to religion, religious practices or religious
institutions," an excluded matter under art. 48 of the
Amendments to the Massachusetts Constitution. See art. 48, The
Initiative, II, § 2. Accordingly, art. 48 bars placement of the
petition on the November 2026 Statewide election ballot.3
3 We acknowledge the amicus briefs submitted in support of the defendants by Homes for All Massachusetts; the Massachusetts
3
Background. In 2025, a group of Massachusetts voters
submitted the initiative petition, titled "An Initiative
Petition to Protect Tenants by Limiting Rent Increases," to the
Attorney General, who designated the petition as Initiative
Petition 25-21.
General Laws c. 40P, § 2, "broadly prohibits any regulatory
scheme based upon or implementing rent control." Rent control
is defined to include "any regulation that in any way requires
below-market rents for residential properties." G. L. c. 40P,
§ 3. See G. L. c. 40P, § 4. The petition, if enacted, would
end the Statewide prohibition on rent control "by striking out
[G. L. c. 40P]" and instituting in its place "a limit on any
Teachers Association, Service Employees International Union Local 509, the Network for Public Health Law, Public Health Law Watch, ChangeLab Solutions, and Health in Partnership; and the Poverty & Race Research Action Council. We also acknowledge the amicus briefs submitted in support of the plaintiffs by the California Apartment Association; MassLandlords, Inc.; the Greater Boston Chamber of Commerce, the Charles River Regional Chamber, and the Retailers Association of Massachusetts; the Chamber of Commerce of the United States of America, Associated Industries of Massachusetts, and the National Association of REALTORS®; Millbury National Bank; National Electrical Contractors Association of Greater Boston, Inc., Associated General Contractors of Massachusetts, Associated Subcontractors of Massachusetts, Inc., Greater Boston Plumbing Contractors Association, New England Mechanical Contractors Association, Building Trades Employers' Association, and Construction Industries of Massachusetts, Inc.; and Pioneer New England Legal Foundation.
4
annual rent increase" set at "the annual increase in Consumer
Price Index or [five percent], whichever is lower."4
Rent control would apply to "covered dwelling unit[s],"
defined as "all dwelling units leased for residential, but not
commercial, use," with five exemptions.5 Relevant here,
"[d]welling units in facilities operated solely for . . .
religious . . . purposes" would be excluded.
On September 3, 2025, the Attorney General certified that
the petition contained only subjects that are not excluded from
the initiative process and that it otherwise complied with the
4 The stated purpose of the petition "is to provide housing stability for tenants, landlords, and communities across the [C]ommonwealth, and curb displacement as a result of the housing shortage and affordability crisis in Massachusetts."
5 In full, the petition exempts:
"(a) Dwelling units in owner-occupied buildings with four
or fewer units.
"(b) Dwelling units whose rents are subject to regulation
by a public authority; provided, however, that occupancy by
a tenant with a mobile housing voucher does not constitute
being regulated by a public authority.
"(c) Dwelling units that are rented primarily to transient
guests for a period of less than 14 consecutive days.
"(d) Dwelling units in facilities operated solely for
educational, religious, or non-profit purposes.
"(e) Dwelling units for which the first residential
certificate of occupancy is less than 10 years old, for a
period of 10 years from the date at which such certificate
of occupancy was issued."
5
requirements of art. 48. See art. 48, The Initiative, II, § 3,
as amended by art. 74 of the Amendments. The Attorney General
also issued a summary of the petition as required by art. 48.
See id. The petition's proponents then filed the petition and
summary with the Secretary of the Commonwealth (Secretary), who
prepared and distributed blank signature forms for the
proponents to circulate. After the proponents provided the
Secretary with the requisite number of signatures, the Secretary
transmitted the petition to the clerk of the House of
Representatives. If the proponents timely submit sufficient
additional signatures to the Secretary, the petition will be
included on the November 2026 Statewide election ballot.
