NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13877
CLAIRE FITZMAURICE & others1 vs. CITY OF QUINCY & another.2
Norfolk. May 6, 2026. - August 20, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Constitutional Law, Establishment of religion. Religion.
Municipal Corporations, Fire department, Police, Mayor.
Fire Fighter. Police. Injunction. Practice, Civil,
Preliminary injunction, Standing, Taxable inhabitants'
action, Motion to dismiss.
Civil action commenced in the Superior Court Department on May 28, 2025.
Motions for a preliminary injunction and to dismiss were heard by William F. Sullivan, J.
The Supreme Judicial Court granted an application for direct appellate review.
1 David Reich, Michael Cotter, Marianne Balsamo, Cynthia Roche-Cotter, Salvatore Balsamo, Jay Tarantino, Conevery Bolton Valencius, Matthew Valencius, Cody Hooks, Kathleen Geraghty, Lucille DiGravio, Sheryl LeClair, and Martha Plotkin.
2 Mayor of Quincy.
2
Joseph C. Davis, of the District of Columbia (Eric C. Rassbach & Andrea R. Butler, of the District of Columbia, & James S. Timmins, City Solicitor, also present) for the defendants.
Jessie J. Rossman (Suzanne Schlossberg & Rachel E. Davidson also present) for the plaintiffs.
The following submitted briefs for amici curiae:
Samuel J. Whiting for Massachusetts Family Institute.
Michael A. Heidler, John Heo, & David S. Carter, of Texas, Justin W. Aimonetti, of the District of Columbia, & Ryan Patrick McLane for National Fraternal Order of Police & another.
Gabriela Forero, Paul R. Johnson, & Frank J. Bailey for Pioneer New England Legal Foundation.
Dwight G. Duncan for Islam and Religious Freedom Action Team & another.
Richard P. Driscoll for National Association of Police Organizations.
Michael C. Gilleran for Quincy Firefighters, Local 92, International Association of Fire Fighters, & others.
Gene C. Schaerr & Joshua J. Prince, of the District of Columbia, & Daniel B. Winslow for Protect the First Foundation.
Robert Kingsley Smith & Therese J. Brown for Synod of Bishops of the Russian Orthodox Church Outside of Russia.
Joshua M. Daniels for American Humanist Association & others.
Isabel M. Marin, of the District of Columbia, Kevin P. Martin, Christopher J.C. Herbert, & Ryan H. Brown for Knights of Columbus.
John A. Meiser & Meredith H. Kessler, of Indiana, & Matthew D. Watts for International Association of Fire Fighters & another.
Brinton Lucas & Elise Kostial, of the District of Columbia, & Andrew E. Lelling for American Legion.
Russell B. Balikian & Abby H. Walters, of the District of Columbia, & Joseph V. Cavanagh, III, for Michael McConnell & another.
Mitchell Kosht for Caitlin Borgmann & others.
KAFKER, J. The mayor of the city of Quincy (city) seeks to
install two ten-foot-tall statues on the façade of the city's
new public safety building at taxpayer expense. One statue
depicts Saint Michael, an archangel with wings, stepping on the
3
head and neck of a demon.3 The other depicts Saint Florian, a
larger-than-life Roman soldier towering above a burning building
and extinguishing the fire with water from a single vessel.
Saint Michael and Saint Florian are recognized as religious
saints by the Catholic Church. They are also important symbolic
figures for police officers and firefighters, respected for the
values of bravery and honor they represent.
The plaintiffs, fifteen residents and taxpayers of the
city, sued the city and the mayor in his official capacity to
prevent the installation of the statues, arguing that the
expenditure of public funds on, and the display of, the statues
violate art. 3 of the Massachusetts Declaration of Rights, as
amended by art. 11 of the Amendments to the Massachusetts
Constitution, which provides: "all religious sects and
denominations . . . shall be equally under the protection of the
law; and no subordination of any one sect or denomination to
another shall ever be established by law." A Superior Court
judge granted the plaintiffs' motion for a preliminary
injunction and denied the city's motion to dismiss. The city
appealed, arguing the plaintiffs lack standing and the statues
are permissible under art. 3.
3 The city's brief refers to "Michael" while the plaintiffs' brief refers to "Saint Michael." The same is true for "Florian." As the city used the term "Saint" before each name in the contract commissioning the statues, we do the same.
4
We conclude that the plaintiffs have standing as taxpayers
under G. L. c. 40, § 53. We further conclude that the
constitutionality of the statues must be evaluated according to
the framework we set out in Colo v. Treasurer & Receiver Gen.,
378 Mass. 550 (1979), a decision that explored and applied the
evolving text, constitutional history, and purposes of art. 3.