On February 6, 2026, the plaintiffs -- four registered
voters residing in the Commonwealth -- commenced an action in
the county court against the Attorney General and the Secretary,
seeking declaratory relief, as well as relief in the nature of
certiorari and mandamus. In their complaint, the plaintiffs
requested that the court declare that "the [p]etition is invalid
and not in compliance with the requirements of the Massachusetts
Constitution," quash the Attorney General's certification of the
petition, and enjoin the Secretary from placing the petition on
the November 2026 Statewide election ballot. The plaintiffs
contend that the Attorney General should not have certified the
petition as compliant with art. 48 because, among other things,
6
it impermissibly "relates to religion, religious practices, or
religious institutions."6
On February 9, 2026, the parties filed a joint motion
requesting the case be reserved and reported to the full court.
A single justice did so the following day.
Discussion. Before an initiative petition may be submitted
to the people, the Attorney General must certify, among other
things, that the petition "contains only subjects not excluded
from the popular initiative." Art. 48, The Initiative, II, § 3,
as amended by art. 74. See Carney v. Attorney Gen., 447 Mass.
218, 225 (2006), S.C., 451 Mass. 803 (2008) (art. 48 obligates
Attorney General "to ferret out obviously improper initiative
petitions" [citation omitted]). Our review of the Attorney
General's decision to certify an initiative petition is de novo,
with due consideration to "the firmly established principle that
art. 48 is to be construed to support the people's prerogative
to initiate and adopt laws" (citation omitted). Clark v.
Attorney Gen., 494 Mass. 187, 190 (2024).
6 Given the result we reach, we do not address the
plaintiffs' alternative arguments that the petition is inconsistent with the right to receive compensation for private property appropriated to public use, that it violates art. 48's related subjects requirement, or that the Attorney General's summary of the petition is unfair. See Anderson v. Attorney Gen., 479 Mass. 780, 798 n.9 (2018).
7
1. Religious subjects exclusion. Article 48 reserves the
power of Massachusetts voters to submit initiative petitions to
the people for approval or rejection. See art. 48, I. See also
Mazzone v. Attorney Gen., 432 Mass. 515, 519 (2000). But this
power is limited. "The people for their own protection have
provided that the initiative shall not be employed with respect
to certain matters" because "[s]ome matters are naturally
unsuitable for popular lawmaking." Collins v. Secretary of the
Commonwealth, 407 Mass. 837, 844 (1990), quoting Bowe v.
Secretary of the Commonwealth, 320 Mass. 230, 247 (1946). These
matters are listed in art. 48's "Excluded Matters" section,
which, in relevant part, provides: "No measure that relates to
religion, religious practices or religious institutions . . .
shall be proposed by an initiative petition." Art. 48, The
Initiative, II, § 2.7
7 Art. 48, The Initiative, II, § 2, first par., provides:
"No measure that relates to religion, religious practices
or religious institutions; or to the appointment,
qualification, tenure, removal, recall or compensation of
judges; or to the reversal of a judicial decision; or to
the powers, creation or abolition of courts; or the
operation of which is restricted to a particular town, city
or other political division or to particular districts or
localities of the commonwealth; or that makes a specific
appropriation of money from the treasury of the
commonwealth, shall be proposed by an initiative petition;
but if a law approved by the people is not repealed, the
general court shall raise by taxation or otherwise and
shall appropriate such money as may be necessary to carry
such law into effect."
8
Our analysis begins with the text of art. 48, giving its
words "their natural and obvious sense according to common and
approved usage" (citation omitted). Opinion of the Justices,
309 Mass. 555, 557 (1941). Although the plain meaning of words
used in art. 48 "cannot be . . . controlled" by the historical
context, Yont v. Secretary of the Commonwealth, 275 Mass. 365,
369 (1931), we may also consider "the conditions under which
[art. 48] . . . [was] framed, the ends which it was designed to
accomplish, the benefits which it was expected to confer and the
evils which it was hoped to remedy" (citation omitted), Mazzone,
432 Mass. at 526.
"No measure that relates to religion, religious practices
or religious institutions" may be the subject of an initiative
petition. Art. 48, The Initiative, II, § 2. "Under the plain
meaning of art. 48, where a law by its terms deals with
religion, religious practices, or religious institutions, it is
excluded" (quotation and citation omitted). Collins, 407 Mass.
at 851. In other words, an initiative petition relates to
religion if religion is "a factor in [the initiative petition's]
application." Opinion of the Justices, 309 Mass. at 558-559.
Our interpretation of the religion exclusion comports with
the intent of the framers of art. 48, as evidenced by the
debates of the constitutional convention of 1917–1918
(convention). See Bates v. Director of the Office of Campaign &
9
Political Fin., 436 Mass. 144, 156 (2002). See also Opinion of
the Justices, 413 Mass. 1201, 1204 (1992) (convention debates
contextualize "how [art. 48] was received and understood by that
convention, and, consequently, how it was commonly understood at
the time of its adoption"). During the convention, multiple
delegates expressed concern that initiative petitions relating
to religion, religious practices, or religious institutions
would spark harmful public political debate. See 2 Debates in
the Massachusetts Constitutional Convention 1917–1918, 766-769
(1918) (Constitutional Debates). The delegates considered the
religion exclusion necessary "to avoid the consequences of
permitting State-wide public political discussion" of such
matters. Collins, 407 Mass. at 845. See Constitutional
Debates, supra at 767-769. The religion exclusion additionally
reflects the delegates' general desire to separate religion from
politics. As one delegate remarked, based on his belief in "the
entire separation of church and State," "[W]e ought to make it
as difficult as possible to bring religious questions into the
politics of this State." Id. at 769.8
8 These same convention delegates also sought to separate religion and politics through the anti-aid amendment to the Massachusetts Constitution, which "prohibited any use of public money or property for the aid of any private school." Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 671 (1981). See art. 18 of the Amendments to the Massachusetts Constitution, as amended by art. 46 of the Amendments.
10
We have examined the religion exclusion in two opinions.9
First, in Opinion of the Justices, 309 Mass. 555, we considered
an initiative petition that would allow physicians to provide
contraceptive care to married couples. The initiative petition
at issue did not include any language expressly concerning
religion. See id. at 556. We determined that the initiative
petition was unrelated to religion because it concerned "the
promotion and preservation of the public health," which,
"[a]ccording to common understanding, . . . is a secular field."
Id. at 558-559. While we acknowledged that "[s]ome or many
persons may regard all conduct as involving obedience or
disobedience to the will of the Creator," thereby implicating
the possibility that all conduct may have religious
connotations, we rejected the argument that the proposed law
The convention adopted the anti-aid amendment to "promote civic harmony" by removing religion "as far as possible" from politics (citation omitted). Caplan v. Acton, 479 Mass. 69, 80– 81 (2018). And as one convention delegate noted, the religion exclusion appeared to be "perfectly in harmony with . . . the wise provisions of the anti-aid amendment." Constitutional Debates, supra at 768. Beyond adopting the anti-aid amendment, convention delegates added religion as an excluded matter under art. 48 "[t]o further ensure that matters affecting religion would not be subject to public debate." Collins, 407 Mass. at 846 n.8.
9 A group of plaintiffs also challenged an initiative petition under the religion exclusion in Anderson v. Secretary of the Commonwealth, 255 Mass. 366 (1926), but we did not reach the question whether the challenged petition violated art. 48.
11
violated the religion exclusion, as that exclusion "was not
intended . . . to exclude from the initiative all measures
relating to conduct." Id. at 558. Instead, we construed the
religion exclusion to prohibit only initiative petitions that
"relate distinctively 'to religion, religious practices or
religious institutions.'" Id., quoting art. 48, The Initiative,
II, § 2.
More recently, in Collins, 407 Mass. at 838-839, we
determined that a law subject to a referendum10 related to
religion in violation of art. 48. The law at issue in Collins
concerned discrimination based on sexual orientation in housing,
employment, the granting of credit, and public accommodations.