That decision further considered, as helpful guidance,
additional factors recognized in Federal and State case law,
particularly the United States Supreme Court's decision in Lemon
v. Kurtzman, 403 U.S. 602 (1971), which reflected the Supreme
Court's establishment clause analysis at the time, to identify
improper intermingling of State and religion. Applying the
comprehensive reasoning of Colo, we conclude that the motion
judge did not abuse his discretion in granting the preliminary
injunction. We therefore affirm.4
4 We acknowledge the amicus briefs submitted by Quincy Firefighters, Local 792, International Association of Fire Fighters, Quincy Police Patrol Officers Association, and Quincy Police Superior Officers Association; National Fraternal Order of Police and Massachusetts Fraternal Order of Police; Islam and Religious Freedom Action Team and Jewish Coalition for Religious Liberty; Massachusetts Family Institute; Knights of Columbus; Pioneer New England Legal Foundation; National Association of Police Organizations; International Association of Fire Fighters and Professional Fire Fighters of Massachusetts; Protect the First Foundation; Synod of Bishops of the Russian Orthodox Church Outside of Russia; American Legion; American Humanist Association, Bend the Arc: A Jewish Partnership for Justice, Council on American-Islamic Relations-Massachusetts, DignityUSA, Dignity Boston, Global Justice Institute of the Metropolitan Community Church, Hindu American Foundation, Jewish Alliance for
5
1. Background. a. Facts. "We summarize the facts, which
have reasonable support in the record." Lieber v. President &
Fellows of Harvard College (No. 2), 488 Mass. 816, 817 (2022),
citing Doe v. Worcester Pub. Sch., 484 Mass. 598, 601 (2020).5
In 2017, the city began planning and constructing a new
public safety headquarters to replace the current police station
and to house the city's emergency operations center, and police,
fire, and information technology department offices. The
building is near the corner of Sea Street and Southern Artery,
two main thoroughfares in the city. It is a large, four-story
building approximately 120,000 square feet in size, which cost
approximately $175 million to acquire the land for, build, and
furnish. Residents go to the now-open building to, among other
things, obtain fire permits or records, file and obtain accident
or police reports, meet with police officers, speak with mental
health counselors, attend community meetings and trainings, or
utilize the prescription drug drop box.
Law and Social Action, Methodist Federation for Social Action, Sadhana Coalition, Society for Humanistic Judaism, and Unitarian Universalist Association; Michael McConnell and John Witte, Jr.; and Caitlin Borgmann, Alan Brownstein, Caroline Mala Corbin, Leslie C. Griffin, B. Jessie Hill, Frank S. Ravitch, Laura S. Underkuffler, and Jay D. Wexler.
5 The motion judge did not conduct an evidentiary hearing.
6
At some point in 2023, the mayor decided to commission two
statues for the façade of the building.6 A July 2023 contract
between the mayor's office and a sculptor in Italy commissioned
two ten-foot-tall "bronze sculptures representing Saint Michael
the Archangel the patron saint of Law Enforcement, and Saint
Florian as a protector of fire fighters and a protector against
fire and burning." The statue of Saint Michael depicts him with
the wings of an angel, bearing a shield and stepping on the head
and neck of a demon. The other statue depicts Saint Florian, a
Roman soldier who lived in the Fourth Century. The statue of
Saint Florian portrays a larger-than-life Roman soldier pouring
water from a pitcher onto a much smaller building. The statues
will be placed about halfway up the front of the prominent new
building. They are the only two statues and, indeed, the sole
adornments or decoration the city seeks to install on the front
of the building.
Saint Michael and Saint Florian have both religious and
secular significance. They are recognized as saints in the
Catholic Church. In Catholicism, Saint Michael is so recognized
as a celestial archangel, the leader of God's heavenly army who
cast the devil, Satan, out of heaven. The sacred scriptures of
6 The parties have agreed that the statues are to be analyzed as a set and not separately.
7
other faith traditions, including Judaism and Islam, also
recognize the archangel Michael as a significant figure.
Saint Florian is canonized and venerated as a saint in the
Catholic Church because "he was martyred for his faith and
because he saved a town from [burning] by praying for divine
intervention." In Catholic doctrine, saints are persons in
heaven who lived heroically virtuous lives, offered their lives
for others, or were martyred for the faith, and thus are worthy
of imitation.
Saint Michael and Saint Florian also have a special
significance to police officers and firefighters as symbols of
virtue, bravery, and valor. For example, a portrait of Saint
Michael is a common tattoo for police officers who have tattoos
related to their work, and some police awards and substance
abuse treatment centers have been named after him. As for Saint
Florian, municipalities across Massachusetts, including Quincy,
use the "Florian Cross" on their fire department badges; a union
hall for firefighters in Massachusetts is called Florian Hall;
International Firefighters' Day is celebrated on May 4, Saint
Florian's feast day in the Christian tradition; and an oftinvoked poem for fallen firefighters invites the deceased to
"[r]est with Saint Florian." Two Quincy first responders attest
in affidavits that the statues represent the values they aspire
to emulate in their professions.
8
By January 2025, the city had spent at least $761,378.75 in
public funds on the statues, which are anticipated to cost
$850,000. Although many aspects of the new building were
discussed at length during several city council meetings, most
councillors and the public only learned of the plan to install
the statues when a local newspaper reported on the commission on
February 8, 2025. One councillor reported that he had
previously been informed of the mayor's plans and stated that he
believes the statues "will bless our first responders," and that
he hopes first responders "might say a little prayer before they
go out on duty."
On February 24, 2025, the city council discussed the
statues at a public meeting for the first time. While five to
ten residents typically attend city council meetings, over two
hundred members of the public attended this meeting. There, the
mayor's chief of staff confirmed that the mayor had not
previously notified the city council of the plan to install the
statues.