Id. at 839-841. If the referendum passed, it "would reinstate
. . . prior, more limited, statutory exemptions" for religious
institutions. Id. at 841. We concluded that the law, which "on
its face expressly purport[ed] to alter the rights and
obligations of religious institutions," could not be made the
subject of a referendum petition because it related to religion,
religious practices, or religious institutions within the
meaning of art. 48. Id. at 847-849. In so concluding, we
10Although Collins concerned a referendum petition, while here we are concerned with an initiative petition, the relevant excluded matters language in art. 48 is identical for the two measures. See art. 48, The Initiative, II, § 2; art. 48, The Referendum, III, § 2.
12
stated that the law made religion a "factor in the application
of the exemption" and "alter[ed] the legal status of religious
institutions with respect to discrimination," providing them
with "special treatment." Id. at 847-848. Consequently, if the
law had been made the subject of a referendum, voters would have
been asked to consider "whether the scope of freedom of
religious institutions to discriminate should be expanded or
constricted." Id. at 848.
2. Application. Initiative Petition 25-21 subjects all
"covered dwelling units" to rent control. However, the petition
excludes several categories of residential properties from its
definition of "covered dwelling units," including those in
"facilities operated solely for educational, religious, or nonprofit purposes." The petition, like the law subject to a
referendum in Collins, 407 Mass. 837, concerns a generally
secular subject matter -- rent control. But, by including an
express exemption for facilities operated solely for religious
purposes, the petition impermissibly makes religion "a factor in
[the petition's] application." Id. at 851, quoting Opinion of
the Justices, 309 Mass. at 559. And in order to enforce the
proposed law, the exemption would require the government to
determine if a facility is "operated solely for . . . religious
. . . purposes," and then make an enforcement decision based on
the facility's religious purpose (or lack thereof). Further,
13
the petition would confer preferential treatment on religious
institutions by allowing them to increase rent prices, while
limiting rent increases for secular facilities. See Collins,
supra at 848.11
The Attorney General argues that the petition does not
discriminate in favor of religious institutions because it also
provides exemptions for secular dwelling units, including
facilities operated for educational and nonprofit purposes. The
presence of secular exemptions does not negate that the
petition, on its face, uses religion as "a factor in its
application" (citation omitted). Collins, 407 Mass. at 851.
Nor do these secular exemptions change the fact that the
petition, by including a carveout for religious facilities,
brings "religious questions into the politics of this State"
(citation omitted). Id. at 846.
The Attorney General also argues that the petition was
properly certified because its "main purpose" -- limiting rent
increases -- is unrelated to religion. We have applied a "main
purpose" test when considering whether an initiative petition
concerns another excluded matter: "the powers . . . of courts."
11In the present posture, our role is limited to
determining whether the initiative petition complies with art. 48; it does not include positing whether there may be other constitutional ramifications of the proposed law once enacted. See Collins, 407 Mass. at 850 & n.9.
14
Art. 48, The Initiative, II, § 2. See Mazzone, 432 Mass. at
519-522. Under the "main purpose" test, "we have said that an
initiative petition is not excluded by art. 48 unless its 'main
design' or 'main purpose' is to affect the powers of the courts"
(citation omitted). Albano v. Attorney Gen., 437 Mass. 156, 158
(2002). Stated differently, "[t]o fall within the exclusion,
the petition must affect the powers of the courts in more than
an incidental or subsidiary way." Id. at 158–159.
The "main purpose" test is appropriate for initiative
petitions concerning the powers of the courts because this
subject could be implicated whenever there is "any change in any
law that [is] enforceable in the courts" (citation omitted).
Mazzone, 432 Mass. at 520. Thus, an "overly rigid
interpretation of [that] phrase" would turn the initiative
process into "a near nullity" (citation omitted). Id. at 519–
520.
We have not yet decided whether the main purpose test
applies to measures related to religion. See Collins, 407 Mass.
at 851 n.10 (declining to determine whether main purpose test,
or variant thereof, applied to art. 48 for measures relating to
religion). We decline to apply it here. Unlike the exclusion
relating to the powers of the courts, which could otherwise be
implicated by virtually any petition proposing a judicially
enforceable law, applying the religion exclusion according to
15
its plain language -- to exclude all petitions proposing laws
that "relate[] to religion, religious practices or religious
institutions" -- does not threaten to swallow the entirety of
art. 48. As we have already recognized, although religious
beliefs may encompass a wide array of human conduct, an
initiative petition does not "relate[]" to religion within the
meaning of art. 48 just because a person's personal religious
beliefs might inform his or her views on an otherwise secular
subject matter; rather, the measure itself must relate to
religion. See Opinion of the Justices, 309 Mass. at 558-559
(initiative petition regarding contraception concerned "secular
field" not related to religion). Accordingly, unlike with the
exclusion for measures relating to the power of courts, petition
proponents may readily avoid this excluded matter by eschewing
any "terms deal[ing] with religion, religious practices, or
religious institutions" (citation omitted). Collins, supra at
851.
Applying a less exacting standard -- permitting at least
some measures that by their own terms govern religion, religious
practices, or religious institutions -- would contravene not
only the plain language of art. 48, but also the intent of its
framers. The convention delegates intended to strictly maintain
"the entire separation of church and State" by "mak[ing] it as
16
difficult as possible to bring religious questions into the
politics of this State." Constitutional Debates, supra at 769.
Conclusion. The petition contains matters "relat[ing] to
religion, religious practices or religious institutions" in
violation of art. 48. Art. 48, The Initiative, II, § 2. We
remand the matter to the county court for entry of a judgment
declaring that Initiative Petition 25-21 is not in compliance
with the excluded matters section of art. 48, and enjoining the
Secretary from taking steps to place the measure on the 2026
Statewide election ballot.
So ordered.
KAFKER, J. (concurring). I concur albeit on narrower
grounds. Although most of the initiative, which proposes to
limit residential rent increases for large for-profit landlords,
clearly has nothing to do with religion or religious
institutions, its exemption for "[d]welling units in facilities
operated solely for . . . religious . . . purposes" requires
application of a test based on religion (emphasis added). This
religious test also invites an intrusive review of religious
beliefs and practices proscribed by art. 48 of the Amendments to
the Massachusetts Constitution, as the test whether a rental
unit is being operated "solely for . . . religious . . .
purposes" requires an inquiry into the internal affairs of, and
even the motives and purposes of, a religious institution, as
well as its finances. That, in my opinion, is prohibited by
art. 48.
The express purpose of the initiative in question is "to
provide housing stability for tenants, landlords, and
communities across the commonwealth, and curb displacement as a
result of the housing shortage and affordability crisis in
Massachusetts." This express purpose is clearly secular, not
religious. The initiative would limit the annual rent increases
for residential dwelling units in the Commonwealth by the lower
of the annual increase in the Consumer Price Index or five
percent. It would apply to "all dwelling units leased for
2
residential, but not commercial, use," except that, as relevant
here, it would not apply to "[d]welling units in facilities
operated solely for educational, religious, or non-profit
purposes." Apart from this one exemption, this initiative does
not in any way "relate[] to religion, religious practices or
religious institutions."1 Art. 48, The Initiative, II, § 2.
Whether this rent control provision nonetheless relates to
religion as proscribed by art. 48 is the question before this
court. I conclude that the specific language of the exemption,
particularly its required test to determine whether the dwelling
unit is operated "solely for . . . religious . . . purposes,"
renders it improper, as it raises a distinct, intrusive, and
potentially divisive religious inquiry. Had the initiative
simply stated that it limits rent increases in dwelling units
operated by for-profit institutions, but not in dwelling units
operated by non-profit institutions, a very different question
would have been presented. Distinguishing for-profit from nonprofit institutions does not require an analysis that relates to
religion or religious institutions.