Since February 2025, hundreds of city residents and at
least one city councillor have publicly opposed the statues. An
online petition opposing the statues garnered over 1,600
signatures, and nineteen faith leaders from the Quincy
Interfaith Network, belonging to many different faiths, issued a
9
public statement expressing "grave concerns" about the statues.7
Another councillor acknowledged that "the statues [are] clearly
contentious for everyone" and that "a bunch of" constituents
expressed their concerns about the statues to him.
b. Procedural history. On May 28, 2025, fifteen8 city
residents filed a complaint in the Superior Court against the
city and the mayor, seeking a judgment declaring that the
expenditure of public funds and planned installation of the
statues violate art. 3, and preliminary and permanent
injunctions prohibiting the defendants from expending more
public funds on the statues and from installing them. The
plaintiffs submitted declarations describing the religious
attributes of the statues, particularly their significance in
the Catholic religion, and stating that the statues send an
exclusionary and subordinating message to non-Catholics and that
some plaintiffs feel personally alienated and excluded by the
city's proposed installation. The defendants moved to dismiss
7 According to the Quincy Interfaith Network, "[e]recting these statues sends a message that there are insiders and outsiders in this community," because saints play an important role "for many of our Roman Catholic neighbors" but "our diverse city is composed of many people of faith and those who do not identify with any religious tradition."
8 One plaintiff voluntarily dismissed her claim; another has moved out of Quincy and intends to move to dismiss his claim once the Superior Court's stay of the proceedings is lifted. Of the other thirteen plaintiffs, twelve pay property taxes in Quincy.
10
the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974), arguing that the plaintiffs lack standing and have
failed to state a claim.
After a nonevidentiary hearing, the motion judge granted
the plaintiffs' motion for a preliminary injunction and denied
the defendants' motion to dismiss. The judge concluded that the
plaintiffs had standing, both as a group of more than ten
taxpayers under G. L. c. 40, § 53, and as individuals having
alleged cognizable constitutional injuries. He also concluded
that the plaintiffs had demonstrated a likelihood of success on
the merits under the test articulated in this court's decision
in Colo, 378 Mass. at 558, for art. 3 claims. Since the time of
the motion judge's order, the statues have been in a storage
facility in Randolph.
We allowed the city's application for direct appellate
review to address the merits of the order granting the
preliminary injunction, including whether the city's expenditure
of funds and display of these statues violates art. 3.
2. Discussion. a. Standing. As an initial matter, the
city argues that the plaintiffs lack standing to bring this
action.
We conclude that the plaintiffs have standing under G. L.
c. 40, § 53, known as the "ten-taxpayer statute." The tentaxpayer statute provides that "not less than ten taxable
11
inhabitants" may petition a court to restrain a city from
"expend[ing] money . . . for any purpose or object or in any
manner other than that for" which such city "has the legal and
constitutional right and power to . . . expend money." G. L.
c. 40, § 53. See G. L. c. 40, § 1 ("all laws relative to towns
shall apply to cities"). Taxpayer plaintiffs who are so
qualified are empowered to "act as private attorneys general,
enforcing laws designed to protect the public interest."
Edwards v. Boston, 408 Mass. 643, 646 (1990).
The plaintiffs here satisfy these statutory criteria: they
include twelve Quincy taxpayers who allege that the city has
expended public money to commission, and will expend further
public monies to transport and install, statues depicting
Catholic saints on a government building in violation of art. 3.9
The city's arguments to the contrary are unpersuasive.
Citing Edwards, 408 Mass. at 646, the city first urges that
the ten-taxpayer statute only provides a mechanism for enforcing
so-called "spending statutes" -- that is, statutes enacted with
the purpose of preventing the abuse of public funds. But this
9 Because we conclude that the plaintiffs have standing under G. L. c. 40, § 53, we need not decide whether they also have constitutional standing. See Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 386 (2018) ("A party has standing when it can allege an injury within the area of concern of the . . . constitutional guarantee under which the injurious action has occurred").
12
limitation is belied by both the text and purpose of the
provision and the relevant case law. The ten-taxpayer statute
speaks of restraining the expenditure of funds for "any purpose
or object or in any manner" except where the municipality "has
the legal and constitutional right" to so act (emphases added).
G. L. c. 40, § 53. By the statute's plain terms, then, it
confers standing to challenge not only violations of specific
spending statutes, but also unlawful expenditures such as those
alleged in the instant case. See Hollum v. Contributory
Retirement Appeal Bd., 53 Mass. App. Ct. 220, 224 (2001) ("The
word 'any' is generally used in the sense of 'all' or every' and
its meaning is most comprehensive" [citation omitted]). See
also Colo, 378 Mass. at 554 n.7 (interpreting G. L. c. 29, § 63;
analogous statute applicable to Commonwealth taxpayers "provides
the necessary standing" where plaintiffs challenged
constitutionality of expenditure of public funds to clergy for
legislative prayer). Nor would implying such a limitation
further the statute's purpose of allowing "this court to
determine the legality of an appropriation." Richards v.
Treasurer & Receiver Gen., 319 Mass. 672, 676 (1946). Other
cases construing the ten-taxpayer statute, including Edwards,
have said nothing to the contrary. See, e.g., Edwards, supra at
645-647 (discussing enforcement of "spending statute" under
G. L. c. 40, § 53, where plaintiffs argued city's exercise of
13
option in contract with city service provider violated statute
requiring that certain municipal contracts be awarded by
advertised competitive bidding).
The city also asserts that the plaintiffs lack standing
because they have not shown that their tax burden will increase
if the statues are installed. The statues have already cost
$761,378.75 in public funds. Additional moneys will be required
to transport the statues from storage and affix them to the
public safety building's façade.10 For these reasons, the tentaxpayer statute confers standing on the plaintiffs to enjoin
further expenditure and installation of the statues. See G. L.
c. 40, § 53.11
10We also note that this is not a case where such costs will be reimbursed. See, e.g., Howard v. Chicopee, 299 Mass. 115, 120 (1938) ("the entire cost of labor and materials furnished by Chicopee in connection with such installation has been paid to Chicopee by the Holyoke company," and therefore, "the petitions have no ground for relief under [G. L. c. 40, § 53]").
11Although the anticipated transportation and installation costs are sufficient to confer standing under the ten-taxpayer statute in this case, as noted by the motion judge and discussed further infra, undisputed facts in the record demonstrate that public funds were expended to commission the statues several years before the mayor's plans were in any way made public. As we have previously emphasized, "no surreptitious attempt to outwit the [ten-taxpayer] statute . . . can be tolerated, and under such circumstances relief would be afforded" even after an illegal payment has already been made. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 260 (1925).
14
b. Grant of preliminary injunction. "We review the grant
or denial of a preliminary injunction to determine whether the
[motion] judge abused his discretion, that is, whether the judge
applied proper legal standards and whether there was reasonable
support for his evaluation of factual questions." Doe v.
Superintendent of Sch. of Weston, 461 Mass. 159, 164 (2011),
quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741
(2008). Furthermore, "[w]here, as here, no evidentiary hearing
was held and the record consists of affidavits and other
documents, although 'weight will be accorded to the exercise of
discretion by the judge below, . . . we may draw our own
conclusions from the record.'" Lieber, 488 Mass. at 821,
quoting Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609,
616 (1980). Finally, as this is a ten-taxpayer statute case,
"[i]n order to obtain a preliminary injunction, the plaintiffs
must show a likelihood of success on the merits and that the
requested relief would be in the public interest; they need not
demonstrate irreparable harm." Caplan v. Acton, 479 Mass. 69,
75 (2018).
The city argues that the judge erred in granting the
plaintiffs' motion for a preliminary injunction because the
plaintiffs have not satisfied the first preliminary injunction
factor by showing that expenditure of further funds and
installing the statues likely violates art. 3. Before turning
15
to the facts of this case, we begin by describing the text,
history, and purpose of art. 3 and the legal standards we have
articulated for evaluating claims brought under this
constitutional provision.
i. Article 3 and the Colo standards. Article 3, adopted
in 1780, originally stated,
"[T]he legislature shall, from time to time, authorize and
require, the several towns, parishes, precincts, and other
bodies politic, or religious societies, to make suitable
provision, at their own expense, for the institution of the
public worship of GOD, and for support and maintenance of
public Protestant teachers of piety, religion, and morality
. . . ."
Colo, 378 Mass. at 556 n.10. As we have previously explained,
"[b]ecause Congregationalists were the overwhelming majority of
the population in Massachusetts at the time, art. 3 functioned
as a de facto general assessment in favor of the Congregational
Church." Caplan, 479 Mass. at 76 n.7.
In 1833, "[a]fter decades of 'lawsuits, bad feeling, and
petty persecution,'" art. 3 was amended. Caplan, 479 Mass. at
76, quoting S.E. Morison, A History of the Constitution of
Massachusetts 24 (1917). As amended, art. 3 now provides, in
relevant part, that "all religious sects and denominations,
demeaning themselves peaceably, and as good citizens of the
[C]ommonwealth, shall be equally under the protection of the
law; and no subordination of any one sect or denomination to
another shall ever be established by law."
16
We established a framework for evaluating claims under
art. 3 in Colo, 378 Mass. 550. In that case, taxpayers
challenged the use of public money to pay the salaries of the
chaplains of the Massachusetts House of Representatives and
Senate, as a violation of, inter alia, art. 3 and the First
Amendment to the United States Constitution. Id. at 551-552.
The chaplains were both Catholic priests who opened the daily
legislative sessions of their respective chambers with a
voluntary prayer. Id. at 551.12
The court emphasized that "[t]here are no simple tests or
precise lines by which we can determine the constitutionality of
the challenged payments." Id. at 554. Instead, in determining
whether art. 3 is violated, the court stated, "we must view the
purposes and history of the practice in relation to the purposes
and history of the governing constitutional amendments, and in
the light of what can be gleaned from decisions on somewhat
similar practices by other State and Federal courts" (footnote
12 The court noted, however,
"The mere fact that two persons of a particular faith have
been appointed to these positions for over the past twenty
years does not demonstrate that any other person has ever
been denied appointment (a necessary element of any equal
protection claim), or that such decisions were based on
religious discrimination."
Colo, 378 Mass. at 557.
17
omitted). Id. The court further explained that this is a
complex task because a review of the history and purposes of the
relevant constitutional clauses, as well as the case law,
demonstrates that "[i]t has never been thought either possible
or desirable to enforce a regime of total separation [between
church and State]," thereby making line drawing between
permissible and prohibited intermingling of church and State
difficult to discern.13 Id., quoting Committee for Pub. Educ.
& Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973).
The court's historical analysis in Colo is also informative
and nuanced. The court put the contested practice --legislative chaplains -- into historical context, explaining
that legislative chaplains reflected a long-standing practice
and tradition: legislative chaplains performed this role at the
time of the passage of the First Amendment, without objection.