Article 48 provides: "No measure that relates to religion,
religious practices or religious institutions . . . shall be
proposed by an initiative petition." Art. 48, The Initiative,
1 I am aware of no other State that has such a religion exclusion in its initiative or referendum process.
3
II, § 2. Neither "relates to" nor "religion, religious
practices or religious institutions" are further defined by the
article or other provisions of the Constitution, nor, in my
view, is the plain meaning of these terms obvious.2 See Opinion
of the Justices, 309 Mass. 555, 557 (1941). This court has also
addressed this provision in only two opinions: the 1941 Opinion
of the Justices, supra, and Collins v. Secretary of the
Commonwealth, 407 Mass. 837 (1990), both of which provide only
limited guidance.
In attempting to discern the meaning of the provision, the
court in Collins reviewed the constitutional history of the
provision, explaining that the sponsor of the amendment that
would become the religion provision in art. 48, Louis Swig of
Taunton,
"expressed his purpose to 'protect the initiative and
referendum against those . . . [who] try to get political
preferment because of their religious belief, and . . . to
protect the initiative and referendum from the efforts that
will be made . . . to drag constantly before the people
these religious fights.' [2 Debates in the Massachusetts
Constitutional Convention 1917-1918, 766-767 (1918)].
[Edwin] Curtis of Boston expressed the view 'that all
religious subjects would be handled better by considering
2 Concern about the ambiguity of the religion exclusion's language was raised at the constitutional convention that ratified art. 48. As one delegate put it, "some court would have to say what is religion and what is not, what is a religious practice and what is not, and you know how we all differ on those matters. I think that psalm-singing is a religious practice, and you do not, and we never can agree on it." 2 Debates in the Massachusetts Constitutional Convention 1917-1918, 982 (1918).
4
them before the Legislature than . . . [by] making them the
subject of a general discussion by the people at
large.' Id. at 768. [Frederick] Anderson of Newton stated
his belief 'in the entire separation of church and State,
. . . that religion has no place in politics at all, . . .
[and] that we ought to make it as difficult as possible to
bring religious questions into the politics of this
State.' Id. at 769."
Collins, 407 Mass. at 845-846. E. Gerry Brown of Brockton
referenced the anti-aid amendment, which was also debated and
passed at the same constitutional convention and prevented
public funds from being used to support religious schools.3
Ultimately, "Swig's amendment was carried by voice vote . . .
and was later inserted into the provisions governing the
referendum." Id. at 846. As discussed infra, this
constitutional history is subject to conflicting interpretations
when addressing exceptions, in otherwise secular initiatives,
designed to preserve the separation of church and State or to
protect the free exercise of religion.
The Justices attempted to clarify the meaning and scope of
the art. 48 "relates to religion" prohibition in Opinion of the
3 "Proponents of [the anti-aid amendment at the same constitutional convention] urged that liberty of conscience was infringed whenever a citizen was taxed to support the religious institutions of others; that the churches would benefit in independence and dignity by not relying on governmental support; and, more generally or colloquially, that to promote civic harmony the irritating question of religion should be removed from politics as far as possible, and with it the unseemly and potentially dangerous scramble of religious institutions for public funds in ever-increasing amounts." Bloom v. School Comm. of Springfield, 376 Mass. 35, 39 (1978).
5
Justices. In that opinion, the Justices considered a proposed
law entitled "An Act to allow physicians to provide medical
contraceptive care to married persons for the protection of life
or health." Opinion of the Justices, 309 Mass. at 556. As
summarized by the Attorney General at the time:
"The proposed measure provides that the present statutes
which make it a crime . . . knowingly to advertise, . . .
publish, . . . or circulate any matter containing reference
to any person from whom or place where any drug, instrument
or means whatever, or any advice or information may be
obtained, for the purpose of preventing pregnancy, or to
sell, . . . offer or advertise any drug, medicine,
instrument or other article for the prevention of
conception, . . . shall not apply to treatment or
prescription given to married persons for protection of
life or health by or under the direction of registered
physicians nor to teaching in chartered medical schools nor
to publication or sale of medical treatises or journals."
Opinion of the Justices, 309 Mass. at 556-557.