13As the Colo court concluded, "the 'hermetic separation' of church and State is an impossibility which the Constitution has never required. . . . The complete obliteration of all vestiges of religious tradition from our public life is unnecessary to carry out the goals of nonestablishment and religious freedom . . ." (citations omitted). Colo, 378 Mass. at 560-561. See Kent v. Commissioner of Educ., 380 Mass. 235, 245 (1980) ("This court has recognized the unwisdom, as well as the futility, of trying to separate Church from State by an impenetrable barrier").
18
Id. at 555-556.14 The same was true in Massachusetts at the time
of the passage of the Declaration of Rights. Id. at 556.
The court's historical analysis in Colo further examined
the evolution of Massachusetts constitutional provisions, and
how the contested practice continued throughout that evolution.15
The court recounted how Massachusetts moved from public support
of the Christian religion to equal protection and
nonsubordination of all religious sects and denominations. Id.
The court also discussed how the "appropriation of public funds
for religious purposes was debated at the Constitutional
Convention of 1917-1918, when various amendments were proposed
14The court noted James Madison nonetheless had private concerns regarding the practice. Colo, 378 Mass. at 555-557 & nn.9, 12.
15 The court also discussed societal change more generally:
"[T]he degree of intermingling of religious and secular
life was much greater at the time the First Amendment was
being debated than it is today. Most of the original
States, including Massachusetts, had established churches
supported directly by tax dollars, and there was often
little tolerance for dissenting religious views. The
drafters and ratifiers of the First Amendment designed it
to address far more pervasive threats to religious liberty
and the separation of church and State than any that exist
today."
Colo, 378 Mass. at 555.
19
[and passed] to prohibit public funding of parochial schools."
Id.16
The court then explained how the contested practice of
legislative chaplains continued, without opposition, even as the
constitutional provisions themselves evolved and tightened the
restrictions against public support or public preferences for
particular religions:
"Throughout this history of often vigorous debate about the
proper relationship between church and State, the
appointment and payment of legislative chaplains continued
without apparent dissension. As one delegate (John W.
McAnarney of Quincy) to the 1917-1918 Constitutional
Convention remarked, the sentiment which led to the
convention's approval of an 'anti-aid amendment' was not
that 'the State is opposed to religion, . . . [we] bear
testimony to that every morning in this Convention, sir,
when we have the divine aid and assistance invoked to guide
us in our deliberations." (Footnote omitted.)
We have characterized the purposes of art. 18 of the
16
Amendments to the Massachusetts Constitution, as amended by arts. 46 and 103 of the Amendments, known as the "anti-aid amendment," as follows:
"Proponents of [the anti-aid amendment] 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), citing 1 Debates in the Massachusetts Constitutional Convention 1917-1918, at 68, 74-79, 161-164 (1919). See Caplan, 479 Mass. at 80-81.
20
Id. at 556, quoting 1 Debates in the Massachusetts
Constitutional Convention 1917-1918, at 190 (1919).
Although the court considered this history important, its
analysis did not conclude there. Instead, the court held that
"the mere fact that a certain practice has gone
unchallenged for a long period of time cannot alone
immunize it from constitutional invalidity, 'even when that
span of time covers our entire national existence and
indeed predates it.' Walz v. Tax Comm'n of the City of
N.Y., 397 U.S. 664, 678 (1970). The long history of a
certain practice, however, and its acceptance as an
uncontroversial part of our national and State tradition do
suggest that we should reflect carefully before striking it
down."
Colo, 378 Mass. at 557.
In addition to looking at the relevant constitutional text,
purposes, and history, the court was also "aided by" the
criteria considered by other State and Federal courts,
particularly those articulated by the United States Supreme
Court in Lemon, 403 U.S. 602, which, at the time, were used to
evaluate anti-establishment claims under the First Amendment:
"(1) [I]s there a 'secular legislative purpose,' (2) does the
primary effect of the challenged practice 'neither advance nor
inhibit religion,' and (3) is there avoidance of 'excessive
government entanglement' with religion?" Colo, 378 Mass. at
558, quoting Lemon, supra at 612-613. The court also noted a
"significant fourth factor," not expressly identified in Lemon,
"that is, whether the challenged practice has a 'divisive
21
political potential.'" Colo, supra, quoting Meek v. Pittenger,
421 U.S. 349, 374 (1975) (Brennan, J., concurring in part and
dissenting in part). The court, however, repeatedly emphasized
that these criteria were not to be considered as "mechanistic
tests" or "precise limits to the necessary constitutional
inquiry," but rather helpful "guidelines to analysis" that were
"equally appropriate to claims brought under cognate provisions
of the Massachusetts constitution" (quotation omitted). Colo,
supra.17
Applying these guidelines along with the constitutional
text and history, the court in Colo ultimately upheld the
employment of legislative chaplains based on the long-standing
history and acceptance of opening prayers; the secular purposes
of the tradition to "prompt[] legislators to reflect on the
gravity and solemnity of their responsibilities"; the primary
effect, which the court concluded was not to advance religion
but to reflect this gravity and solemnity of the occasion of the
17As this court cannot provide less protection against the establishment of religion under art. 3 than the Supreme Court allows under the establishment clause of the First Amendment, consideration of the Supreme Court's relevant anti-establishment test at the time was a necessary part of the court's analysis in Colo, where the court was not concluding the conduct in question was protected by art. 3. Cf. Commonwealth v. DeJesus, 489 Mass. 292, 296 (2022) ("the Massachusetts Constitution may not provide less protection to defendants than the Federal Constitution); Commonwealth v. Robinson, 480 Mass. 146, 147 n.3 (2018), S.C., 493 Mass. 303 (2024) (same).
22
opening of the legislative session; the brief duration and the
voluntary nature of the prayer; and the absence of evidence that
the practice caused any divisiveness. Id. at 554, 559-560.
We recognize that the Supreme Court has since abandoned
Lemon and substituted in its place an analysis by "reference to
historical practices and understandings." Kennedy v. Bremerton
Sch. Dist., 597 U.S. 507, 534-535 (2022), quoting Greece, N.Y.
v. Galloway, 572 U.S. 565, 576 (2014). The city urges us, as a
result, to reject "the Lemon test" as a matter of Massachusetts
constitutional law. But the Colo framework, as explained above,
is neither limited to, nor dependent upon, a "mechanistic"
application of the Lemon factors. Importantly, our analysis in
Colo began with a careful and nuanced examination of the
purposes and history of both the challenged practice and the
relevant constitutional amendments. It also recognized that the
text, purpose, and history of art. 3 have evolved over time,
reflecting societal changes as well. See generally Kligler v.
Attorney Gen., 491 Mass. 38, 58 (2022), quoting Obergefell v.
Hodges, 576 U.S. 644, 664 (2015) ("History and tradition guide
and discipline [the] inquiry but do not set its outer
boundaries. . . . That method respects our history and learns
from it without allowing the past alone to rule the present").
Only then did we in Colo turn to the Lemon factors, as well as
an evaluation of the potential for divisiveness resulting from
23
the contested practice, for additional guidance. The Colo
framework therefore properly focuses on constitutional text,
history, purpose, and factors the case law has long recognized
as helpful in identifying improper intermingling of State and
religion. This comprehensive framework, including consideration
of the purposes of the contested practice, its primary effects,
and its potential for divisiveness, has also been consistently
utilized by this court, including in its enforcement of the
anti-aid provisions of our State Constitution. See, e.g.,
Caplan, 479 Mass. at 82-83. For all these reasons, we conclude
that Colo remains good law and the proper framework for
evaluation of contested practices under art. 3.18
18We further note the importance of stare decisis. Although stare decisis is not "a universal, inexorable command," Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting), "adhering to precedent is our 'preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process,'" Shiel v. Rowell, 480 Mass. 106, 108 (2018), quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991). See Johnson v. Settino, 495 Mass. 42, 51 (2024), quoting Franklin v. Albert, 381 Mass. 611, 617 (1980) ("We depart from precedent where 'the values in so doing outweigh the values underlying stare decisis'").
As for the Lemon factors themselves, we may of course continue to consider critical commentary from the Supreme Court and elsewhere in determining just how helpful those factors actually are in identifying improper intermingling under art. 3. See, e.g., Kennedy, 597 U.S. at 534, quoting Capitol Sq. Review & Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (plurality opinion) (stating that application of Lemon has "'invited chaos' in lower courts, led to 'differing results' in
24
ii. Likelihood of success on the merits. Accordingly, we
assess the plaintiffs' likelihood of success on the merits under
the Colo framework described above. We begin with the text,
purposes, and history of art. 3. As the Colo court explained,
art. 3 originally gave preference to a particular religious sect
and was amended to abolish such a preference and to provide for
equal protection and nonsubordination of other sects and
denominations.
The contested practice here raises concerns at the core of
the text, purposes, and history of the amendment of art. 3:
whether the city is singling out a particular religion for
special treatment.19 See Catholic Charities Bur., Inc. v.
Wisconsin Labor & Indus. Review Comm'n, 605 U.S. 238, 248 (2025)
materially identical cases, and created a 'minefield' for legislators"). Finally, we recognize that the Supreme Court is no longer employing these factors in its own anti-establishment jurisprudence under the First Amendment, so we must consider the Supreme Court's more recent precedent, and not its previous application of the Lemon test, when we determine whether we are providing at least as much protection against the establishment of religion as the Supreme Court, as we are required to do by the Federal Constitution. See note 17, supra.
19 The motion judge determined:
"The depiction of the statues, their association with one
religion, and the various reactions of community members,
City Council members, and faith leaders demonstrate
Plaintiffs will likely be able to show that the statues
convey to the public observing them the implicit government
support for the religious doctrine and adherents of
Catholic/Christian faith, and as a result, the
subordination of other religions."
25
("the 'fullest realization of true religious liberty requires
that government' refrain from 'favoritism among sects'"
[citation omitted]); Van Orden v. Perry, 545 U.S. 677, 698
(2005) (Breyer, J., concurring), quoting School Dist. of
Abington Township, Pa. v. Schempp, 374 U.S. 203, 305 (1963)
(Goldberg, J., concurring) ("The Court has made clear, as
Justices Goldberg and Harlan noted, . . . that government must
. . . 'effect no favoritism among sects or between religion and
nonreligion' . . ."). See also County of Allegheny v. American
Civ. Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573,
590 (1989) (County of Allegheny) ("In the course of adjudicating
specific cases, this Court has come to understand the
[e]stablishment [c]lause to mean that government may not promote
or affiliate itself with any religious doctrine or organization
. . ."). The two statues are both of Catholic saints. They are
each ten feet tall, and they will be prominently placed on the
front of the city's public safety building facing a busy street.