In concluding that the initiative did not relate to
religion, the Justices recognized that "[s]ome or many persons
may regard all conduct as involving obedience or disobedience to
the will of the Creator," but that is not the standard for
evaluating what is proscribed by art. 48. Id. at 558. The
Justices instead recognized that "a measure to be excluded
thereby from the initiative must relate distinctively 'to
religion, religious practices or religious institutions'"
(emphasis added). Id. The law at issue did not for a number of
reasons. As further explained by the Justices:
6
"The proposed law . . . for the promotion and preservation
of the public health by regulating medical prescription and
treatment and teaching . . . [is, a]ccording to common
understanding, . . . in general . . . secular . . . . The
proposed law is [also] purely permissive. Religion is not
a factor in its application and, if approved by the voters,
it will not interfere with the freedom of any person within
its scope to act in strict accordance with his religious
views."
Opinion of the Justices, 309 Mass. at 558-559.4
Further guidance in the application of the religion
exclusion was provided in Collins, 407 Mass. at 844-852. In
that case, the referendum at issue was of "An Act making it
unlawful to discriminate on the basis of sexual orientation."5
Id. at 838. That act, however, included two provisions that
expanded religious institutions' current exemption from
antidiscrimination laws. Not only did it provide an exemption
for religious institutions against discrimination based on
sexual orientation, but it also expanded existing religious
exemptions. The act
"include[d] a broad 'preferment' of religious institutions
to discriminate on the basis of race, color, religious
creed, national origin, sex, age, ancestry, handicap and
4 Justice Henry T. Lummus, signatory to the 1941 Opinion of the Justices, not only was a delegate to the 1917-1918 constitutional convention, but was also a member of the convention's committee on initiative and referendum.
5 In addition to enabling initiative petitions proposing new legislation, art. 48 also provides for referendums on existing laws, which are subject to the identical prohibition on religious matters. Analysis of the religion exclusion is therefore the same, whether the art. 48 ballot measure in question is an initiative petition or referendum.
7
. . . sexual orientation in ways not permitted of any other
persons or organizations. [If such a preferment] were made
the subject of a referendum, the public would be permitted
to vote directly on how religious institutions may conduct
themselves."
Id. at 848. The court distinguished this referendum from the
initiative addressed in Opinion of the Justices, 309 Mass. 555:
"In contrast . . . , these provisions [expanding the exemption
of religious institutions from antidiscrimination laws] make an
institution's connection with religion the sole factor in the
application of the exemption, and make 'religious principles'
the sole basis upon which [certain] discrimination is
permitted." Collins, supra.
In applying these two opinions to the facts of the instant
case, I recognize that the line drawing in this area is
difficult. Where the initiative concerns matters commonly
understood to be secular, interference with the power of the
people to legislate should be respected. See Opinion of the
Justices, 309 Mass. at 558. See also Yankee Atomic Elec. Co. v.
Secretary of the Commonwealth, 403 Mass. 203, 211 (1988) ("art.
48 is to be construed to support the people's prerogative to
initiate and adopt laws"). Opinion of the Justices, 309 Mass.
at 558, makes this point explicitly. It was also, however,
important to the Justices that the initiative at issue involved
the express application of no tests based in any way on
8
religion. Id. at 559 ("[r]eligion is not a factor in its
application").
Where distinctions are expressly drawn based on religion,
as they were in Collins, a different set of considerations come
into play. Whether all such distinctions violate art. 48 is in
my view a very difficult question. Is the recognition in an
initiative of any distinction necessary to preserve the
separation of church and State, or to protect the right to the
free exercise of religion as required by the State or Federal
Constitutions,6 or to prohibit State support of religious
institutions as required by the anti-aid amendment enough to
6 In the view of at least two Justices, the religious exemption to the antidiscrimination law in Collins was included for this precise reason. See Collins, 407 Mass. at 852 (Nolan, J., dissenting) ("Clearly, the Legislature added §§ 1 and 14, not to benefit religious institutions, but to mitigate the risk of the statute being attacked on constitutional grounds"). I further note that the United States Supreme Court has found the procedures and processes for State initiative petitions to be in violation of the First Amendment to the United States Constitution. See, e.g., Buckley v. American Constitutional Law Found., 525 U.S. 182, 193-197 (1999) (holding that State constitutional amendment requiring initiative petition circulators to be registered voters violated First Amendment). See also Hermann v. Attorney Gen., 492 Mass. 51, 59-60 (2023) ("While the question whether a proposed law [imposing limits on political contributions] bears on an excluded subject under art. 48 is by its terms a question of State constitutional law, in the instant cases, the question to be decided ultimately revolves around Federal constitutional law. This is because we cannot provide less protection under the Massachusetts Declaration of Rights for political contributions than that provided for such contributions under the First Amendment . . .").
9
render an otherwise permissible secular initiative a violation
of the "relates to religion" prohibition of art. 48?
Preservation of the separation of church and State, protecting
the right to the free exercise of religion, and prohibiting
State support of religious schools were also important
constitutional objectives at the constitutional convention.
See, e.g., art. 46 of the Amendments to the Massachusetts
Constitution (containing anti-aid and free exercise provisions
devised at same convention as art. 48). The constitutional
history thus cuts both ways when considering an exception in an
otherwise secular initiative designed to protect the separation
of church and State, the free exercise of religion, and anti-aid
principles. To avoid the difficult constitutional questions
presented by initiatives recognizing such necessary
distinctions, I would decide the validity of this initiative on
much narrower grounds, as did the court in Collins.7
7 It is true that the Collins court stated that "the inquiry whether a law is excluded from the initiative under art. 48 is a separate and distinct inquiry from whether it would be constitutional if enacted." Collins, 407 Mass. at 850. That is because of the difficulty of conclusively resolving
constitutional questions prematurely and "abstractly," an observation this court has found "particularly pertinent with respect to constitutional questions regarding the rights of religious institutions" (citation omitted). Id. at 850 n.9. That question, however, is distinct from the interpretive question whether an initiative that seeks to anticipate and avoid a constitutional question regarding religion through an exception in an otherwise secular initiative is nonetheless in violation of the religion prohibition in art. 48. The presence
10
The court in Collins could have simply said that any
initiative or referendum that contains any religious distinction
in any provision runs afoul of the art. 48 prohibition against
initiatives or referendums that relate to religion, but it did
not. The court's holding focused instead on the significant
expansion of the religious exemption in the act that was the
subject of the referendum. See Collins, 407 Mass. at 848. I
would likewise focus on the significance, and potential
divisiveness, of the religious exemption being drawn here.8
Although the essence of the initiative here involves a
secular subject, rent control, as drafted it would require an
express religious consideration in determining whether an
exemption applied. That exemption also would not simply
reference a religious exception already well recognized in
of such distinctions in the initiative itself may help to reassure voters considering whether to vote in favor of passing an initiative that it does not violate such constitutional rights.
I agree with the court that we do not employ a "main
8
purpose" test to determine whether the initiative violates the "relates to religion" prohibition in art. 48. Even if the main purpose relates to something else, as the act at issue in Collins related to sexual orientation discrimination, it may still present a significant, divisive question related to religion that is sufficient to trigger the prohibition. This can occur even in a few provisions, as it did in Collins. At the same time, some religious exemptions may be too
insignificant or uncontroversial to derail an initiative, for example, a referendum on whether to exclude church bingo from the list of permissible games of chance -- a measure that reached the ballot in 1944. See G. L. c. 271, § 22A.
11
existing law, which would have presented a more difficult
question. Rather the exemption provided would require an
analysis whether the dwelling unit of a religious institution
was being operated "solely for . . . religious . . . purposes."
This is a fraught inquiry. It invites an analysis into the
internal affairs of religious organizations and their
motivations for providing the dwelling units, and the costs they
charge for them. Whether a dwelling unit in a religious
institution, including a religious retirement community,
university, or sober house, for example, is being operated
solely for religious purposes appears to require a deep dive
into not only the religious institution's finances, but also its
religious practices and beliefs. For these reasons, I conclude,
the religious exemption, as drafted, runs afoul of the
prohibition in art. 48.