The plaintiffs' unrebutted expert attested that "patron saints
are particular to Catholicism"; the depictions of Saint Michael
and Saint Florian in these statues "are consistent with
iconography of each religious figure within Catholic tradition";
and the symbols and objects depicted "are all central to the
iconographies of each saint, which are not intelligible without
reference to Catholic tradition." Indeed, one is an archangel
26
with wings, and the other is portrayed as performing one of the
miracles for which he is venerated by the Catholic Church.
The likelihood that these statues of religious figures
closely associated with the Catholic faith could be viewed by
the public as endorsement of a particular religion, and thus
subordination of others, is enhanced by the fact that the
statues are not part of a larger collection of statues and
monuments that includes nonreligious ones, or statues of figures
of particular importance to other religions. Contrast Van
Orden, 545 U.S. at 681, 691 (plurality opinion) (Ten
Commandments monument situated among seventeen monuments and
twenty-one historical markers commemorating Texan identity did
not violate establishment clause); County of Allegheny, 492 U.S.
at 620 (Blackmun, J.) ("it is not sufficiently likely that
residents of Pittsburgh will perceive the combined display of
the [Christmas] tree, the [explanatory] sign [describing the
holiday season and winter festivals], and the menorah as an
endorsement or disapproval . . . of their individual religious
choices" [quotations and citation omitted]); Lynch v. Donnelly,
465 U.S. 668, 679-683 (1984) (crèche in city's annual holiday
display had permissible purpose and effect when accompanied by
secular symbols and considered "in the context of the Christmas
season"); American Atheists, Inc. v. Port Auth. of N.Y. & N.J.,
760 F.3d 227, 240, 242-244 (2d Cir. 2014) (Christian cross
27
displayed in museum at site of September 11 attack had
permissible purpose and effect where situated amidst secular
artifacts and textual panel explained its historical
significance).20 Rather, they stand tall and alone, adorned with
Catholic iconography. See County of Allegheny, supra at 598
(single crèche as primary element of display in government
building demonstrated government endorsement of religious
message).
These statues are also not long-standing historic monuments
important to our common history, unlike many of the examples
highlighted by the city. They are unlike, for example, a
Nineteenth Century statue in Plymouth honoring the Mayflower
passengers fleeing religious persecution, featuring a woman
clutching a Bible, and cross-shaped grave markers of soldiers
20The statue of Moses in the Great Hall of the John Adams Courthouse, for example, is one of sixteen allegorical statues representing not only "Religion," but also virtues and concepts such as "Law," "Justice," and "Reason"; such installations are "part of a continuing tradition that started in antiquity." Bresler, Virtues in the Great Hall: Understanding the Allegorical Statues in the John Adams Courthouse, 102 Mass. L. Rev. 71, 71, 81 (2021). A marble frieze of Moses in the Supreme Court building is similarly included in a series of great lawgivers of history. See id. at 81-82. See also County of Allegheny, 492 U.S. at 652-653 & n.13 (Stevens, J., concurring in part) ("Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside [Moses, Confucius, and Mohammed], however, signals respect not for great proselytizers but for great
lawgivers. . . . All these leaders, of course, appear in friezes on the walls of our courtroom").
28
who died for our country in the World Wars, monuments with
obvious religious origins but ones that have also taken on a
common, secular meaning and significance over time. See
American Legion v. American Humanist Ass'n, 588 U.S. 29, 38
(2019) ("For nearly a century, the Bladensburg Cross has
expressed the community's grief at the loss of the young men who
perished, its thanks for their sacrifice, and its dedication to
the ideals for which they fought"). As the Supreme Court has
explained, removal of such historic monuments presents a
different set of issues. See id. at 56-57; Colo, 378 Mass. at
557. Here, by contrast, without such secular meaning built
through common history, these new statues have a greater
potential to be perceived as government endorsement of a
particular religion, and subordination of other religions, in
violation of art. 3.
In sum, the preliminary injunction record reflects that the
statues are large and will stand alone, they are brand new
rather than long standing, they are closely affiliated with a
particular religion, and they thus may convey to observing
members of the public implicit government support for that
religion and, as a result, subordination of other religions.
All of this supports the motion judge's conclusion that the
plaintiffs have a likelihood of success on the merits.
29
We also discern no abuse of discretion in the motion
judge's evaluation of the likelihood of success even if the
statues serve secular as well as religious purposes. See
Caplan, 479 Mass. at 87 n.22 ("whether an impermissible purpose
is the sole motivating purpose behind the [government action],
or only one purpose among many, may be considered in determining
the weight to accord that factor"); Colo, 378 Mass. at 559
(discussing both secular and religious aspects of opening
invocations). We recognize that there is evidence in the record
-- for example, the presence of the Florian Cross on fire
department badges and the naming of Florian Hall, as well as the
naming of certain police awards after Saint Michael -- that
these saints are important symbols of courage, virtue, and valor
for first responders, including first responders of different
faiths and those without religious faith. The affidavits of the
Quincy first responders credibly support the secular
significance of these symbols.21 The record before the motion
judge, however, also demonstrates that these symbols have
distinctly Catholic roots and references, as explained by the
plaintiffs' unrebutted expert. As the motion judge found, the
21If this litigation proceeds, the evidence regarding the secular significance of Saint Michael and Saint Florian, including in particular whether this secular significance would be understood by members of the public, may of course be further developed.
30
statue of Saint Michael "is overtly religious, displaying large
wings of an archangel and standing on a demon representative of
Satan," and would be so understood by an objective observer.
The message conveyed by Saint Florian's statue is also difficult
to discern without an explanation of its historic and religious
origins. On this record, the motion judge's conclusion that the
statues' primary effect will be to advance a religious message
therefore does not constitute an abuse of discretion. See
Society of Jesus of New England v. Commonwealth, 441 Mass. 662,
674, S.C., 442 Mass. 1049 (2004) ("With regard to the test of
'effect' on religion, we must look at the law's 'principal or
primary effect' . . ." [citation omitted]). There is reasonable
factual support in the record for his conclusion, even if there
is evidence of a secular as well as a religious purpose to the
statues.22
22In so concluding, we discern no abuse of discretion by the motion judge in rejecting the mayor's affidavit. Here, the motion judge was "not persuaded by the Mayor's self-serving assertions [of only a secular purpose], particularly in light of his curious actions of commissioning the statues without public knowledge." As the Supreme Court has explained, "[w]hen a governmental entity professes a secular purpose for an arguably religious policy, the government's characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to distinguish a sham secular purpose from a sincere one" (quotation, citation, and alteration omitted). Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). See McCreary County, Ky. v. American Civ. Liberties Union of Ky., 545 U.S. 844, 864 (2005) ("although a legislature's stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary
31
There is also reasonable support in the record for the
motion judge's determination that the statues have caused
divisiveness. More than two hundred people attended the first
city council meeting after the plan for the statues was publicly
revealed, as opposed to the usual five to ten attendees. Since
then, hundreds of residents have publicly expressed opposition
to the statues; one city councillor has described how
contentious the statues are for his constituents; an online
petition opposing the statues garnered over 1,600 signatures;
and faith leaders from the Quincy Interfaith Network issued a
public statement expressing "grave concerns" about the statues.23
Finally, the city, without supporting analysis, also
contends that prohibiting the statues under art. 3 would violate
to a religious objective"). Based on the abbreviated record before the motion judge, the judge could reject the affidavit for the reasons stated. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 645 (1987) ("a preliminary injunction, by definition, must be granted or denied after an abbreviated presentation of facts and the law"). Of course, if this litigation continues, the mayor, as the person solely responsible for the selection of the statues, will be subject to further inquiry, including the "crucible of cross-examination," to determine whether he selected the statues for secular purposes as he contended in his affidavit, or to impress and impose his own religious beliefs on the city, or for a combination of both purposes. Commonwealth v. DeOliviera, 447 Mass. 56, 57 (2006), quoting Crawford v. Washington, 541 U.S. 36, 61 (2004).
23It is less clear, and we need not decide, whether the record reasonably supports the motion judge's determination that installing the statues will foster excessive government entanglement with religion.
32
the United States Constitution because it amounts to hostility
to religion. The Supreme Court has emphasized that
"the government, if it is to respect the Constitution's
guarantee of free exercise, cannot impose regulations that are
hostile to the religious beliefs of affected citizens . . . .
The [f]ree [e]xercise [c]lause bars even subtle departures from
neutrality on matters of religion" (quotation and citation
omitted). Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm'n, 584 U.S. 617, 638 (2018). The instant case, however,
presents no free exercise claim. The city itself has no free
exercise rights, under either the State or the Federal
Constitution, as the free exercise clauses protect private
religious expression -- not the government's -- from government
interference. See First Amendment to the United States
Constitution; Kennedy, 597 U.S. at 529. We also agree that
"hostility toward religion . . . has no place in our
[e]stablishment [c]lause traditions." American Legion, 588 U.S.
at 38, quoting Van Orden, 545 U.S. at 704 (Breyer, J.,
concurring). On this record, however, as the motion judge
determined, the issue presented is not government hostility to
religion but government preferential treatment of a particular
religion.
For all these reasons, we conclude that the judge did not
abuse his discretion in evaluating the likelihood of success.
33
iii. The public interest. The other factor in determining
whether the plaintiffs are entitled to the preliminary
injunction -- the public interest -- weighs strongly in favor of
the plaintiffs. As the motion judge determined, the plaintiffs
have demonstrated a reasonable likelihood that the city has
violated important constitutional rights and has spent, and
plans to continue to spend, taxpayer dollars in violation of
those rights that will not be recoverable. Furthermore, as the
motion judge determined and as the plaintiffs' declarations in
the record supported, were the statues to be installed for the
duration of this litigation, the plaintiffs and other members of
the public would have to confront them regularly, experiencing
feelings of subordination given their own religious beliefs or
nonbeliefs.
In contrast, as the motion judge also determined, the
potential harm to the city is minimal. The building is open and
functioning without the statues. Contrast LeClair v. Norwell,
430 Mass. 328, 339 (1999) ("By delaying the design services
contract, the town will likely be excluded from the priority
list for State funding for school construction. If an
injunction were entered, the town would lose or delay receipt of
substantial grant funding, thereby potentially delaying school
construction and increasing design and construction costs").
The statues are safely in storage pending the outcome of the
34
litigation. This is therefore not a case where a preliminary
injunction interferes with the government's interest in any
meaningful way.
In sum, the public interest weighs heavily in favor of the
preliminary injunction.
3. Conclusion. Because the plaintiffs have demonstrated a
likelihood of success on the merits to show that the statues
violate art. 3, and the public interest weighs in the
plaintiffs' favor, the order granting the plaintiffs' motion for
a preliminary injunction and denying the defendants' motion to
dismiss is affirmed.
So ordered.